Volume 121 — New York Appellate Division Reports

<p>Trial — liability of joint tort feasors — setting aside verdict.</p> <p>Vjpien in an action for negligence against joint tort feasors the jury renders an entire verdict against all, the court is without power to set aside the verdict ás to one defendant and refuse to set it aside as to others. The recovery must be set aside or sustained as to all, and when a new trial has been granted to one defendant .a verdict against the other will he set aside.</p> <p>If two persons or corporations are jointly guilty of negligence which results in . injury to a third person, he may recover a general verdict against both.</p>

• Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 15th day of August, 1906,- upon án order .entered on the same day, .affirming a judgment rendered by the ■Municipal Court of the city of Buffalo on the 13th day .of June, 1906, -and also from the said order Of affirmance.

<p>Municipal Court — equitable jurisdiction —landlord and tenant — right of renewal — waiver.</p> <p>The Municipal Court of the city of Rochester is without equitable jurisdiction, and cannot, in a proceeding to dispossess ■ a tenant, eliminate clauses in the’ lease. ' '</p> <p>When a lease requires a tenant to give written notice of an intention to renew on or before the day the lease expires, mere testimony that the. landlord’s agent, before the expiration of the lease, in answer to a verbal statement that the tenants would stay, said “all right,” does not establish a waiver of the written notice to renew. '</p> <p>Williams and Robson, JJ., dissented.</p>

Appeal by the defendant, David Rovall, from a judgment of the County Court of the county of Erie in favor of the plaintiff, entered in the office of tlie clerk of. said county on the 18th day of December, 1906, upon the decision of the court rendered after a trial without a jury.

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 Jefferson on the 14th day of December, 1906, upon the report of a referee:

<p>Appeal by the defendant, the Inter-Ocean Telephone and Telegraph Company, from a- judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of January, 1907, Upon the decision, of the court rendered aftér a trial at the Monroe Trial Term, a jury having been waived, directing that the- defendant remove certain poles and wires erected and strung upon and .along the plaintiff’s, premises.</p>

, Appeal by the plaintiff, Jemima Crane, -from a judgment of the Supreme Court -in favor of the defendants, entered in the office of the cleric of the county of Oswego on the 15th day of May,. 1906, upon the report of a referee, dismissing the complaint upon the merits.

.Appeal by. the defendant,' the Peck Hardware Company-,, from a judgment of the County Court of Ontario county .in-favor ,qf • the plaintiff, entered in the'office, of the clerk of-said county-on the . 19th day of June, 1906, Upon the verdict of a jury,, and also from ' ’ an order entered in said clerk’s, office on the 10th day of July, 1906, denying . the defendant’s motion for a- new trial made upon .the minutes,' . ' ■ A--.

Appeal by the plaintiff, Charles F. Heffron, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 7th day of August, 1905, granting the defendant’s motion to set aside the verdict of a . jury theretofore rendered in favor of the plaintiff.

<p>Public officer — district attorney — change of venue—extra compensation.</p> <p>It seems,'that the district attorney of the county, where an'indictment is"found continues in charge of the case, although removed to another county for trial.</p> <p>Although the trial of an indictment is changed to another county and the district attorney of that county is employed by the district attorney-of the county from which the cause was removed to assist at the trial, he is not entitled to additional compensation, the same Being prohibited by article 8, section 38 of the New York Constitution. . ,</p> <p>Kíujse and Robson, JJ., dissented.</p>

Appeal by the defendant, The Acker Process Company, from a judgment of the Supreme' Court in favor óf the plaintiff, entered in the office of the clerk*of the county of Miagara on the 27th day of June, 1906, upon the verdict of '& jury, and also from an order entered in said clerk’s office on the 2d day of July, 1906, denying -the defendant’s motion for a new trial made upon the minutes.

<p>Railroad — negligence -—boarding moving train — fall from platform caused by sudden jolt. .</p> <p>The plaintiff, a passenger on the defendant’s train, alighted at a -water tank- at which the locomotive stopped to take water.- He hoarded the train while it ■was in motion, and while standing on the tower step, grasping the hand rails with h'oth hands, was thrown and injured by a sudden forward movement of the'train. There was no evidence that the engineer or any one in control of the train had knowledge of his position.</p> <p>Held, that, assuming-the plaintiff to he free, from contributory negligence, he was not entitled to recover for injuries so sustained.</p>

<p>Master and servant — extra work — proof of contract — damage — overpayments offset.</p> <p>When the complaint in an action to recover for overtime work alleges that the defendant-entered into a written contract with a union of which the plaintiff was a member, fixing the hours of labor, and that the plaintiff' entered into defendant’s employ, he may show ■ by parol evidence that, the defendant recognized that he was working under the terms of the written contract.</p> <p>When it appears that the plaintiff worked for the .defendant for two years the latter may show, under denials, that the plaintiff worked overtime and. allegations of payment, that during the second year the plaintiff, received full day’s pay on occasions when he had not worked the required number of hours to reduce the claim for overtime work during the first year.</p>

Appeal by the plaintiff, Peter Arras, from a judgment of the Supreme Court in favor of the defendant, entered in the office óf the clerk of. the county of Genesee on the 5th day of September, 1905, upon the dismissal of the complaint, by direction of the court at the close of the -plaintiff’s case at the Genesee Trial Term, and also from an order entered in said clerk’s office on the 5tli day of September, 1905, denying the plaintiff’s motion fora new trial made Upon the…

. Appeal by the defendant, the Town of New Albion, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 12th day of November, 1906, upon the verdict of a jury for $5,000, and also' from an order entered in said clerk’s office on the 8th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Tonawanda Board and . Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county of Erie on the 14tli day of March, 1907, upon the verdict of a jury for $800, and also from an order entered in said clerk’suffice on the 2.1st ffp,y of February, 1907, denying the defendant’s motion for a new trial made, upon the minutes.

<p>■ Motion by the defendant, the New York Central and Hudson Biver Bailroad Company, for a new trial upon a case containing ■ ■ exceptions, ordered to be -heard at the Appellate'Division in the first.instance- upon the dismissal, of the complaint by direction-of ■ the court at the - close of the plaintiff’s' case' upon a trial at the Monroe Trial Term..' .'</p>

<p>Appeal by the defendant, the' Continental Casualty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th ' day of September, 1906, upon the verdict of a jury, and.also from an order entered in said clerk’s office on the 5th day of September, 1906, denying the defendant’s motion fór a neiv trial made upon the minutes..</p>

<p>Submission of á controversy upon an 'agreed statément of facts, pursuant to section Í279 of the Code of Civil Procedure.</p>

Appeal by the plaintiff,' James Kelley, as administrator, etc., from a judgment of the Supreme Court ip favor of .the' defendant, entered in the office of the clerk of the county of. Chautauqua on the 7th day of April, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the Chautauqua -Trial Term.

Appeal by the defendant, The Treasurer, of the County of Mpn.roe, from ah order' of the Supreme Court,,made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 27th day of May, 1907, granting the relator’s motion for a peremptory writ of mandamus. ■ ■

•Sepabate. appeals .by the defendants, Ignatz N.. Loewenheim and others, from a judgment of the Supreme.

Cross-appeals by James G-. Hunt, as surviving trustee, etc., - of John IngersoB, deceased, and by Loton S. Hunt, individually and as administrator, etc., of Mary Hunt, deceased, from a decree of the Surrogate’s Court of the county of Herkimer, entered in said Surrogate’s Court on the 15th day of October, 1906, with notice of an intention to bring up for review upon such appeal, an order entered in said court on the same day modifying and, as modified, confirming the report…

Appeal by the defendants, Frederick O. Clarke and others, as commissioners, etc., and the City of Oswego, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the till day of September, 1906, Upon the decision of the court, rendered after a trial at the Oswego Special Term, restraining them from destroying two houses of plaintiff, which are described in plaintiff’s complaint, or any part thereof, and…

Separate appeals 'by Herman 0. Hegedorn and another, as trustees, etc., of Frank Slayton, and the Board of Home Missions of the Presbyterian Church in the United.

• Certiórari issued out of the Supreme Court and attested on the 1st day of April,. 1907, directed to Anthony C. Douglass and others, composing the board of police' do in missioners of the city of Niagara Falls, New York,, commanding them 'to certify and return to the office of the clerk of the county of Niagara all and singular their proceedings-had in relation to the removal- .of the relator from the ' office of chief of police of the said city of Niagara Falls.

Appeal by the petitioner, -the Village of Theresa, by its electric light commission, from so much of an order of-the Supreme Court, made at' the Jefferson Special Term and entered in the office of the clerk of the county of Jefferson on the 22d day of October, 1906, as denies the petitioner’s motion to amend a judgment of condemnation theretofore entered herein so as to award costs to the petitioner and awards costs against the petitioner, together with an extra allowance of…

Appeal by the defendant, August Eugler, fronr h judgment of . the Supreme Court in favor of the plaintiffs, entered in the office of the clerk- of the county of Erie dn- the 14th day of February, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, and.also from an order entered in said clerk's office on the 14th day of February, 1906, reversing a judgment of the Municipal Court of the city of Buffalo, and granting a new trial in said court.…

Motion by the plaintiff, David M. Gurofsky, as administrator, etc., for a new trial upon a case containing exceptions, ordered to be. heard at the Appellate-. Division in, the first instance upon' a non-suit directed by the court after a trial at the Erie Trial Term.

Appeal by Thomas S. Jones and others, as executors, etc., of Lydia M. Francis, deceased, from a decree of the Surrogate’s Court of the county of Oneida, entered in said Surrogate’s Court on the 28th day of December, 1906, confirming an order theretofore entered . on the 13th day of June, 1906, upon the report of the appraisers, fixing a transfer tax upon the estate of said decedent upon the legacy passing to the Didymus Thomas .Memorial Library Association.

