Volume 121 — New York Reports

The complaint alleged in substance that defendant, the Tucker & Carter Cordage Company, a corporation duly organized with certain other corporations, became members of an unincorporated association known as the United States Cordage Manufacturers’ Association of New York, by which said corporations authorized the defendant Daland to make in their, behalf a certain agreement in writing, which the defendant Daland did.

Cross appeals from judgment of the General Term of the-City Court of Brooklyn, entered upon an order made September 17, 1889, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff in unloading a cargo of coal from one of defendant’s canal boats. It appeared that the coal had been sold and was consigned to Hirsch Bros.; it was being unloaded by a stevedore employed by that firm at a wharf in Eew York city. The captain of the boat, who had been managing the guy-rope, put a boy temporarily in charge of it.

<p>1. Deed—Covenant—Right of way.</p> <p>In a prior decision by this court it was held that plaintiff was entitled, under a clause in a deed to defendants, to a right of way over a strip of land lying between his hotel and defendant’s station, and to have an opening made through a fence erected on said st.ip large enough for the convenient access of passengers and their baggage to and from the same. Defendant opened a gateway but posted a gateman to let out and admit passengers and delivered passengers at a different point. Reid, that the object of the covenant was effected when an opening was provided suitable for the convenient use of persons going to or from the hotel premises and the depot; that plaintiff was not entitled to an opening through which passengers could have a full view of his hotel and sign board and come through if they chose over the track from the cars.</p> <p>2. Same.</p> <p>The regulations of defendant requiring the possession and exhibition of a ticket as a condition of passage through the gate, and prohibiting other than hand baggage being taken in at that point, were reasonable.</p> <p>3. Same—Evidence—Damages.</p> <p>Plaintiff was allowed to state what the rental value of his hotel would have been if there had been an opening during the time the fence was closed. Reid, error.</p>

This action was brought by plaintiff, a member of the society defendant, to have certain of its by-laws declared void, and to restrain its directors from enforcing the same 'against plaintiff. The material facts are stated in the opinion. The by-laws in their legal ¿operative force, regulate the matter of association as between the members only; they do not purport to interfere with freedom of action outside of the organization.

The plaintiffs brought this action against the defendant to recover some $6,000.

The nature of the action and the material facts are stated in the opinion. The invalidity of the bonds in suit is no longer an open question.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 24, 1888, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial without a jury.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>In all maritime transactions expedition is of the utmost importance. If either party is not heady at the time appointed for loading, the other may seek another ship or cargo. (Abbott on Shipping, 249, 271; Kent’s Comm. [9th ed.] 279; Weisser v. Maitland, 3 Sandf. 318; Filley v. Pope, 115 U. S. 213; Norrington v. Wright, Id. 188.) The court erred in finding that the delay in leaving was caused by the failure of the defendant to comply with his obligation under said charter-party to furnish said vessel with water in sufficient time to enable her to leave her landings at the tiities fixed by the defendant. (Worcester’s Dict., see “ Furnish; ” 2 Parsons on Cont. 499.) , All the evidence of what occurred and was said previous' to the making of this contract was merged in it. Such evidence cannot be resorted to for the ■ purpose of contradicting or varying this contract. (Eighmie v. Taylor, 98 N. Y. 288; Snowden v. Guion, 101 id. 462.)</p> <p>A question not presented on the trial cannot be heard in this court. (Salisbury v. Howe, 87 N. Y. 128; O'Neill v. N. Y. & O. Co., 115 id. 579; Neftel v. Lightstone, 77 id. 96; French v. Carhart, 1 id. 102; Coyne v. Weaver, 84 id. 386; Coleman v. Beach, 97 id. 553.) The making of the trips at the times fixed by defendant was dependent upon his supplying the vessel with water in time. By his failure to do so he prevented the plaintiffs from performing the agreement and they are excused, and if anybody is estopped, he is. (Gallagher v. Nichols, 60 N. Y. 438, 448; Risley v. Smith, 64 id. 576, 582.) After defendant declined on August first to give the vessel further employment, there was no further duty on plaintiffs’ part to be in readiness to perform. (Howard v. Daly, 61 N. Y. 362, 370.) The allowance of $350 for the services of Woolsey rendered after August first, in reference to the employment of the vessel until the expiration of the charter, was properly included in the damages. (Farwell v. Davis, 66 Barb. 78.)</p>

The nature of the proceeding and the material facts are stated in the opinion. In the performance of work of this character and expenditure of money, the city and its officers act as agents and trustees for the property owners, by whom the expense is finally to be defrayed.

This action was brought under the Manufacturing Act to charge defendant as a stockholder in the Waverly Publishing-Company, a corporation organized under said act, with a debt of the company incurred before the filing of a certificate of full payment of its capital stock. The material facts are sufficiently stated in the opinion.

The nature of the action and the material facts are sufficiently stated in the opinion. The plaintiff’s attempt to get on the car while in motion was an act of negligence which, in fact, contributed to the injury.

<p>1. Elevated railroads—Damages occasioned by construction of.</p> <p>Defendant constructed its road in front of four lots belonging to plaintiff which, he had owned for twelve years without making any substantial improvements upon them, field, that plaintiff was simply entitled to the damages caused to him in the use of his lots from the defendant’s interference with his easements of light, air and access during the time covered by the action.</p> <p>2. Same.</p> <p>He cannot recover for the permanent diminution in the value of his lots; his recovery must be confined to the diminished rental or usable value of the lots just as they were.</p>

<p>Where a station of an elevated street railway is located upon a curve convex towards the track, as an opening between the station and the ends of a car is inevitable and a necessary result of the practical operation of the road, the bare fact of its existence is not negligence.</p> <p>So, also, as the railway follows the street and must reproduce its curves, and as the locality of any station is determined by the public convenience, the presence of the curve and the location of the station upon it is not negligence.</p> <p>It seems however, the opening should be no wider than is necessary, and if the necessary opening is so wide as to exceed the ordinary and natural step of a passenger and so may become a source of danger, further precautions on the part of the company are required.</p> <p>The locality should also be well lighted so that the passenger can see the opening.</p> <p>In an action to recover damages for injuries received by plaintiff while attempting to get on board one of defendant’s cars at a station located on such a curve, by stepping into the opening between the car and station platforms, it appeared undisputedly that the track and platform at this station had been unchanged for six years, except that at one time when new cars were introduced the station platform was cut away three inches to allow the new cars to pass, and the platforms of the old cars were widened the same amount, so that the opening between them and the platform remained the same. Although many thousands of passengers got on and off at this station, but one accident, arising from stepping between the cars and the station platform, happened, and this of so slight a character it was not reported to defendant. Plaintiff had, prior to the accident, taken the cars at this station a hundred times or more without injury. The testimony of defendant’s witnesses, who measured the distance between the station platform at the place of the accident and that of a great number of cars was that the opening was less than eight inches, and it appeared that the cars came as close to the platform as was safe or prudent. Defendant’s counsel requested the court to charge that if the space between the car and station platform at the point where plaintiff was injured was not more than eight inches, it was not negligence for defendant to have such space, and plaintiff could not recover. The court refused so to charge, but submitted it to the jury as a question of fact. Held, error. Boyce v. M. B. Go. (118 N. T. 314), distinguished.</p>