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 Herkimeron the 10th day of December, 1906, upon the verdict of á jury, rendered by direction of the court after a trial at the Herkimer Trial- Term, and 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…

Appeal by the defendant, The Brooklyn Heights 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 2d day of January, 1907, upon the verdict of a jury for $5,000, also from an order entered in said clerk’s office on the 2d day of January, 1907, denying the defendant’s motion for a new-trial-made upon the minutes, and also from an order entered on the 5th ..day of January, 1907,…

<p>Building contract — substantial performance — deduction for defects.</p> <p>In an action on a building contract a finding of substantial performance by the plaintiff is not inconsistent with a finding that deductions should be-made for small omissions or defects in the work, not willful or intentional.</p>

<p>' -' Appeal by the defendant,, the Astoria Marble 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 7th day of. November, 1906., . ■ ■ ■ .</p>

Appeal by the plaintiff, Frank R. Biedler, from an interlocutory judgment of the Supreme Court in favor of the defendant Malcolm, entered in the office • of the clerk of the county of Kings on the. 29'fch day of December, 1906, upon the decisión of- the court, rendered after a trial at' the - Kings 'County Special Term, overruling the plaintiff’s demurrer to the answer of the said defendant.

Application by Herman A. Metz, as comptroller of tbe city of New York, and others, for an absolute writ of prohibition, directed to Samuel T. Maddox, a justice of the Supreme Court at Special Term, to William R. Hearst, candidate for election as mayor of New York city at the election of 1905, and to his attorney, requiring them to desist from- further entertaining or carrying on the proceeding for the recanvass and recount of the ballots of said election,- provided for by…

<p>Municipal corporations — dismissal of police officer in city of Mew York—evidence.</p> <p>Evidence upon which, a police captain in the city of New York was dismissed examined and. held to be insufficient, to establish neglect of duty or disobedience.</p> <p>On the trial of a police officer for neglect of duty, statements made in the private ' office of the police commissioner in the absence' of the relator are inadmissible,-</p>

Appeal by the plaintiff, John T. Burns, from a judgment of the Municipal Court of the city of Yew York in favor of the defendant, dismissing the plaintiff’s complaint.

Appeal by the defendant, the Astoria Veneer Mills, 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 July, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, restraining the defendant from transferring or enforcing payment of a promissory note made by the plaintiff to the order of the defendant, and directing the surrender and cancellation’…

<p>Contract—bids for construction of highway bridge—meeting of minds —withdr awal of bid.</p> <p>Although a bid for the building of a highway bridge according to alternative plans has been accepted by resolution of the board of highway commissioners-in joint session with the town board, “ conditioned upon leave being granted by the board of supervisors to issue bonds of the town.” which condition .was not prescribed when the plans were submitted,; the contractor may withdraw his bid and recover the amount' of. his deposit, for the acceptance was not absolute but based upon á contingency not contemplated'when the bid was asked.</p> <p>Moreover, as' two plans were submitted although but one bridge was to be built, a general resolution of acceptance of the plaintiff’s bid was not'amontract for tie construction under either plan but should merely be construed -. as a notification that both bids were lower than .those of others.</p>

<p>Appeal by the defendant, Jennie Feiering, from a judgment of the County Court of the county of Kings in favor of the plaintiffs, entered in the office of the clerk of said county on the 15th day of December, 1906, upon the decision of the court.</p>

Appeal by the plaintiff, Joseph H. Harkow, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 25th day of January, 1907.

Motioe by the plaintiff, Eunice M. Hayes, as administratrix, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a verdict for the defendant having been rendered, by direction of. the court after a trial at the Dutchess County Trial Term.-

Appeal by James McCauley and others from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 6th day of December, 1906, overruling the appellants’ objections to the accounting of the administratrix herein.

Cross-appeals by Theodore H. Silkman and others, executors, etc., of Adolph F. Braidich, deceased, and by Olga Blasig, residuary legatee, from certain parts of a decree of the Surrogate’s Court of the county of Suffolk, entered in said Surrogate’s Court on the 26th day of April, 1906, upon the final accounting of the executors herein.

Appeal by the plaintiff, Thomas J. Murphy, 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 17th day of January, 1907,' upon the verdict of a jury dismissing the complaint upon the merits, and'also from an order entered in said clerk’s office on the 21st day of January, 1907,.denying the plaintiff’s.motion for anew trial made upon the minutes.

Appeal by the defendant, Ernest W. Butts, from an order of the Supreme Court, made at the Kings County Special (Term bearing date the 20th day of February, 1907, and entered in the office of the clerk of the county of Bichmond.

Oebtiobabi issued out of the Supreme Court and attested on the 16th day of January, 1906, directed to the president of the borough of Queens and others, commanding them to certify and return to the office of the clerk of the county of Queens all and singular their proceedings had'in relation to the dismissal of the relator from the position of foreman in the bureau of highways in the borough of Queens.

Appeal by the defendant, Mai'gafet A, Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered upon the verdict of a jury, and also from an order denying the deféndant’s motion for a new trial.

<p>Real property — description, by metes and bounds—fee of proposed ■ street excluded.</p> <p>A mortgage which describes the lands by bounds beginning at the southeast corner of certain streets which, though delineated upon a map, were never opened, and running thence southerly, thence easterly, thence northerly, thence westerly along certain other streets to the point of beginning, does not, in the absence of other evidence of the intention of the parties, cover the bed of the proposed streets to the center line. This, although the land was identified by lot numbers bounded as aforesaid.</p> <p>The rule that a conveyance bounded by or upon a street embraces a fee to the center thereof rests upon a presumption which may bo overcome.</p> <p>When land is described by" metes and bounds, the starting point is controlling over other parts of the description in the absence of ambiguity or other evidence as to the intention of the parties.</p>

Appeal by thé defendant, Ralph Derr, 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 bn the 28th day of November, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, The ■ Oakland Chemical Company, 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 7th day of June, 1906, upon the verdict of a jury, ánd also from ail order entered in said clerk’s office’ on the 5'tli day of June, 1906, denying the defendant’s motion for a new trial made upon the m-inútés: '

Reargument of an appeal by the plaintiff, William E. Lowrey, 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 31st day, of January, 1906, upon the dismissal of the complaint by direction of the court after a trial at tlie Kings County trial term. (See 119 App. Div. 875).

<p>Master and servant — injury- on runway — safe place to work — contributory negligence.</p> <p>A master engaged in the erection of a building who maintains a runway consisting of two planks eighteen inches wide over all, leading from a platform to an elevator on the third stóry and used for the passage of workmen with wheelbarrows, is liable for injuries received by reason of an obstruction on the runway, which made it ■ impossible to wheel the barrow thereon without turning it sideways, so that it caught on a derrick and knocked the employee from the runway.</p> <p>An employee only assumes the risk of running a harrow along such narrow ' elevated runway after it. is in a condition reasonably safe for' the purposes intended.</p> <p>An employee urged to make haste is not guilty of contributory negligence in using the runway instead of taking another used for moving the barrows in the-other direction, which was-crowded at the time. -</p> <p>An employee under the necessity of making haste to clear the way is not guilty of contributory • negligence as a matter of law in toying to extricate his wheelbarrow, which became caught in an obstructing derrick.</p>

<p>Appeal by the defendants, Bird S'. Coler, individually, etc., and another, from an- order of the Supreme Court,-made at the Kings County Special Term,and entered in the office- of the clerk of the county of Kings on the 21st day of January, 1907, continuing during the pendency of the action a temporary injunction restraining the defendants, their employees, etc., from removing or interfering with certain tools and equipment of the plaintiffs.</p>

<p>Trial—preference—extréme age of party.</p> <p>A trial judge may, in his discretion, grant a preference,, because the plaintiff by reason of extreme age is not likely to live until the cause can he reached in its regular order.</p>

Appeal by the plaintiff, Edith II. Irving, from so much of an, interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the'7th day of January, 1905, upon the decision óf the court rendered after a trial at the Westchester Special Term as sustains the defendant’s demurrer to.the second cause of action set forth in the amendéd. complaint.

Appeal by the defendant, Mary E. Kindred, 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 Queens on the 2ftli day of August, 1906, denying the said defendant’s motion to cancel a notice of pendency of the action.

Appeal'hy the defendant, Anabel Gardiner Van Rostrand, from-certain parts of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of June, 1889.

Appeal by the plaintiff, Edward Ellingsen, an infant, by Annie Ellingsen, his guardian ad litem, from a judgment of the Municipal Court of the city of New York in favor of the defendant^ rendered on the iRh day of February, 1907,. dismissing plaintiff’s complaint -at the close of his evidence, in an action brought to recover' damages, alleged tb have been sustained in ■ consequence of - his haying been bitten by a dbg owned by defendant, and kept in his stable as a watch…

<p>Appeal by the defendants, Anna Maria Leidenthal, .sued as Mary Leidenthal, and others, from an., interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 4th day of March, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, confirming the report of .a referee, with notice of an intention to bring up for review upon such appeal an order of reference entered in' said clerk’s office on the 23d day of November, 1906.</p>

Appeal by the plaintiff, Patrick J. Beynolds, from a judgment of the Supreme Court iu favor of the defendant,, entered imtlie office of the clerk of thecounty of Kings on the 12th day of January, 1907, upon the decision of the court .. rendered after .a trial at the Kings County. Special Term.