<p>Appeal from'judgment of the General Term of the Supreme Court in the first judicial department,' entered upon an order made March 2, 1888, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.' ' » •</p> <p>This was an action of partition.</p> <p>The judgment determined the rights of the parties in and to certain real" estate in New York city, known in this case as the Thirty-ninth street lots. By such judgment it was determined that the defendant Mrs. Withington was seized' in fee of an equal, undivided one-tenth part of the lots mentioned. She claims she is seized in fee of an equal, undivided one-half part under the will of her father, and hence she appeals from the judgment of the court below, which denies such claim.</p> <p>The decision of the case depends upon no contradictory-evidence, but simply upon the construction, in view of the surrounding facts, to be given to the will of Geo. W. Platt,, deceased, who was the father of the defendant Mrs. Withing-ton. The material facts are, in substance, as follows:</p> <p>Prior to 1863, George "W. Platt and Nathan 0. Platt, his-brother, were partners in business, as jewelers, in the city of New York. In May, 1863, the premises in question were-conveyed to George W. Platt, but the property so conveyed' belonged, as the court found, to the firm, and the title was taken by George W. Platt for the firm and was held by him as-the property of the firm, subject to the payment of its debts and the settlement of the accounts of the firm, and the two brothers held the same in equal proportions as tenants in common.</p> <p>There has never been any dispute regarding these facts, and it is conceded that George W. Platt made no claim to this property other than such as was founded upon the facts above mentioned.</p> <p>Nathan 0. Platt died on the 4th day of July, 1863, and his-will was admitted to probate on the thirty-first of October of that year. The executors of the will of Nathan 0., a few years after its probate, commenced an action against George-W. Platt to set aside certain conveyances of real estate made-to him by Nathan 0. Platt in the years 1860 and 1861, on the ground of fraud. The conveyances were specifically alleged and the real estate affected was particularly described. No mention was made of the Thirty-ninth street lots, and no deed, thereof was ever procured by George W. from Nathan C. Platt. The judgment demanded was that the conveyances described should be declared void; that the defendant should be enjoined from conveying the property in the meantime;. that the defendant should account for all the property which belonged to the partnership, etc., and pay over and deliver to-plaintiffs so much of the property as they were entitled to. In the complaint above mentioned the “ Patty ” farm was alleged to have been conveyed by Nathan C. to George W. Platt, and the complaint asked that such conveyance be declared void.</p> <p>It further appeared that soon after George W. Platt took title to the Thirty-ninth street lots, and on or about the 2d day of October, 1863, one Martha D. Carnes commenced an action of ejectment against him to recover possession of the entire premises, and a lis pendens was filed, describing them in full. Judgment in favor of defendant was entered in that action, December 11, 1875, and on appeal, it was afiirmed at General Term and judgment of affirmance entered December 4, 1876, and no appeal was ever taken therefrom. On the 24th day of February, 1874, George W. Platt executed his will, and on the 11th of March, 1875, he executed a codicil thereto, and on the 3d day of April, 1881, he died. His will was duly admitted to probate. He left him surviving five children, three daughters and two sons.</p> <p>In the second and third clauses of such will, specific property was devised to his son Henry, which he has received. In the fourth clause specific property was devised to his son George, which he has received. In the sixth, seventh and eighth clauses, specific property was separately devised to each of his two daughters, Mary and Eliza, which they have received.</p> <p>In the fifth clause the testator specifically devised the Thirty-ninth street lots to Mrs. Withington in this language: “ I give, devise and bequeath to my daughter, Maria B. Withington and to her heirs and assigns forever, all those ■certain lots of land” (describing them), after which the testator continues: “but should I not die possessed of said last mentioned property, or should the property be the subject of litigation at the time of my death,” then the testator gave her certain land in Potter county, Pennsylvania, containing between four and five thousand acres. In, the same clause the testator also said: “ I give, devise and bequeath to my said daughter; Maria and to her heirs and assigns forever, all that certain farm or parcel of land, with the appurtenances thereto belonging, situate in the town of Sterling, Cayuga county, Hew York, known as the Patty farm, containing sixty and eighty-nine-one-hundredths acres of land, more or less ; but ■should I not die possessed of said last mentioned property, or should the said property be the subject of litigation at the time of my death,” then the testator gave his said daughter certain property in Vermont, which has never been found by the executors. No question arises in regard to any but the Thirty-ninth street lots. Mrs. Withington has received no part of the property specifically devised to her in the fifth clause.</p> <p>The ease of the executors of Platt v. Platt, to set aside the conveyances above alluded to, did not terminate in final judgment until some time in October, 187'/', when judgment in favor of plaintiffs was entered setting aside the conveyances and settling the accounts of the late firm.</p> <p>In March, 1880, George W. Platt, the testator, conveyed to other parties the land owned by him and described in the above fifth clause as land in Potter county, Pennsylvania. The plaintiff in this action is one of the sons of Nathan 0. Platt, and he brings this action of partition in order to procure a legal division of these Thirty-ninth street lots. The sole question in the case is as to the proportion in which the undivided half interest in these lots of which the testator, George W. Platt, died seized, shall be divided. Mrs. Withington claims under the above mentioned fifth clause of her father’s will, to be entitled to the whole of that half interest, while her brothers and sisters claim that they should all share equally in such half interest by virtue of the residuary clause in the will, because the testator did not, as they now allege, die possessed of those lots, and also because they were the subject of litigation at the time of the death of the testator.</p> <p>The Special Term held against the defendant, Mrs. Withington, on the ground that the property was the subject of litigation at the time of the death of the testator, and upon her appeal to the General Term, that court affirmed the Special Term on the ground that the testator did not, within the meaning of the language of the fifth clause, die possessed of the property.</p> <p>The judgment of the General Term was pronounced upon an erroneous theory both of law and of fact. (Fairchild v. Fairchild, 64 N. Y. 471, 479 ; Lefevre's Appeal, 69 Penn. St. 122; Willett v. Brown, 65 Mo. 138.) The intention of the testator was to make a provision for appellant, which the construction given by the court below wholly defeats. The intention of the testator must guide the court. (McLean v. Freeman, 70 N. Y. 86; Dubois v. Ray, 35 id. 162; Kirr v. Dougherty, 79 id. 348 ; Lytle v. Beveridge, 58 id. 592; Taggart v. Murray, 53 id. 236; Gelston v. Shields, 78 id. 280; Kane v. Astor, 9 id. 113, 139 ; Malcom v. Malcom, 3 Cush. 479.)</p> <p>When called on to -give construction to a will, when the intuition is determined, it must be carried out, if consistent with the rules of law. (McNaughton v. McNaughton, 41 Barb. 50; Vandemark v. Vandemark, 26 id. 418 ; Banner v. Storm, 1 Sandf. Ch. 357; Wolfe v. Van Nostramd, 2 N. Y. 436; 3 R. S. [7th ed.] 2284, § 5; Wigram on Wills, § 4; 1 Greenl. on Ev. § 289; Chitty on Cont. [10th ed.] 85; Shepard v. Gassner, 41 Hun, 326, 331; Fosdich v. Delafield, 2 Redf. 392.) The conclusion reached by the executors -cannot be interfered with by the courts unless it appear that an unreasonable use has been made of the power, and that the conclusion is one that could not have been intended' by the testator. The presumption is in favor of the interpretation made by the executors. (Pray v. Belt, 1 Pet. 680.) ■ This court will not review questions of fact found by the Special Term and affirmed by1 the General Term, nor will it assume that there 'was not evidence sufficient to sustain the findings of fact in the absence of a certificate that all the evidence has been included, or all material to the question sought to be reviewed. (Porter v. Smith, 107 N. Y. 531.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made October 19,1888, which affirmed an order of Special Term denying a motion for a new trial.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>The plaintiff failed to prove a cause of action, and the court erred in denying the defendant’s motion for a nonsuit. (Foley v. City of Troy, 45 Hun, 396; Requa v. City of Rochester, 45 N. Y. 135, 136 ; Griffin, v. City of New York, 9 id. 456, 460 ; Smith v. City of Brooklyn, 36 Hun, 226; Blakely v. City of Troy, 18 id. 167; Taylor v. City of Yonkers, 105 N. Y. 202; Harrigan v. Village of Hoosick Falls, 16 N. Y. S. R. 352; Gramm v. Village of Greenbush, 20 id. 370 ; Tobey v. City of Hudson, 40 Hun, 318 ; Searles v. R. R. Co., 101 N. Y. 661; Duncan, v. City of Buffalo, 18 N. Y. S. R. 841.) The court erred in declining to charge that if the accident to the plaintiff was caused by ice formed from the freezing of the rain which fell the day before, the city'was not liable, and the. exception thereto is well founded. (Searles v. R. R. Co., 101 N. Y. 661; Taylor v. City of Yonkers, 105 id. 203, 209; Kaveny v. City of Troy, 108 id. 571; Hunt v. Mayor, etc., 109 id. 141; Tobey v. City of Hudson, 49 Hun, 318; Smith v. City of Brooklyn, 36 id. 226; Blakely v. City of Troy, 18 id. 170.) The court erred in denying defendant’s motion' to strike out the testimony of Mrs. Harrington, the plaintiff’s daughter-in-law, to the effect that the sidewalk had been in an icy condition for a long time prior to the accident, which motion was made after it appeared that the witness had no personal knowledge of the fact, and was only testifying to her opinion, and the defendant’s exception was well taken. (Platner v. Platner, 78 N. Y. 102; F. Bank v. Cowen, 2 Abb. Ct. App. Dec. 88 ; McCabe v. Brayton, 38 N. Y. 196; Roberts v. Johnson, 58 id. 613; Bayliss v. Cockroff, 81 id. 363, 372 ; Baird v. Gillett, 47 id. 186, 188.)</p> <p>The verdict is sustained by the facts and the law. (Todd v. City of Troy, 61 N. Y. 506; Evans v. City of Utica, 69 id. 166; Luther v. City of Worcester, 97 Mass. 268; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 460; Garvey v. City of Buffalo, 100 id. 630; Miner v. City of Buffalo, 99 id. 608; 1 Greenl. on Ev. § 5; Seybolt v. Erie, 95 N. Y. 562; Payne v. T. & B. R. Co., 83 id. 572; Ring v. Cohoes, 77 id. 83, 88; Taylor v. City of Yonkers, 105 id. 202, 208.) The exceptions taken by defendant upon the trial present no ground for granting a new trial. (Miller v. Montgomery,. 78 N. Y. 286; Marks v. King, 64 id. 628 ; Platner v. Platner, 78 id. 90-101; Street v. Holyoke, 105 Mass. 82, 84; People v. Collum, 103 N. Y. 587; Todd v. City of Troy, 61 id. 506 ; Pomfrey v. Village of Saratoga Spa, 104 id. 459 ; Ring v. City of Cohoes, 77 id. 83-88; Taylor v. City of Yonkers, 105 id. 202-208.)</p>

Appeal fi?om judgment of the General Term of the Supreme Court in? the first judicial department, entered upon an order made October 26, 1887, which affirmed a judgment in favor of defendants entered upon the report of a referee. This action was brought to recover royalties on certain articles manufactured under a patent claimed to be due plaintiff under a contract dated March 22, 1884. The answer denied the making of the contract.

The nature of the action and the facts are sufficiently stated in the opinion. The General Term had no power to make the order herein reversing the interlocutory judgment. (Code Civ.

<p>The owner of personal property which has been wrongfully converted by another may, although the property is retained by the wrong doer, waive the tort and sue for and recover its value upon an implied contract of sale.</p> <p>Where, however, the owner thus elects to treat the transaction as a sale, the title to the property passes to the wrong doer.</p> <p>In an action for alleged conversion, it appeared that plaintiffs, with full knowledge of the facts, brought a prior action and recovered a judgment against two other persons on account of the same transaction, which action was upon an implied contract to pay the value of the property as upon a sale thereof by plaintiffs to the defendants therein. Held, that the judgment-roll in the former action was properly received in evidence, not by way of estoppel, but as showing that plaintiffs had elected to treat the taking of their property as a sale; that they could not maintain an action against another person for an alleged conversion, founded upon his participation in the sariie acts which they had thus treated as constituting a sale; and that the election was binding upon plaintiffs, not only in favor of the defendants in the former action, but also as to all others.</p> <p>It seems, that proof of the commencement of the former action, with full knowledge of all the facts, would have been just as conclusive upon the question of election, as was the judgment.</p> <p>E. O. F. Go. v. Hersee (103 N. Y. 25), distinguished.</p> <p>When it becomes necessary to elect between inconsistent rights and remedies, the election, when made, will be final and cannot be reconsidered, even where no injury has been done by the choice or would result from setting it aside.</p> <p>As to whether an action would be maintainable by plaintiffs against defendant, based upon an implied joint and several promise by him and the defendants in the former action to pay the value of the property as upon a sale, qumre.</p> <p>Reported below, 49 Hun, 560.</p>

This action was brought for the foreclosure of a mortgage. The facts are sufficiently stated in the opinion.

This action was brought to recover damages for alleged breach of a contract in writing, which is in words and figures following: “ Dated Hew York, Fébrua/ry 7, 1885. “ Sold for account of Messrs. Mora Ona and Co. through Messrs. Perkins and Welsh to Messrs. Havemeyer and Elder. “About 1000 tons Cuba Muscavado Sugar for shipment within 30 days by sail or steam sellers’ option, at 2f c. IT.

The nature of the action and the facts are sufficiently stated in the opinion. The cause of action vested in the receiver. (Billings v. Robinson, 94 N. Y. 415; L. S. I. Co. v. Drexel, 90 id. 87; Farnsworth v. Wood, 91 id. 308; Laws of 1852, chap. 71; Code Civ. Pro. § 1788; 2 R. S. 463, 469; Drayton v. Borst, 31 N. Y. 435; Atty.-Genl. v. G. M. L. Ins.

The nature of the action and the facts are sufficiently stated in the opinion. The judgment appealed from is erroneous, because it is a judgment against the appellant, individually, and no ground for such a judgment is to be found in the complaint, or in the evidence.

The nature of the action and the material facts are stated in the opinion. The court erred in submitting to the jury the question whether the article in question was libellous. (Snyder v. Andrews, 6 Barb. 43 ; Green v. Telfair, 20 id. 11; Hunt v. Bennett, 19 N. Y. 173; Pittock v. O'Neil, 63 Penn.