Appeal by the defendant, Levi 0. Weir, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 24th day of August, 1906, upon the'report of a referee. ■ Plaintiff, owning certain valuable lace, delivered the same to a cleaner in the city of New York, who afterward shipped the same by the defendant-express company .addressed to the plaintiff in a box not indicating the nature of the…

Appeal by the defendants, The Brooklyn Union 'Elevated R'ail-road Company and another, from a judgment of the Supreme Court'' in favor of the plaintiff, entered in the office of- the clerk of the county of Kings-tin the- 18th day of January, 1907,-upon the decision of the court rendered after, a trial at the. Kings- County Special Term. . •

- Appeal by tlie plaintiffs, Wolf Balleisenand others, 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 16t-h day of April, 1906, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Marshall T. Davidson, 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 17 th day of April, .1906, upon the dismissal of the complaint by direction of the court on a trial at the Kings County Trial Term.

Appeal by 'the plaintiff,- Cynthia A. Tuthill, as administratrix, etc., 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 25th day of October, 1906, upon the .decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Bird S. Coler, president of the borough of Brooklyn, 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 thé 19th day of March, 1907, granting the relator’s motion for a peremptory writ of mandamus. Order affirmed, with ten dollars costs and' disbursements, on the opinion of Mr. Justice Marean at Special Term.

Appeal by the plaintiff, George M. Newton, individually, etc., and as administrator, etc., from a j udgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 25th day of July, 1905, upon the report of a referee, dismissing the complaint and adjudging that Newton street in the city of Dunkirk, N. T., is a public street and that it shall at all times hereafter he kept open and in repair for the use of the…

<p>Contract—intoxicating liquors — agreement to pay money for consent of landowner unenforcible.</p> <p>Any contract is against public policy and void which provides for the sale by an individual of the right given to him with others by legislative enactment to give or withhold his consent to any project affecting a public interest where the giving or withholding of such consent may become the basis of governmental action.</p> <p>Thus, a contract to pay money for the giving of a consent to the issuance of a liquor tax certificate by a person residing within the 200-foot limit (Liquor Tax Law, § 17, subd. 8) is against public policy and void.</p> <p>Robson, J., dissented.</p>

<p>Indians — real property — court — summary proceedings—jurisdiction.</p> <p>As the Tuscarora Indians residing on the reservation in the county of Niagara have no peacemakers’ court or other judicial tribunal of their own in which the right:to the possession'of real property may be enforced, the courts of this State have jurisdiction by virtue of section 5' pf the Indian Law.</p> <p>A Tuscarora Indian holding under a tribal allotment who has been Wrongfully ousted' of possession of lands may maintain summary proceedings in a Justice’s Court.</p> <p>, McLennan, P. J., dissented, with opinion.</p>

Appeal by the petitioners, Elizabeth Printup and others, from a decree of the Surrogate’s Court of the county of Niagara, -entered in said Surrogate’s Court on the 29th day of March, 1907, denying the petitioners’ application for the awarding of letters of administration upon the estate of Daniel Jj. Printup, deceased, for want of jurisdiction of said Surrogate’s Court in the premises.

<p>Shipping — lease of boats — covenant to return in original condition r^- • • measure of damage.</p> <p>When the lessee of boats and. dredging machinery has covenanted to return the same to the lessor in the same condition as when leased and'has failed to do so, -the rule of damage is that applied jin^admiralty cases, to wit, the lessor may - recover the- cost of repairs already made and those yet to he made necessary to - restore the boats to the condition in which they were when leased and for -the. idle time of the boats while the repairs were being made, together with.-interest on these - amount's, less the -depreciation resulting - from ordinary use) on the condition, however that the expense of repairing any boat does not exceed its original value or involve expense greatly disproportionate to the amount of, its • depreciation by reason of inj.uiy. ," ■ ' -</p> <p>When, however,, the lessor, who has only partially repaired- the boats, has been ' once .allowed the expense of dry-docking, he should not. be-allowed, the cost of redocking in order to complete the repairs, if there he nothing tó show that the. repairs could not have been completed when the boats were first . docked.</p> <p>KrusN,' j., dissented.'</p>

Appeal, by the defendant, James McNaught, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 14th 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 November, 1906, denying said, defendant’s motion for a new trial made upon the minutes. ' ■ Upon.

<p>Cross-appeals by the plaintiff, John ‘Moore, and. by the defendant, The Mutual Reserve Fund Life Association,' from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 29th day of December, 1906, upon the decision of the court rendered after a trial at the Chemung Special Term.</p> <p>In February, 1892, the plaintiff took out a policy of life insurance in the defendant company for the sum of $10,000. In-1906, claiming that that policy was procured by fraudulent representations, he claimed the right to rescind the contract, offered .back the policy and demanded a return of the premiums paid, with interest. Upon the refusal of the company to return the premiums, he brought this action in equity to be allowed to.rescind and to recover back the premiums paid. The trial judge has found that the contract was induced by the defendant by false representations of material facts upon which.the plaintiff relied,.and authorized its rescission. . The court has further found that the mortuary cost of said policy from February 12, 1892, to January 2, 1906, was $1,526.72 ; that the total expenses during the same period were ' $728.42 and the interest on said sums to June 3Ó, 1906, $983.15, making a total of $3,238.29. Th.e court has further found that the premiums paid ■ to said company amounted to $2,437.10, and that'interest on said payments so made amounted on June 30, 1906, to the sum of $1,093.24, making a total of $3,530.34. The difference between this and the aforesaid sum of $3,238:29, to- wit,- the sum of $292.05, is the amount for which judgment has been directed. ,</p> <p>The plaintiff' has appealed, contending that he is entitled to the repayment of all premiums paid with interest without deduction for either the mortuary costs or the expenses on said policy. The defendant has appealed, contending that plaintiff is not entitled under the evidence to a rescission of the contract. Further facts appear in the opinion.</p>

Cebtioeaei issued, out of the Supreme Court and. attested on the 1st day of.

Appeal by the plaintiff, James B. Bathb'one, as trustee in bankruptcy, etc., from a judgment of the Supreme Court in favor of the defendant Ayer, entered in the office of the clerk of the county of Chemung’ on the 26th day of May, 1906, upon a nonsuit directed by the court after a trial at the Chemung Trial Term.

<p>Appeal by the plaintiff, Kay Tompkins, from an order of the Supreme Court, made at the Chemung Trial Term and entered in the office of the clerk of the, county of Chemung on the 5th day of November, 1906, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial made upon the minutes.</p>

Certiorari issued out of the Supreme Court and attested on the 18th day of July, 1906, directed to William C. Wilson, as Deputy and Acting Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to a franchise tax imposed upon the relator- for the year ending October 31, 1904.

Appeal by- the defendants,' Henry D. Hotchkiss and another, from a judgment of the Supreme Court in favor of the plain tiff,, entered in the office of the clerk of the county of Albany on the-7th day of February, 1907, upon the verdict of a jury, and also from an .order entered in said clerk’s office on the 16t‘h day of Feb- • ruary, 1907, denying the defendants? motion for a new trial made upon the minutes. i The action is brought to recover the charges for printing a case…

Appeal by George W.. Gamble, individually and as administrator, etc., and others, from a decree of the Surrogate’s Court of the county of Sullivan, entered in said Surrogate’s Court on the 12th day of November, 1906, judicially settling the accounts' of the personal representatives o:. the deceased executors of the last will and testament of Elizabeth Gamble, deceased. .

<p>Real property — oral contract that vendee in possession shall own lands át vendor’s death — liability of heirs to fulfill contract — when vendee cannot recover consideration — failure to demand conveyance — effect of retaining possession.</p> <p>An oral agreement by a vendor with a vendee let into possession of lands, providing that in consideration of a yearly payment of $100, work done upon the lands, work for the vendor, and the support of the vendor, the premises shall, belong to the vendee at the vendor’s death, and that he will have papers drawn so that no one can disturb the vendee's possession, is sufficiently definite,, and when the vendee has performed, the vendor’s heirs, on .his death, may be compelled to convey. '</p> <p>Such agreement should not "be construed as a contract by the vendor to convey during his lifetime.</p> <p>When the vendor’s heirs have not disturbed the vendee’s possession and have not refused to execute a conveyance, there is no, breach of the contract by them, and the vendee is not entitled to enforce a claim against the estate for the consideration paid.</p> <p>Moreover, the vendee being in possession, the vendor’s heirs are not put in default in the absence of a demand by the vendee for a conveyance.</p> <p>So, too, the vendee cannot recover the consideration so long as he retains possession, for thereby he does not rescind, but affirms the contract,</p>

<p>Appeal by the plaintiff, Frank Strong, from a judgment of- the Supreme Court in favor of the defendant, entered in the office "of the clerk of the county of Franklin on the 24th day of December, - 1906, upon the verdict of a jury rendered by direction qf the court after a trial at the Franklin Trial Term, dismissing the corniplaint.</p>

■ Appeal by the' plaintiff, Gustaf Birch, as administrator, etc., 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 13th day of December, 1906, as amended by an order entered in said clerk’s office on the 22d 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' Kings County Trial Term. .

Appeal by Seth B. Johnson, as executor, etc., of Jane Ann Marlor, deceased, and' others, from a- decree of the. Surrogate’s Court of-the county of Kings, entered in said,Surrogate’s Court on the. 2d day of January* ■ 1907, refusing ■■ to admit to probate an instrument propounded as the last, will and testament of • said decedent.'

<p>Aureal by the defendant, Dominic H. Burke, from so much of an'order of the Supreirie 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 November, 1906, as denies costs to the defendant upon the dismissal of the complaint.</p>

Appeal by Henry S.- Brush, as county treasurer of Suffolk county, from so ‘ much of an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 2d day of March,-1907, as requires the appellant to pay to -the respondent certain items for disbursements.