This action was brought to recover damages alleged to have been caused by the defendant’s negligence. The material facts are stated in the opinion. Ho negligence on the part of defendant, causing or contributing to plaintiff’s injury, was proved if there was any such negligence, other than that of plaintiff, it was that of his fellow-servants for which the defendant is not liable.

<p>Under the provisions of the act of 1871, in relation to the collection of assessments in the city of Mew York (§ 13, chap. 381, Laws of 1871), which requires the service upon the owner of lands sold and conveyed for taxes, of a notice to redeem, as prescribed by the act, until such service the grantee or lessee obtains no title, and to divest him of title the notice served must be in strict accordance with the act.</p> <p>Where, therefore, a sale was made and lease given for the non-payment of taxes for the year 1876, and the notice served stated a sale for a tax of 1874, held, that this was not a compliance with the requirement of said provision that the notice “ shall state in substance the sale and conveyance; ” that the defect was more than a mere omission, it was a statement false and misleading in a material respect; and so, that the lessee acquired no title.</p> <p>Where upon trial, defendant asks the court to direct a verdict in his favor upon specific grounds, and also generally, and the request is granted, the direction may be sustained upon appeal, on any grounds which the case presents.</p>

This action was brought to recover damages for the alleged unlawful taking and conversion of certain personal property. The facts are sufficiently stated in the opinion. The .mortgage was fraudulent and void.

This action was brought against defendants as stockholders of the Eastern Railroad Company of Long Island, to recover ■the amount of their unpaid subscriptions to said stock to satisfy an alleged judgment against said company upon which execution had been returned unsatisfied. The material facts are stated in the opinion.

<p>Interest. Unliquidated claim.—Interest is not recoverable on a contested and unliquidated claim for compensation for services until a demand has heen made, after the termination of the services, in such wise as to charge the debtor with notice of his deficiency.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department made the second Monday of November, 1889, which affirmed an order of Special! Term denying an application of petitioner to reduce assessments for paving and regulating Eleventh avenue in the city of New York from One Hundred and Fifty-fifth street toKingsbridge road.</p> <p>The material facts are stated in the opinion.</p> <p>It is a substantial error that the assessments in question are for the total expense-incurred. (Laws of 1865, chap. 565, § 8; In re Hearn, 96 N. Y. 378; Laws of 1870, chap. 137 ; Laws of 1872, chap. 872.1 This special provision of the act of 1865 providing that the assessment for grading, etc., avenues- more than one mile in length within the district named in the act shall not exceed one-half of such expense has not been repealed or superseded by any subsequent statute. (In re Comrs., etc., 50 N. Y. 497; In re Cram, 69 id. 452; In re Curser, 89 id. 401;. McKenna v. Edmunstone, 91 id. 230 ; Mark v. State, 97 id. 572; People v. G. & S. T. Co., 98 id.. 67; In re Knaust, 101 id. 188; H. B. R. R. Co, v. S. R. R. Co., 41 Hun, 553.) The construction claimed by the petitioner is in accordance with the settled practice and opinions of the city departments-as to all other improvements of a similar character under the act of 1865. (U. S. v. Philbrick, 120 U. S. 52; U. S. v. Hill, Id. 169; Eastons. Peekergill, 55 N. Y. 310.) The extent to which the petitioner is entitled to- relief is to reduce the assessments in question one-half,, for to this extent is the petitioner at least aggrieved by reason of the error in assessing the entire expense incurred. (Laws of 1882, chap. 410, ’§§ 898, 903.)</p> <p>The petitioner is deprived by statute of any relief in this proceeding.. (Laws of 1880, chap. 550, § 12; Laws- of 1882, chap. 410, § 903; In re Smith, 99 N. Y. 424; In re Johnston, 33 Penn. St. 511; Sacramento v. Bird, 15 Cal. 294; Swam v. Buck, 40 Miss. 268 ; Weeks v. Walcott, 15 Gray, 54; Heckmann v. Pinkney, 81 N. Y. 215; Cornell v. Barney, 94 id. 400 ; People v. G. & S. T. Co., 98 id. 79; People v. Jaehne, 103 id. 195; Horton v. Cantwell, 108 id. 263; Anderson v. Anderson, 112 id. 111.)</p>

The material facts are stated in the opinion. The order is appealable. (Code Civ. Pro. § 190, subd. 3.) The order of June 8, 1889, canceling the judgments having been made without notice to the administrator of Thomas Wheeler and without his consent is void, and should be vacated. (Code Civ, Pro. §§ 2182,3343.) The order discharging respondent from his debts has the effect of canceling the judgment and it is unnecessary to obtain an order canceling the judgments from record.

This action was brought to restrain a collector of taxes from collecting a tax assessed and levied upon plaintiff’s property and to have the assessment declared void. The complaint alleged that the assessment was too large in its valuation and out of due proportion, and that it was void because Parker and Courtright, who assumed to make it, were not assessors dejure or defacto. The complaint sets forth a good cause of action.

Appeal by defendant, Charles McElvalue, from a judgment of the court of sessions of Kings county, entered 23d October, 1889, upon a verdict convicting defendant of the crime of murder in the first degree. The facts are sufficiently given in the opinion of the court.

The nature of the action and the material facts are stated in the opinion. Plaintiff’s action is barred by the statute. (Laws of 1880, chap. 275, § 10.) The tax was properly assessed and to the proper person.

first degree. The material facts are stated in the opinion. The court erred in allowing-James Boyle to testify as to what Chapleau said while in-custody of- constable Bandall charged with murder, as the statement was not voluntary. (People v. McMahon, 15 N. Y. 384.) It was error to allow Chapleau’s statement before the coroner in evidence against himself, he then being confined in jail upon the charge of murder. This was not a voluntary statement.