<p>Appeal by the defendants, Porter D. Ford and another, from a judgment of- the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of -the County-of Westchester on the 23d day' of October, 1906, upon the verdict'of a jury for $7,500, with notice of an intention to bring, up for review upon such appeal an order bearing date the 24th day of October, 1906, and entered in said clerk’s office, denying the defendants’ motion. for á new trial made upon the minutes. / .</p>

<p>Municipal corporations -=- smoke ordinance construed — employee not liable for default of master—facts not establishing violation.</p> <p>Section 96 of the Sanitary Code of the city of New York, known as the smoke ordinance, is a penal statute and should be strictly construed.</p> <p>The superintendent of. a factory is not liable under said "section for the failure of his master to equip furnaces with' smoke consumers, that matter being beyond his control.</p> <p>Nor is he liable under that clause of the section which prohibits any person from causing or allowing smoke, cinders, etc., to be discharged from any building to the detriment or annoyance of any person not being therein, when the evidence shows that the furnaces used were equipped with the best smoke consumers then known and that the smoke which actually issued from the building was innocuous and had not been to the detriment or annoyance of any person. The mere exuding qf smoke does hot create liability under said section, but it must be shown that there is in fact a nuisance which by annoying one or more persons is constructively a public nuisance.</p>

<p>Railroad — consent of highway commissioners— failure to construct road — lapse of grant — construction of road enjoined.</p> <p>When the consent of highway commissioners to the construction of a street surface railroad provides that the grant shall lapse unless one track he constructed . and operated within' two years, except in the case of delay by injunction, legal proceedings or causes beyond the control of the railroad, the latter exception should be construed as applying only to conditions for delay not then known' to the parties, such as interference ,b)r the courts or other acts of interference over which the railroad had no control.</p> <p>Hence, when such railroad, having power to enforce its right of way, fails to ' construct and operate the track within two years, the grant of the highway commissioners determines an'd cannot be continued .by a subsequent board of commissioners under the guise of a resolution extending the time within Which the railroad was required to file a bond. • ■ . .</p> <p>Á corporation which has paid nothing for such grant and made no investment on ' the faith thereof, abandons the same by a failure to construct the read within the time set and the grant can only be renewed by a compliance de novo with all the statutory requirements.</p> <p>When the grant to construct the road has lapsed as aforesaid, an abutting landowner and taxpayer is entitled to the continuance of a preliminary injunction in an action to perpetually enjoin the construction of the road.</p> <p>Hooker, J., dissented, on opinion below.</p>

<p>Appeal by the defendant, the Town of .White Plains, from a judgment of the County. Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 1st day of September, 1905, upon the decision of the court, a jury having been waived. -.</p>

<p>.. Carrier — shipment of heavy goods — failure to state true weight not negligence.</p> <p>A consignor shipping bulky machinery by a steamer is under no implied obli'ga- • tion to-state to the .carrier the true weight of the goods, nor is. he-liable for expenses caused to the carrier by the breaking of the" derrick used to unload the goods, although he may have understated the weight.</p> <p>The implied' obligation of the shipper to ,stateethe mature of the. goods shipped -. obtains-only.where those goods are of a dangerous nature not discoverable on inspection. . Goods are not dangerous by reason of mere weight, a matter entirely obvious.</p>

Appeal by the plaintiff, Rachel Anderson, 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 15th' day of January, 1907, upon a nonsuit granted by the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.

<p>Appeal by Bebecca O’Brien, as administratrix, etc., of' Mary Bebecca Murphy, deceased, from á decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 5th day of March, 1906, settling the. accounts of William E. Murphy, as executor, etc., of Thomas Murphy, deceased.</p> <p>Also an appeal by Thomas Joseph Cunningham, as executor, etc., of Eliza Cunningham,' deceased, from so much of said decree as permits the said William E. Murphy, as executor, to reimburse himsel-f for certain expenses incurred in a litigation.</p>

Appeal by the defendant, The City of New Yorb,-from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bichmond on the 1.6tli day of March, 1906, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 22d day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes. , Proceeding westerly on the northerly side of St. Mark’s place in the borough-…

Appeal by the plaintiff, Apollonia Warth, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, entered in the office of the clerk of the county of Richmond on the 18th day of January, 1907, upon the decision of the court rendered after a trial at the Richmond Trial Term, a jury having been waived.

Appeal by the defendant, Edna Bell, 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 Bichmond on the 5th day of September, 1906, denying the', defendant’s motion to vacate a notice of sale herein and to compel the sheriff of Bichmond county to accept a certain amount in satisfaction of an execution.

Appeal by the plaintiff, Annette Butler,'from a judgment of the Supreme Court in favor of the defendants, entered in the office o.f the cleric of the county of Nassau oil the-2d day of March, 19.06, dismissing the complaint by direction of the court at the close of the plaintiff’s case upon- a.trial at the'Nassau Trial Term, and also from an order entered in said clerk’s office on the 23d day of August, 1906, denying the plaintiff’s motion for a new trial.

<p>Monopoly — pleading — failure to show combination in restraint of trade — State statute governs — right to refuse to sell — when remedy at law adequate.</p> <p>The Federal statutes forbidding unlawful combinations in restraint of trade apply only to interstate or foreign commerce and for a violation of their provisions redress must be sought in the Federal courts which alone have jurisdiction. The common law and State statutes determine the illegality of such combinations when attacked in the State courts. ■</p> <p>A complaint in an action in the courts of this State to restrain an alleged unlawful combination in restraint of trade, and to recover damage, does not state a cause of action if it fail to show that the defendants were incorporated for or unlawfully combined with other persons or corporations to advance or control prices or trade, or to discriminate between dealers, or regulate competition, or establish prices, or that one'defendant appointed the other defendant its sole selling agent for such purposes. Mere allegations showing that a corporation, with allied corporations, controls ninety per cent of a certain trade and had appointed a sole selling agent in this State do not, standing alone, show an illegal combination. ' '</p> <p>The mere fact that one defendant, controlling ninety per cent of the trade, has appointed a sole selling agent in this State who has refused to sell goods to the plaintiff, does not show a violation of the State statute (Laws of 1899, chap. 690), for it is the inherent right of every person to refuse to maintain trade relations with any other person for any reason or for no reason, and what one may do of his own right, he may do through an agent.</p> <p>The courts of this State are without'power to compel an owner of property to sell it against his will to any particular person.</p> <p>Although in such complaint it he alleged that one defendant manufacturing certain goods controls the business of other manufacturers and producers, it will he presumed that' such control was lawful in the absence of an averment of an unlawful combination between them.</p> <p>Such complaint, being in equity, cannot be supported because, among other things, it alleges the breach of a contract by one of the defendants to sell goods to the plaintiff,, for as to that injury the remedy at law is adequate.</p>

<p>Appeal by the plaintiff, Theodore McKane, from a judgment of the Supreme Court in favor ’of 'certain of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of June, 1906, upon the dismissal of the complaint, as to such,defendants, by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.</p>

, Appeal, by the defendant, Jonathan Hall, from a judgment of the Municipal Court of the cityof New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 21st .day of February, 1907. -

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of January, .1907, upon the decision of the court rendered after a trial before the court without' a jury ait the Kings County Trial Term, and also (as stated in the notice of appeal) from an order denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Herman F. Lippe and. another,' com-' posing- the firm of Herman F. Lippe & Bro., 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 Queens on the 25th day' . of June, 1906,' upon the decision Of- the court rendered after a trial at the Queens County Special Term in an action to foreclose a mechanic’s lien.</p>

Appeal by the defendant, H. Townsend Blodget, 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 19th day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes. ' • ■

<p>Appeal by John E. Thompson,' as executor, etc., from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 14th day of May, 1906</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk'of the county of Queens on the 21st. day of-January, 1907, upon the verdict of a jury for-$500, and also from an order entered in said clerk’s office on, the 26th day of January, 1907, denying the defendant’s motion for a new trial .made upon the. minutes.

<p>Insurance — benevolent assessment corporation—amendment of by-laws altering rate of assessment—conflict of laws — comity.</p> <p>Although the vested contract rights of a member of a benevolent insurance corporation cannot be impaired by an exercise of a.general power to amend bylaws, yet when such corporation is organized upon principles of equality' and mutuality among members so that they occupy the dual position of insurer and, insured and there is nothing iti the by-laws limiting the fatti of assessment, the same may be changed' under a power of amendment so as to enable the corporation to meet its obligations to members.</p> <p>. In such a corporation each member as an insurer must be deemed to have contracted to pay his just and ratable share of the amount necessary to enable the corporation to fulfill its contracts of insurance. '</p>

<p>Appeal by the defendant, John A.'Bensel, as commissioner, etc., from a final 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 8th day of October, 1906, granting a peremptory writ of mandamus directing said commissioner to reinstate the relator in the.service óf the department of docks and.ferries in the city of New York.</p>

Appeal by the plaintiff, Clarence G. T. Smith, from an order of the Supreme Court, made atcthe Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 11th day of February, 1907, as resettled by an order entered in said clerk’s office on the 6th day of March, 1907, amending an interlocutory judgment in a partition action.

, Appeal by the plaintiffs, Josef Nemrow and others, fi’onx a judgment of the Municipal Court, of the city of New York in favor of the .defendant, rendered after a trial before the. court, without a jury.- ■ ' . • . . ■ The action was for damages for breach of contract. The defendant leased part of a building to the plaintiffs to be usfed as. a restaurant. .

Appeal by the plaintiff, David Berger, from'a, judgment of the Municipal Court of the city of New York in favor of the defendant, rendered after a trial before the court without a jury, dismissing the ' complaint. ' The action was to recover $800 paid .by the plaintiff to the defendant on a contract of. purchase of real-estate.

Appeal by the defendant, Abraham. Levitt, from á judgment of the Municipal Court of the city of Mew York in favor of the plain- • tiff, rendered after a trial before the court without a jury. The action was to recover for services in searching a title for a loan. The defendant was a law student in the office of Reuben Stone, an attorney at law.