Meyer taken under said act. The material facts are stated in the opinion. This appeal is authorized by section 21, chapter 490, of the Laws of 1883. (Code Civ.

This was an action for the foreclosure of a mortgage. The material facts are stated in the opinion. The case is one calling only for a construction of the mortgage in suit. The intention of the parties gathered from the whole instrument must prevail. (Thomas on Mort. 196 ; F. N. Bank v. Tarbox, 38 Hun, 57; 3 Black. Comm. 154; Strong v. S. M. Ins.

<p>Appeal from judgment of tlie General Term of the Supreme Court in the first judicial department, entered upon an order made May 28, 1888, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p> <p>This was an action by plaintiff, who had been suspended from membership in the Consolidated Stock and Petroleum Exchange of New York, to compel his reinstatement as a member. The constitution of the association contains these provisions:</p> <p>“ Article 4, sec. 1. All powers necessary for the government and management of the association and its concerns shall be vested in the board of directors. They shall have power to try, on presentation, all offenses under or against the laws of the association, and all charges against members, and their decision shall be final.</p> <p>“ Article 6, sec. 9. Any member of this association who shall be accused of ungentlemanly conduct on the floor or within the rooms of the Exchange, or of a violation of any of the by-laws or rules of the association, or other misconduct, or a breach of contract, shall, upon complaint, be summoned before the complaint committee, who shall hear and investigate the case.</p> <p>“ In the matter of a breach of contract, if the committee shall render a decision establishing a money difference between the parties, it shall, upon notice to the party or parties against-whom the decision is rendered, stand as a claim against him, and shall be paid within forty-eight hours, or taken on appeal to the arbitration committee. A failure to pay or appeal within the-time specified shall subject the party in default to suspension.”'</p> <p>The further material facts are stated in the opinion.</p> <p>The transactions between Banks and the plaintiff were illegal and void. (3 R. S. [7th ed.] 1962, § 8; Yerkes v. Salomon, 11 Hun, 471; Bigelow v. Benedict, 70 N. Y. 206; Kiley v. W. U. T. Co., 39 Hun, 158 ; Kingsbury v. Kirwin, 77 N. Y. 612; Cassard v. Hinman, 1 Bosw. 210 ; Ball v. Davis, 1 N. Y. S. R. 517; Irwan v. Williar, 110 U. S. 511; Gregory v. Wendell, 39 Mich. 337; 33 Am. Rep. 390 ; Rumsey v. Berry, 65 Me. 574; Kirkpatrick v. Bonsall, 72 Penn. St. 155 ; Grizewood v. Blame, 11 C. B. 526; 73 E. C. L. 526; Flagg v. Baldwin, 38 N. J. Eq. 219.) The constitution, by-laws, rules or proceedings of a voluntary unincorporated association cannot be upheld when they contravene public policy or are opposed to the general law, or are prohibited by statute. (Hutchinson v. Lawrence, 67 How. Pr. 39 ; State v. Williams, 75 N. C. 134; Pulford v. Fire Dept., 31 Mich. 458; Philips v. Wickham, 1 Paige, 590.) The power of suspension for a breach of contract does not include the right to suspend for the breach of a contract in itself unlawful. (20 Am. L. Beg. 217.) If by subscribing to the constitution and by-laws of the Exchange, it can be said that the plaintiff agreed to submit such a dispute as is here involved to the arbitration of a committee of the Exchange, such agreement has no greater or other force than any other agreement for arbitration, and being controlled by the general statutes of the state, may be revoked by either party before proofs are closed, and the plaintiff did revoke it by letter. (Code Civ. Pro. § 2383 ; Heath v. P. G. Fxch,, 7 Abb. [B. S.] 251; Austin v. Searing, 16 N. Y. 112.)</p> <p>The complaint committee had jurisdiction of the charge against the plaintiff. (Ines v. Wylie, 1 C. & K. 262; Fisher v. Keane, L. R. [11 Ch. Div.] 353 ; Dawkens v. Antrobus, L. R. [17 id.] 615 ; Lambert v. Addison, 46 L. T. Rep. 20; White v. Brownell, 2 Daly, 329.) The complaint having been investigated by a committee of competent jurisdiction, and that committee, after a full and fair hearing, with notice to plaintiff, and a full opportunity to be heard on his own behalf and to cross-examine the complainant’s witnesses, having rendered their decision and no appeal having 'been taken therefrom, their decision is iiiial, and will nqt be reviewed by the courts or set aside except for fraud; and no fraud is charged. (Lambert v. Addison, 46 L.T. Rep. 20; Olney v. Brown, 51 How. Pr. 92.) The question of the alleged illegality of plaintiff’s contracts is immaterial. (Harris v. Trowbridge, 83 N. Y. 83.) The plaintiff’s contracts are not within the statute against betting and gaming and are not void. (Story v. Salomon, 71 N. Y. 420: Bigelow v. Benedict, 70 id.. 204.)</p>

This was an action to recover for goods sold and delivered-. The material facts are stated in the opinion. The construction of thé contract by the General Term cannot be upheld. (Tipton v. Feitner, 20 N. Y. 432.) If the terms of payment were doubtful as to whether defendants should pay ten days after each delivery or ten days after the whole order was delivered, the plaintiffs were entitled to have submitted to the jury the question as to what the terms of credit were.