Appeal By tlie plaintiffs, Joseph Horn and another, from a judg- ' ment of the Municipal Court of tlie city of New York in favor of said plaintiffs for six cents damages, entered after a trial before the court without a jury. -

Appeal by the defendant, the New York and Queens. County . Railway Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a juj-y in an action to recover.damages for alleged negligence.

Appeal by the defendants, The New York, New Haven and Hartford Eailroad Company and another, from a judgment óf the County Court of Westchester county in favor of the- plaintiff, entered in the office of the clerk of said county on the 24th day of March, 1906, upon the verdict of a jui-y for $500, and also from separate orders entered-in said clerk’s office on the 2.Vth day of March, 1906, respectively denying said defendants’ respective motions for a new trial made upon the…

•Appeal, by the' defendant, The Concordia Fire. Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office'of the-clerkof the county of Westchester on the 17th day of October, .1906, upon the verdict of a jury rendered after á trial at the Westchester Trial Term. .

- Appeal by the defendants, The Brooklyn Union Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of. the county of Kings on the 18th day of January, 1907, upoii the. decision of the court rendered after a trial at the Kings.County Special Term. ' . . ’ ■ • The action was brought to obtain a perpetual injunction against the .defendant to restrain it from maintaining' and operating its…

Appeal by the defendants, Peter F. Kane and' others, from' a judgment of the Supreme Court in favor of the plaintiff,'entered in the office of the clerk of the county of Kings on the- 4th. day of December, 1906, upon the verdict of a'jury, and also from :an order entered in said. clerk’s office on the 2Sth-day' of Deeenibér, 1006, denying the defendants’ motion for a-new trial made upon the minutes. The action was to recover a broker’s commission for the sale of a farm.

Appeal by John George Baum, as administrator, etc., from certain parts of a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on .the 26th day of November, 1906, settling his accounts as administrator.

Appeal by the defendant, Louis I£ain, .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 10th day of April, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, granting a perpetual injunction.-

Appeal by the plaintiff, the State Line Telephone Company,'' •from an order of the’ Supreme Court, made at the Westell ester Special Term and entered in the office of -the clerk of the county of Putnam on the 12th day of November, 1906, denying the motion . of the plaintiff for a permanent injunction restraining the defend-ants from interfering with the maintenance by the plaintiff of its telephone poles and wires on a certain highway in Putnam county. . ■ .

Appeal by the defendant, the McLaughlin--Real Estate Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk A the county of Kings on the 7th day of May, 1907, denying the defendant’s motion to.vacate an ex parte order for the examination of the defendant and the president thereof to enable, the plaintiff'to. frame his complaint. -

Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of tlie plaintiff,-entered in the office of the clerk of the county of Westchester on the 9th day of July, 1906, upon the report of a referee.

Appeal by the plaintiff, Charle's Schaaf, 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 1st day of February, 1907, granting the defendants’ motion to change the place of trial of the action from the county of Kings to the county of Monroe. .

Appeal by the' plaintiff, the Harbor and Suburban Building ■and Savings Association, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 23d day of July, 1906, upon the decision, of the court rendered after a trial at the Kings County Special Term dismissing the complaint and canceling • of record a ..certain bond and mortgage.

Appeal by the plaintiff, John Bosoian, from a judgment of the ’ Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 26tli' day of November, 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 28th day of November, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Albert Plaut and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerlt of the county of Queens on the 29th day of December, 1906, upon the verdict óf a jury for $2,500, and also from an order entered in said clerk’s office on • the 10th day of January, 1907, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, William Henneke, from a judgment of the County Court of the county of Kings, entered in the office of the clerk of said county oh the éth.day of March,-1907, upon the dismissal of the complaint at the opening of the case upon the ground that the court had no jurisdiction. ■

Appeal by the defendant, the Inter-State Paving 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 11th day of December, 1906, upon the verdict - of a jury for $1,000, and also from an order entered in said clerk’s office on the lltli 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 sucli…

<p>Appeal by tbe -plaintiff, William J. McGrtirgan, from a judgment of tbe Municipal Court of the city of New York in favor of the defendant, entered in the office of tbe clerk of said court on the 27tli day of September, 1906.</p>

<p>Appeal by the plaintiff, August lieu then, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the lltli day of July, 1906, dismissing the complaint upon the,merits.</p>

<p>Contract — parol evidence amplifying ."writing —verdict affirmed in absence of legal error—construction of contract to do day’s work — ■ liability for unauthorized extra work.</p> <p>When it is conceded that a contract is not fully expressed- in writing, parol - evidence supplementing the written portions of the contract is admissible.</p> <p>When on conflicting evidence the jury has determined in: favor of one party, . .the judgment must be affirmed in the absence of legal error.</p> <p>Although a contract to perform a day’s; work usually means the hours, of a calendar day which are ordinarily made use of, yet when there is evidence.that the parties intended a day of eight hours, a finding by the jury to that effect will not be disturbed. . ‘ . . -</p> <p>Although a municipal contractor employed another to do extra work in the expectation that the city would pay for the' same, he is liable nevertheless to pay for the services rendered though unable to collect from the city.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 28th day of March, 1907. The action was brought because of the failure of the defendant to give a transfer. At the time of giving a transfer to the conductor the plaintiff ■ held out his hand for another transfer.

Appeal by the plaintiff, Eloisé A. Close, from a judgment of the Supreme Court iri favor of the defendants, entered in the office of' -the clerk of. the county of Westchester on the 11th day of August, 1904, upon the report of a referee dismissing the complaint upon the merits. • - • ; The suit is for an accounting against the sureties.for Henry C. Seivafd as substituted trustee under the. sixth clause of the-will of. Anthony J. Allaire, deceased.

■ Separate appeals by the plaintiff, Sarah E. Stewart, individually and as executrix, etc., and by the defendant, George E. Woolley,'.individually and as administrator, etc., from certain portions of a judgment of the Supreme Court’in favor of certain of the defendants, entered in the office of the clerk of the county of Kings on the 18th day óf May, 1906, upon the, decision of the court rendered after a trial at the Kings County-Special Term.

Appeal by the defendant, Forrést H. Parker, Horn portions of a judgment of the Supreme Court in favor of the plaintiff and certain of tíie defendants, entered in the office of the clerk of the county of Westchester on the 24tli day of January, 1906, upon the decision of the court rendered after a trial at the Westchester Special Term. ■

Appeal by. the defendant, Luke A. Bnrke and Sons,'from a judgment of the Municipal Court of the city of Mew York, borough of 9 Queens, in favor of the plaintiff, rendered on the 26th day of December, 1906.

Appeal by the defendants, Samuel Lakow and another, from a judgment of the Municipal Court of the city of. New York, borough ■. of .Brooklyn, in favor of the plaintiff, rendered on the 1st day of November, 1906. ■ ,' .. .

Appeal by the defendant, the Broadway Bazaar, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 11th day of January, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, enjoining the defendant from the use of a -certain trade name.

Appeal by the defendant, the Peekskill Lighting and Railroad Company, from a jndginent of the County Court of Westchester county in favor of tlie plaintiff, entered in the office of the cleric of' said county on the 6tli day of April, 1907, upon the verdict of a jury for seventy-five dollars, and .also from an order bearing date the 22d day of March, 1907, and entered in said clerk’s office denying the defendant’s motion for a new trial-made upon the minutes.

Appeal by the defendant, William R. IT. Martin, 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 27th day of October, 1906, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 25th day of-October, 1906, denying the defendant’s ’motion for a new trial made upon tire minutes. . ■ Action for damages for negligence causing death.

Appeal hy the plaintiff, John T. Martin, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of'Westchester on the 10th day of May, 1907, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the plaintiff’s demurrer to the separate partial defenses in the defendant’s answer.

' Appeal by the plaintiff, Luigi Onesti, from a judgment of the' Supreme Court in'favor of the defendant, entered in. the office of the clerk of the county, of Orange on the 5th day of Decembér, 1906, upon the'dismissal of the complaint by direction of..the- court at the close of the plaintiffs case. pn a trial at the Orange Trial Term.

■ Appeal by the defendant, David G.' Baird, from, a judgment of-the Supreme Court in favor of the plaintiff, entered in the office of • the cleric of thé county of Westchester on the 7th day of February, 1907, upon the verdict of a jury, and also from, .an order entered in said clerk’s office on -the 18th day of February, 1907,' denying the defendant’s motion for a new trial made upon the minutes.

' Appeal by the plaintiff, William Bobinson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 14th day of February, 1907, upon the dismissal of the complaint by direction of the court :at the close of--the plaintiff’s case on. a trial at the Queens County Trial Term. -

Appeal by the relators, Anson Casa voy and others, 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 28th day of March, 1907, upon an order made at the Westchester Special Term arid entered in said clerk’s office on the 28th day of March, 1907, dismissing a writ of certiorari to review the action of the assessors of the town of Cortlandt, Westchester county, assessing mortgages of the…

Appeal by the defendants, Eugene Zimmerman 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 Rockland -on the 25th day of May, 1906, upon the verdict of a jury, and also from an order bearing date the 2-3d day of May, 1906, and entered in said clerk’s office, denying said defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, W. J. Morgan & Company, from a judgment of the Municipal Court of the city of Mew. York, borough of Brooklyn, in favor of the defendants, rendered on the 11th day of December, 1906, dismissing the complaint.</p>

Appeal by the defendant, Jacob Burkhard, from a judgment of ■ the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of December, 1906, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the loth day of December, 1906,. denying-the defendant’s motion for a new trial made upon the minutes.