This action was brought upon the following contract: “ I hereby agree to pay to Byron M. Shultz the sum of one thousand dollars, providing lie will dispose of or sell my farm on Main Street, Buffalo, H. Y., known as the Owens place, consisting of 86-]- acres of land, more or less, for the sum of twenty thousand dollars, to be paid for as follows: Buffalo Savings Bank 1st mortgage, $5,000; 2d mortgage held by M, Williams, $2,500 ; the balance to be paid to Philip Griffin in…

<p>The New York City Consolidation Act of 1882 (Chap. 410, Laws of 1882) has not taken away the remedy by petition for the vacation or reduction of an assessment for a local improvement in the city of New York for fraud or substantial error under contracts made subsequent to June 9, 1880, the date of the Assessment Commission Act (Chap. 550; Laws of 1880), but has restricted the remedy (§ 903) to a reduction of the assessment to the extent it was increased by reason of the fraud or substantial error.</p> <p>It seems that in no event can the reduction be below the fair value of the improverflent.</p>

This was an action for the specific peformance of a contract for the purchase of real estate. Plaintiff claimed to have acquired title, first, through a conveyance upon the foreclosure of a mortgage executed by William H. Baynor, who originally owned the land, and his wife; second, through a conveyance to it by Sarah E. Baynor, as executrix of the will of said Baynor, she alone having qualified, under a power of sale contained therein.

November 27, 1888, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, and granted a new trial. This action was brought to enforce a stipulation given by the defendant, Samuel Lockard, to the plaintiff. It appeared that on September 18, 1886, plaintiff recovered a judgment by default against the said Lockard; that upon a motion to open said default, said Lockard was represented by defendant Halpin, as his attorney.

The material facts are stated in the opinion. Section 1 of chapter 234 of the. Laws of 1870 does not apply to oyster beds in Great South bay.

The material facts are stated in the opinion. The statute confers on the Supreme Court full jurisdiction of the subject-matter of the application of the petitioner in this proceeding. (Laws of 1850, chap. 140, §§ 13, 14, 15 ; Hunt w Hunt, 72 N. Y. 229.) The Supreme Court at Special Term had power to decide the issue made by the answer that the use to which petitioner proposed to appropriate the land, was not a public use.

The complaint in this action alleged in substance that plaintiff and the defendants were dealers in blue stone; that the defendant, the Union Blue Stone Company, as party of the first part, entered into a written agreement with plaintiff and the other defendants, as parties of the second part.

Appeal by the receivers of E. ' Remington & Sons, an insolvent corporation, from an order of the General Term, made November 25, 1889, which affirmed an order of the Special Term, which overruled their exceptions to the report of a referee upon the claim of the Ilion National Bank, a creditor, and confirming the report of a referee. The defendant corporation was proceeded against by the People, in an action for its dissolution on the ground of insolvency.

The nature of the action and the facts alleged in the complaint' are-stated, in substance, in the opinion. An action respecting the policy cannot be maintained by a creditor during the life-time of the husband. (Brummer v. Cohn, 86 N. Y. 11; Frank v. Ins. Co., 102 id. 266; Smillie v. Quinn, 90 id. 492; Baron v. Brummer, 100 id. 372). The character of the subject-matter is such that, under elementary general principles, equity will not entertain jurisdiction. (Holly v. Ins.

Court in the third judicial department, made May 1, 1888,. which reversed an order of Special Term, granting a motion for a writ of prohibition. The nature of the proceeding and the facts, so far as material, are stated in the opinion. Neither the town of Bien, heim nor any of the others of the towns sought to be charged by the prohibited action of the defendants was ever liable for the support of the insane persons in question.

The nature of the action and the facts so far as material are stated in the opinion; The conveyance from Thomas Lawrence to Eliza Irving was not legally established. (Dibble v. Rogers, 13 Wend. 532; Boyd v. Schlesinger, 59 N. Y. 301; Beekman v. Frost, 18 Johns. 544.) The attempt to obviate this objection in the absence of the original deed, and without Lawrence or his heirs at law being before the court, must fail.

The nature of the action and the material facts are stated in the opinion. The trial court erred in dismissing the complaint on the ground that by the will the whole real estate not specifically devised was converted into personalty at the death of the testator, and that defendant held the same as personal property to be accounted for by her as executrix.

The nature of the question presented and the material facts are stated in the opinion. An officer of the United States army, retired from active service, is nevertheless the holder of a federal office. (U. S. v. Tyler, 105 U. S. 245 ; In re Attorney’s Oaths, 20 Johns. 493; People v. Nichols, 52 N. Y. 478, 484, 485 ; Smith v. Mayor, 37 id. 520 ; U. S. v. Hartwell, 6 Wall. 385 ; Shelby v. Alcorn, 36 Miss. 273 ; Tyler v. U. S., 16 Ct.

The nature of the action and the facts, so far as material,, are stated in the opinion.

The material facts are stated in the opinion. The party-wall did not cease to be a party-wall after the fire. (Brondage v. Warner, 2 Hill, 145 ; Campbell v. Mesier, 4 Johns. Ch. 334; Partridge v. Gilbert, 15 N. Y. 608.) The defendant had a right to assume that the party-wall remained standing after the fire by the consent of the parties.

The nature of the action and the facts, so far as material, are stated in the opinion. The language of the act does not require a construction involving such a sweeping-change in the law as that asserted by the learned court below. The lien of a ^ warehouseman, when admitted to exist at common law, or when proved by custom, is' specific' only, i. e., limited to the particular goods upon which the charges arose.