Appeal by tlie defendant, the Brooklyn Heights Railroad Company, from a judgment of the County Court ■ of . Kings county- in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the loth day of January, 1907, upon the verdict of a jury for $250, and also from an order entered in. said clerk’s office on the 15th day of January, 1907, denying the- defendant’s motion for a new trial- made upon the minutes.'

Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of July, 1907, denying the defendant’s motion for leave to amend its answer.

Appeal by Frank Gr. Remsen and others, five of the proposers of the incorporation of the village of Cedarhurst, from an order of the County Court of Nassau county, filed in the office» of the town clerk of the town of Hempstead on the 24th day of April, 1907.

<p>Municipal corporation — negligence — injury - by projecting manhole — stare decisis.</p> <p>•In an action for personal* injuries the question as to whether the defendant . municipality was.negligent in maintaining for-four month's a sewer manhole raised from three to six inches above the level of a hard earthen sidewalk, is properly submitted to the jury.</p> <p>A municipality Which has allowed a manhole to exist in said'condition for four months is' not exculpated because the street when paved, as intended, would be flush with the manhole. , ' .</p> <p>Each case of negligence turns upon its peculiar facts and the decisions -in Other cases are not direct precedents.</p>

■ Appeal by'.Garrett P. Wright, as executor, etc., of Garrett P. Wright, deceased, from a decree of the Surrogate’s Court of the county of Richmond, entered in said Surrogate’s Court on the 12tli day of November, 1906. '

Appeal by the defendant, the New York City Bail way Company, from a judgment of the Municipal Court of the city of New York, borough of Bichmond, in favor of the plaintiff, rendered on the 17th day of April, 1906.

Appeal by the defendants, the Unique Construction Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered, 'in the office óf the clerk of the county of Kings on the 1st day of November,.1906, upon the decision of the court rendered after a-trial, at the Kings County Special Term.

<p>Appeal by the plaintiff, Thomas Jennings, from a judgment of, the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 8th day of March, 1907. ' .</p>

<p>County clerk—search. — negligence.</p> <p>A county clerk under requisition to search against Catherine Joyce, wife. o£ ■ Edward Joyce,” is not negligent in failing to list a judgment against “ Cassie Joyce.”</p>

<p>Appeal by the plaintiff, the City of Middletown, from a judgment of the Supreme' Court in favor of the defendant, The JEtna Indemnity Company, entered in the office of the clerk of the county of Orange on the 9th day of March, 1907, upon the dismissal of' the complaint by direction of the court at the close of the. plaintiff’s case, on a trial at the Orange Trial Term, and also from an order entered in said clerk’s office on the 9th day of March, 1907, dismissing "the complaint and granting to said defendant an extra allowance of costs.</p>

<p>Municipal corporations — dismissal of police officer—failure to prosecute disorderly houses — evidence — error in excluding orders from superior.</p> <p>The failure of a police officer to suppress a violation, of the law of which he is ' aware is not excused because, he was requested not to act by a secretary of the police commissioner; hut under such circumstances a dismissal from the -force of an experienced officer with a record of faithful, honest and efficient service is too severe a punishment.</p> <p>On the trial of an, officer before the police commissioner for failure to suppress disorderly' houses, knowing their existence, it is error to exclude evidence that, he acted pursuant to. a general order of the police commissioner to report the facts hut not to take proceedings until ordered.</p> <p>When on such trial a fellow-officer has testified that the accused directed that no proceedings be taken against the disorderly house in question, it is error to exclude a question on cross-examination showing that the accused said it was done on orders from his superior. When, one litigant proves part of a competent and material conversation, his adversary is entitled to give the whole of it.</p> <p>Miller, J;, dissented.</p>

Appeal by the defendants, Charles L. Feltmañ 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 21st day of February, 1907, upon'the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendants’ demurrer to the complaint. Interlocutory judgment affirmed, with, costs, on the opinion of Mr. Justice Kelly at Special Term.

Appeal by the relator, Ferdinand' Hermann,' 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 19th day of April, 1901, denying the relator’s motion on the petition for a writ of certiorari, on the writ and the return to cancel the assessment of his land in the town of Greenburgh, Westchester county, and appointing a referee to inquiz-e into the question of overvaluation.

Appeal by the defendant, The New York Anti-Saloon League, from a judgment of the City Court of Mount Vernon in favor of the plaintiff, entered in the office of the clerk of said court on the 5th day of February, 1906, upon the verdict of a jury for $200, and also from an order beariug'date the 2'Ttli day of February, 1906, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louis R. Schenck, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of September, 1906, upon the decision of the court rendered after a trial at the Kings County Special Term. . Judgment affirmed, with costs, on the opinion of' Hr. Justice Sutherland at Special Term. - ■

<p>Attorney and client — action for professional services — bill of particulars insufficient.</p> <p>In an action by an attorney to recover for’professional services, a bill of particulars consisting mainly of dates of interviews, consultations, etc., and a single item for services in seventeen foreclosure actions covering a year and for bankruptcy proceedings, is not sufficiently definite. A valuation of each detail of an action is not required, but a valuation by way of a lump sum for each of the suits or proceedings should be given.</p>

Appeal -by the- plaintiff, Leon Pizer, from an order of the' Supreme Court-,, made at the New -York Special Term and entered-in the office of the clerk of-the county-of New York on the 1st day Of August; 1.90'T, denying the ¡ilaintiff’s motion for the appointment of á recei ver of the rents; issues and-profits' during the pbndbfiby of an action to foreclose a mortgage on real estate^ ■

Appeal by the defendant, Ellén S. Anchmuty, from an order of the Supreme Court, 'made at the New York Special Term and entered in the office of the clerk of the county of New York on the- 2d day of August, ■ 1907, denying the defendant’s motion to dismiss the complaint on the ground that the plaintiff has shown unreasonable neglect in prosecuting the action.

Appeal by the defendant, John Blake, from a judgment of the Court of G-eneral Sessions of the Peace in and for the county of New York, rendered on the 29th day of November, 1905, convicting the defendant of a misdemeanor, and also from two orders respectively denying the defendant’s motions for a new trial and in arrest of judgment.

<p>Appeal by the John Simmons Company 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 14th day of May, 1907, directing the chamberlain of the city of New York to pay to the respondent realty company certain'moneys deposited by said company for the purpose of discharging a mechanic’s lien.</p>

Appeal by the defendant, The German American Brewing Company, 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 6th day of February, 1907, upon the verdict of a jury, and also from an order bearing date the 6th day of February,. 1907, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Frederick Core, from an order of the Supreme Court, made at the New York Special Term and entered in the office óf the clerk of the' county of New York on'the 30th day of July, 1907, denying the-defendant’s motion to vacate and cet aside an order of arrest.

Appeal by the defendants, Gustav Schroeder and another, doing, business under the name of' Schroeder Brothers,' .from an order of the' Supreme Court, made at' the Yew York Special Term, and entered in the office of the clerk of the county of Yew York, on the 23d day of July, 1907, denying, the' defendants’' motion to. compel the plaintiffs to accept the answer theretofore, served by them.

Cross-appeals by the plaintiff, Bertram .Wood, and by the defend ant, Ernest Flagg, 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 NewYork on the 16th day of September, 1907, modifying a prior order for the examination of the. plaintiff before trial.

Appeal by the plaintiff, Edmund K. Stallo, 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 lltli day of February, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term.

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 17th day of August, 1907,, sustaining a writ of habeas corpus and directing that the relator be discharged from custody.

Appeal by t.Jie defendant,' George I. Malcom, as committee; 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 12th day of June, 1907, granting leave to the plaintiff nunc pro turne as of - the 15th day of March, 1907, to join Louisa Malcom Stenton and George L Malcom, as committee of her person and property, as parties defendant, and granting leave nunc pro timo as of said date…

Appeal by the defendant, George I. Malcom, as committee, etc., from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day óf June, 1907, as denies the said defendant’s motion to set aside the service of the summons and complaint made upon him in the -above-entitled action.

Appeal hy the relator, Joseph P. Dafling,' from an order dismissing a proceeding for a. summary review, etc., and from an' order denying the relator’s application for a peremptory writ of mandamus.

<p>- Appeal by the defendants, Edward P. Barker and others, as commissioners, etc., from a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of May, 1905, vacating an assessment ■ upon the capital stock of the relator for the yeat? 1897.</p>

<p>Appeal by the defendant, the Vulcanite Portland Cement Company, from a judgment of the Supreme Court in favor of the-plaintiff,'entered in the; office of the clerk of the county of New York-on the 28th day of January, 1907, upon' .the verdict of a jury, and also from, an order entered in said clerk’s office on the 23d day of January, 1907, denying said defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, William C. Greene, from an order of the Supreme Court, made at the blew York Special Term and. .entered in the office of the clerk of the county of blew York on the 23d day of ’July, 1907, granting the plaintiff’s motion to vacate an order for his examination, before trial. . .

Appeal by the ■ defendant, Caroline A. Sohaettler, 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 1st day of March,-1907; upon the verdict of a jury rendered by direction of the court, and also from an order, bearing date the 8th day of - March, 1907, and entered in said clerk’s office, denying the defendant’s motion, for a' new trial made upon the minutes, '

Appeal by the plaintifi, Sarah A. Kenney, as administratrix, etc., 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 4th day of April, 1907., granting the defendant’s motion to set aside a verdict of $5,500, rendered by a jury in favor of the plaintiff, and directing a new trial of the action.,

Appeal by the defendants, Harry F. Curtis and another, from so much of an order.'of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1907, as grants the plaintiff’s motion for a verified bill of .particulars of the matters set forth in the first and second defenses of the defendants’ answer and directs that in the event of defendants’- failure to comply with the terms of the order…

Separate appeals by William Sherer and the Bankers’ Life Insurance Company, two of the defendants in the abóve entitled action, 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, 19.07, as resettled by an order entered on the 28th day of May, 1907, denying' a motion to vacate and set aside, all the proceedings theretofore had in the action. . ,

Appeal by the defendant, Charles Kipp,.from a judgment of the Court of Special Sessions of the First Division of the City of New York, rendered on the l-6th day of April, 1907, convicting the ■defendant of the crime of petit larceny, and also from an order denying the defendant’s motion for a new trial upon the ground that the evidence .connecting the defendant with the crime was insufficient.

, Appeal from an order affirming a determination by the board of elections sustaining objections filed by John M. Tierney to' the eertificate of nomination of the petitioner,

Appeal by the defendant, George F. Binninger, as general guardian, etc., from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of June, 1907, as directs that the plaintiffs deposit certain moneys with the chamberlain .of the city of New York to the credit of this action, together with interest thereon at the rate of two and one-half per cent from May 12, 1905.

Appeal by. the claimant, the American Ice Company, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 19th day of April, 1907, confirming the report of commissioners of estimate and assessment herein.

<p>Assault and battery — when principal not liable for unauthorized act of agent — evidence — erroneous restriction of question on cross-examination.</p> <p>A salesman and collector fpr á defendant engaged iñ renting sewing machines who has no authority to act in any other capacity except that he is required to ■“repossess and deliver to the company any machines they may direct without additional compensation ” on default in rent, is without power to retake rented machines unless directed, and his principal is not liable for personal injuries 'inflicted by him in retaking such machines on his own initiative. ' The same is true of a managing salesman employed to superintend sales and employees according to the instruction of his principal and not authorized to contract any debtor bring or. permit any suit without express authority or to make any . purchase or incur any liability on behalf of his principal. -</p> <p>In an action against such defendant to recover for personal injuries received- - from the defendant’s agent, although the plaintiff’s husband has testified that he went to the defendant’s office and was introduced r to a person designated. as the defendant’s superintendent, who threatened- to take away the machine if the rent were not paid, the defendant .upon cross examination should not be compelled to frame its question so as to characterize the employee .as the defendant’s superintendent. ■ . .'</p>

Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New-York on the ,9th day of February, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s- office on ■the 30th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

■ Appeal by the defendant, Tim New York- Central and Hudson Eiver Eailroad 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-Í7th day of May, 1907, upon the verdict of a jury for $35,000.,. and also from an order entered in' said clerk’s office on the 15th day of May, 1907, denying the defendapt’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the New York City Bailway 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 9th day of January, 1907, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 9th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the: Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the'office of the clerk of the county of 27ew York on the 10th day of December, 1906, upon-the verdict of a jury for $2,250, and also from an order entered in said cleric’s office on the 10th day of December, 1906, denying the defendant’s motion fop á new trial made upon the minutes. . • ,.

Appeal by the plaintiff, Anita Piza,□ from a judgment of the Supreme Court in favor of the defendant, entered in the .office of the-clerk of the connty. of New York on the 21st day of- February, - 1907, upon the decision of the court, rendered after a trial at the New York Special Term,.dismissing -the complaint upon the merits.

<p>Appeal by the defendants, John Daniell 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 17tli day of November, 190'6, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 6th day of December, 1906, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Gustav Dinser, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, rendered on the 5th day of December, 1905, convicting him of the crime of murder in the second degree and from the order denying his motion for a new trial.

Appeal by the defendant, The Knickerbocker Trust 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 6th day of December, 1906, upon the decision of the court rendered after a-trial at the New York Special Term ; also from an order entered in said clerk’s office on the 4th day of December, 1906,. amending the complaint herein nunc pro tunc as of the date of trial; also from an order…

Appeal by the defendant, W. W. Ford, 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 25th day of January, 1907, 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 13th day of . February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>' Appeal by the defendant, the Mechanics and Traders’ Bank,' from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of -Mew York on the 21-st day of January, 1907, iipon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of January, 1907, denying -the defendant’s motion foi* a new trial made upon.the minutes.</p>

Atpeal by the defendants, Sarah S. S. Stnrges and another, from so much of an order of -the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New. York on the 7'tli day of October, 1907, as denies their motion to cancel a notice óf the pendency of .the above-entitled action,

Appeal by the plaintiff, Alvina J. Knauer, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 30th-day of August, 1907, denying the plaintiff’s motion to punish the defendant for contempt of court. ■

■ Appeal by the plaintiff, Alvina J. Knauer, from an. order of the - Sppreme 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 August, 1907, granting, the defendant’s motion-to vacate the judgment-of separation theretofore rendered in favor-of the plaintiff in the above-entitled action. ' ' .'

Appeal by the plaintiff, Canavan Brothers 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 Mew York oh the 2.6th day of July, 1907, denying the plaintiff’s motion to refer the above-entitled action to a referee to be appointed by the court.

Appeal by Louis Norman and another, the purchasers at a sale in the above-entitled partition action, 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 7th day of August, 1907, compelling them to complete their purchase.'

Appeal by the defendant, William C. Greene, 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 5th day of August, 1907, granting the plaintiffs’ motion to have said defendant adjudged guilty of contempt of court. ■

Appeal by the defendants, William C. Greene and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lltli day of June, 1907, directing that said defendant Greene, individually and as president of the Greene Consolidated Copper Company'and of the Can anea Consolidated Copper Company, be examined as a witness On behalf of the plaintiffs, and his deposition taken pursuant to-the…

Appeal by the defendant, the Vehicle Equipment 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 5th day of July, 1907, upon an order made at the New York Special Term and entered in said clerk’s office on the 2d day of July, 1907, overruling the defendant’s answer as frivolous, and directing judgment for the relief demanded in the complaint, and also .from the said order directing the…

Appeal by the plaintiff, Louise Harris, 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 12th 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, the Norcross Brothers 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 25th day of February, 1907, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 18th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Corporation — suit by foreign corporation — section 15, General Corporation Law, construed —pleading — answer must show plaintiff is stock corporation—when corporation does business in this State—when business not interstate commerce. '</p> <p>A foreign corporation is presumptively entitled to sue in the courts of this State, and in an action by such corporation for work, labor and services and materials furnished, a defendant wishing to take the defense that the plaintiff is not entitled to sue because not licensed to do business here as provided by section 15 of the General Corporation Law, must allege not only that the plaintiff has no certificate allowing it to do business, but also that it is a stocle corporation. In the absence of the latter allegation the charter of the plaintiff is not admissible to show that it was a stock corporation.</p> <p>As section 15 of the General Corporation Law is in derogation of the general right of the foreign corporation to do business-in this State and to bring action on contracts made here, it is incumbent on the party taking the defense to bring the case within the express prohibition of the statute.</p> <p>Neither is it a defense to allege that such foreign corporation has not paid the license fee necessary to authorize it to do business in this State (Tax Law, § 181) in the absence of an allegation showing that the plaintiff was a stock corporation, for said section of the Tax Law applies only to foreign corporations required to be licensed to do business under section 15 of the General Corporation Law.</p> <p>A foreign corporation having an office for the transaction of. business in this. State, which contracts here to supply labor and materials and construct elevators in buildings in this State is doing business here within the meaning of the statute. ■</p> <p>The intent of section 15 of the General Corporation Law is to prohibit a foreign corporation from engaging in business in the State without obtaining a license and to prohibit the maintenance of any action on a contract made in this State in violation of the provisions of the section. The statute prohibits both the making of a contract and an action thereon until permission to do business be obtained.</p> <p>A contract by a foreign corporation to manufacture and erect elevators in a building situated in this State is not interstate commerce.</p> <p>The same rules apply in an action by such foreign corporation against a surety who guaranteed the performance of the contract on the part of the buyer.</p>

■ Appeal by the defendant,. Lee ■ Shubert, 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 26th day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26tli day of February, 1907, denying the defendant’s motion for a new trial made upon the mimites.

Appeal by C. Adalbert Becker, the purchaser at a foreclosure sale in the above-entitled action, from ■ an order of the Supreme Court, made at the ISTew York Special Term and entered in the office of the clerk of the county of ISTew York on the 29th day of August, 1907, as amended by an order entered in said clerk’s office on the 13th day of September, 1907, setting aside the sale and directing a resale of the mortgaged premises.

Appeal by the plaintiff, Sarah Meyerhoffer, 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 14th day of November, 1906, affirming a judgment of the City Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 29th day of December, 1905, and also affirming an order of said City Court, entered on the 12th day of December, 1905, denying the…

Appeal by-the defendant, the New York City Railway Company, from an- order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the lltli 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 26tli day of June, 1906.

Appeal by the-defendant,- the Derby .Desk Company, from a judgment of the Supreme Court iu favor -of the plaintiff, entered in. the office of the: clerk of the county of Dew York on the 5t;h day of March, 1907, upon the'verdict of, a jury for $5,000 ; also from an order entered in said clerk’s office on the 1st day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes, and also from, an order entered on the 6th day of March, 1907, granting the…

Appeal-by.the defendants, Sinclair Tousey 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 24th day of September, 1907,-appointing a temporary receiver of “ all the property, assets and effects; of every description, of the defendant -corporation, Frank Tousey, Publisher,” during the pendency of the action. .. •

Appeal by the defendants, John II. O’Brien, as fire commissioner of the city of New York, and others, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county, of 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, granting a permanent injunction restraining the defendants from revoking certain permits theretofore granted, and from otherwise…

Appeal by the defendants, Ladd J. Lewis, Jr., and another, copartners, etc., 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 rendered by direction of the court, and also from an order entered in said clerk’s office on the 1st day of November, 1906, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the John Simmons Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ISTew York on the 5th day of March, 1907, upon the verdict of a jury, and also from an order entered in said clerics office on the 28th day oí February, 1907, denying the defendant’s motion for a new trial made upon the minutes. •

Appeal by the defendant, Ida F. Gfote, 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 24th day. of May, 1907, 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>Appeal by the defendant, Gus Reed, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of October, 1907, as enjoins the defendant during the pendency of the action from rendering any professional services as actor for any other person than the plaintiff.</p>

<p>Libel — publication not changing perjury — charge that woman is sued for divorce in foreign State — grounds of divorce immaterial.</p> <p>A publication alleged to be libelous which states that the' plaintiff appeared in a criminal court in New Jersey and charged her husband with non-support, while wearing costly jewels, etc., but that the proceeding was dismissed upon. the husband’s statement that he was suing for divorce, will not support an innuendo that perjury was thereby charged against the plaintiff. This, because the fact that a wife possesses jewelry does not disprove her claim that her husband has not performed his duty of support and maintenance.</p> <p>When it is alleged that the statement that the plaintiff’s husband had instituted a suit for divorce in a foreign State was false, a demurrer to the whole complaint as failing to state a cause of action is properly overruled, for it is libelous per se to state falsely that the plaintiff’s husband is suing for divorce, even though the grounds for divorce in the jurisdiction where the suit is brought are not limited to adultery. This, because although the unchastity of plaintiff may not' be charged, the action imputes that she has been guilty of some wrong in the marital relation and tends to injure her reputation and to expose her to public contempt, obloquy or shame. •</p> <p>A defendant attacking such complaint upon demurrer as failing to state a cause of action cannot justify the publication on the ground that it was a report of a . judicial proceeding as the complaint alleges that the report was false.</p>

<p>Appeal by the defendant, Anton -Roster, 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 8th -day of May, 1907, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the 26th day of April, 1907, denying. the defendant’s motion for a new trial made upon the minutes</p>

<p>Crime — arrest of judgment— coroner—receiving bribe to release prisoner— illegality of arrest immaterial — issue of warrant without viewing body. . .</p> <p>On an appeal by the People from an order granting a motion in arrest of judgment in a criminal action, granted upon the ground that the facts stated in the indictment and.proved at trial do not constitute a"crime, questions of law are presented as if raised by a demurrer .to the indictment.</p> <p>Since the amendment to section 773 of the Code of Criminal Procedure, made by chapter 321 of the Laws of 1887, a coroner in this State, when engaged in investigating the killing or wounding of a person, performs magisterial functions and acts in á judicial or quasi-judicial capacity, and hence is .within the provisions of section 72 of the Penal Code punishing the taking of bribes by a judicial officer.</p> <p>Whether or no a coroner of this State has jurisdiction to investigate the death of a woman in a foreign State alleged to have been caused by a criminal operar tion performed here, and to arrest and hold the person charged with performing the operation, he is nevertheless punishable for receiving a bribe paid to obtain the discharge of the person-accused.</p> <p>An, officer prosecuted, for accepting a bribe to release a prisoner arrested by him - cannot impeach the legality of the arrest as a defense, even though he accept the bribe for doing no more than he was legally bound to do.</p> <p>A magistrate in determining that he has no jurisdiction is performing a judicial and official function, and if he accept a bribe -to decide the question rightly he is guilty nevertheless.</p> <p>A coroner in this State has general authority to issue a warrant before actually viewing the body, and in doing so acts judicially.</p>

<p>Municipal corporations— salary and pension of school teacher, city of New York— action at law to recover balance due — acceptance of less sum not waiver of right to statutory compensation.</p> <p>Section 1117 of the Greater New York charter, providing-that teachers in the public school system of any part of the city shall • continue to' hold' their respective positions and to be entitled to such compensation as is now or may be hereafter provided, etc., operates .permanently to protect teachers in the ■ tenure of their positions whether appointed before or after the passage of the act, unless discharged or reduced to a lower position for cause.</p> <p>A female teacher in the former county of Richmond, who, prior to- the incorporation of that county into -the' city of New York, had been.employed continuously for eight years as a teacher of a girls’ graduating class, and continued to teach such class for three years after the creation of the greater city, is entitled to receive a salary of not less than. $1,410, under chapter 751 of the Law's of 1900, and also to a pension at the rate of half that sum on her retirement, even-though prior to her retirement she accepted and receipted for a less sum.</p> <p>Although the- class of such teacher before her retirement was reconstructed so - that' in addition' to girls- about to graduate it included "qthérs not so far .advanced, she continues to be a teacher of’a gills’ graduating class within- the meaning of the statute, and entitled to the salary and pension prescribed.</p> <p>Such teacher, never, having been discharged or reduced'in. rank,.may, after.her retirement, maintain an action at law against the board of education to recover the difference between the salary and pension actually paid and .that t.o; which ’ she- was'-entitled under chapter 751 of the Laws of. 1900 without resorting to mandamus to óompel her reinstatement. ’ ’ ’</p> <p>The right of such teacher to the statutory compensation and pension under chapter 751 of the Laws of 1900 does-not rest upon contract, and hence, by accepting and receipting for a less salary and pension, she does not waive her statutory right-to the higher rate.</p> <p>LtqRAHÁM:, J., dissented. .</p>

Appeal by the defendant, .the Hewitt Motor Company, from an order of the Appellate Term of the.Supreme Court, entered in the office of' the clerk of hlie county of New York on the 10th day of April, 1907, which order reversed an order of the-Municipal Court of the city of' New York, borough of Manhattan, entered on the 31st day of October, 1906, setting aside the verdict of a jury in favor of the plaintiff and granting á new trial, and reinstated, said verdict.

<p>Bill of particulars of alleged written contract — action for specific performance.</p> <p>Wben in an action for the specific performance of an agreement to convey lands, in response to an order for a bill of particulars, the plaintiff sets forth, among other things, that the agreement between plaintiff and defendant’s codcfendant was partly oral and partly written, and so much thereof as was in writing was signed by defendant’s codefetidant, and that the agreement claimed to 'have been made bydefendant was partly oral and partly in writing, and such, part as was in writing was signed by her codefendant on her behalf, the plaintiff will be required to furnish defendant with copies of so much of the alleged ■ agreements as are in writing when .defendant denies any knowledge thereof and there is nothing to raise any presumption that she knows the nature or purport of the agreements.</p>

Appeal by the defendant, the Garfield National Bank, from a judgment of tho Supreme Court in favor-of the plaintiff, entered in - the office of the clerk of the county of New York on the ,31st day of October, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from, an order entered in'.said clerk’s office on the 9th day of November, 1906, denying the defendant’s motion for a new trial . made upon the…

<p>Shipping — agency of master — when action for money had and received lies against owners.</p> <p>The master of a ship has authority to bind the owners for necessary port charges and outfitting the vessel in a foreign port, and while he may not delegate all his authority, he may make shipbrokers to whom the vessel is consigned for cargo sub-agents to make bargains for outfitting tile vessel" and to incur obligations on his behalf.</p> <p>- When the master of a vessel has authorized shipbrokers to outfit the vessel in foreign port, and in order to release the ship from a lien for the repairs has drawn a' draft to" his own order on the owners and transferred it to the ship-brokers to negotiate and pay the charges due,, parties discounting the draft and advancing the money to the brokers,-on failing to recover on the instrument against the owners in a foreign court, may sue them for money had and received, for the owners have had the benefit of the supplies furnished although the draft was void for lack of authority in the master.</p> <p>Shipbrokers to whom a vessel is consigned for cargo in a foreign port have implied authority from the owners to do all that is figédásary to prepare the vessel for sailing, and in purchasing necessary supplies for that purpose are agents of the owners.</p> <p>The party who discounted said draft is not compelled to seek restitution from the shipbrokers alone, but can recover‘from the owners whose debt was paid from the proceeds.</p> <p>An action for money had and received or paid out for the benefit of another is founded upon equitable principles, and no privity of contract between the parties is required except that which results from circumstances showing an equitable obligation.</p> <p>But in such action for money had and received the plaintiff is not entitled to recover for items paid not necessary to discharge the lien so as to permit the vessel to leave port. ' ■</p>

Appeal by the defendant, Anton W. Sulzbacher, from an order of the Supreme Court,'made at the New York Special Term and . entered in the office of the clerk of .the county of New York on the 9th day of August, 1907, denying said defendant’s motion to vacate an order for his examination before trial to enable the plaintiff to frame his complaint.

<p>See head note in Boskowitz v. Sulzbacher, No. 1 (ante, p. 878).</p> <p>Appeal by the defendant, Joseph- H. Sulzbacher (surviving partner, 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 8th day of August,, 1901, denying the said defendant’s motion to vacate an order for the examination of the defendant Anton W. Sulzbacher, to enable the-plaintiff to. frame his complaint.</p>

Appeal by the defendant, Albert Ulmann, from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 8th day of August, 1907, denying the said defendant’s motion to vacate an order for his examination before trial to enable the plaintiff to frame his complaint.

<p>See head note in Boskowitz v. Sulzbacher, No. 1 (ante, p. 878).</p>

<p>Negligence—employee burned by ignition of duet collected on walls, etc., in starch factory—failure of defendant, to clean walls — when report of inspector sufficient to excuse the absence of fire escapes assumption of risk.</p>

<p>Negligence — injury to electrician employed in department store through using elevator designed for ashes and refuse — invitation—assumption of rislc.</p>

<p> Separation—judgment roll in prior action for divorce finding both parties guilty of adultery as defense in action for sepa/ration and support. </p>

<p>Negligence — landlord and tenant —fall of employee of tenant down elevator shaft — liability of landlord for act of his servant in moving elevator — speculative verdict. ■</p>

<p>Injunction — undertaking increased.</p>

<p>Trial — defamlt opened on ground that adjournment should ham been allowed because of sickness of defendant.</p>