<p>An order of General Term affirming an order granting an injunction pendente lite, is not reviewable here, except where it plainly appears on the face of the complaint that the case is one in which by settled adjudication the plaintiff upon the facts stated is not entitled to final relief. In all other cases the granting of the order rests in the sound discretion of the court of original jurisdiction, subject only to review by the General Term.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 30, 1889, which affirmed a decree of the Surrogate’s Court of Madison county, admitting to probate the will of James D. White,«deceased.</p> <p>The material facts are stated in the opinion.</p> <p>The decedent was laboring under the insane delusion that his son was engaged in a conspiracy to injure and defraud him at the túne he executed the paper purporting to be his last will. The paper is the offspring of his delusion, and is, therefore, invalid. (Bushw. on Insanity, §§ 363, 381; Lathrop Case, 67 Barb. 590; 5 Hun, 560; Stanton v. Weatherwax, 16 Barb. 259; Delafield v. Parish, 25 N. Y. 9; Van, Guysling v. Van, Kuren, 35 id. 70; Tyler v. Gardner, 35 id. 559; Banks v. Goodfellow, L. R. [5 Q. B.] 549; Riggs Case, 95 N. Y. 503; Hopper Case, 33 id. 619; Boughton v. Knight, L. R. [3 P. & D. Div.] 64; Merrill v. Ralston, 5 Redf. 220, 221; Dew v. Clark, 3 Add. Ecc. 79 ; Hamm, on Insanity, 269, 270, 271, 328, 340, 341, 343, 359, 360.) It was error to receive the testimony of the widow, under objection, to the effect that she never heard the decedent charge that his son, the contestant, had conspired with Lewis and the others named to cheat him out of his land, or any part of it. (Code Civ. Pro. § 829; In re Eyseman, 113 N. Y. 62.)</p> <p>Hpon the uncontradicted evidence, this court should hold as a question of law that this is a case of delusional insanity. (S. F, Society v. Hopper, 33 N. Y. 624; Lathrop v. Board, 67 Barb. 590; 5 Hun, 560 ; In re Hunt, 110 N. Y. 283 ; Clouston on Mental Diseases, 190.) The question of delusive insanity was a question of law on the facts. (Eysemar's Case, 113 N. Y. 62.) The will was void because of undue influence. (Schouler on Wills, § 225 ; In re Shaw, 17 Wldy. Dig. 469, 470; C. A. Society v. Loveridge, 70 N. Y. 394;. 65 id. 95, 96; R. P. A. Co. v. Warner, 1 Wldy. Dig. 204; 6 Hun, 516; 29 id. 283, 289; 68 N. Y. 209, 213; 33 id. 618, 619; 25 id. 95; 14 id. 562; 45 id. 71; 73 id. 587.)</p> <p>The surrogate and General Term did not err in deciding upon the evidence in this case that the testator, James D. White, was of sound mind and memory and competent to make a will at the time" he made the will in question. (In re Bull, 19 N. Y. S. R. 834; 2 Brad. 449 ; 33 N. Y. 619; 15 Abb. [N. C.] 141; Buswell on Insanity, § 15 ; 1 Whart. Med. Juris. § 60; 16 Barb. 263; 2 Bedf. Sur. Bep. 37.) It is a question of law for the court to determine upon the whole facts and circumstances of each case whether it is shown that the mental condition' of the party is that of unreasonable prejudice and perverse judgment or of an insane delusion. (Buswell on Insanity, § 374; 1 Whart. Med. Juri § 43; Sehouler on Wills, § 162; 33 N. Y. 619; 7 N. Y. S; R. 739; 15 Abb. [N. C.] 141; 2 Brad. 449 ; 34 N. Y. 190; 77 id: 533; Lathrop v. Borden, 67 Barb. 590.) The surrogate and General Term did not err in deciding that the will in question was not procured by fraud, circumvention and undue influence. (Wade v. Hubbard, 2 Bedf. 378; Gardiner v. Gardiner, 34 N. Y. 163; C. A. Society v. Loveridge, 70 id. 394; Max v. MacLynn, 4 Redf. 455; Cudney v. Oudney, 68 N. Y. 148.) The surrogate erred in denying the motion of the proponent of the will, made at the close of the testimony, to strike out the testimony of the contestant himself, of Sarah Lewis, Edward H. Lewis, Sarah L. White, Mary Morgan and James Wetmore, in which are given statements, declarations or conversations of the proponent with the contestant and the other witnesses named, not in the presence of the testator or in which he participated, upon the grounds stated in the motion to strike out such testimony. (Shailer v. Bumpsted, 99 Mass. 122; Labcm v. Vanderbilt, 3 Redf. 384, 406; In re Baird, 7 N. Y. S. R. 758; Brush v. Holland, 3 Bradf. 250.) The surrogate also erred in denying the proponent’s motion to strike out the testimony of Perry Smith wherein he testifies to the acts or declarations of Mrs. White or Alida as communicated to him by the testator upon the question of undue influence. (Cudney v. Cudney, 68 N. Y. 148 ; Labau, v. Vanderbilt, 3 Redf. 413, 425; Potter v. Baldwin, 3 Am. Prob. Rep. 292.) The surrogate erred in denying the proponent’s motion to strike out the testimony of S. Perry Smith as to communications testified to by him as having been made to him by Mr. White at the time he drew the several wills testified to by him and the communications and statements which he testified Mr. White made to him upon the subject of any of these wills ; and the testimony of Mr. Smith in which he gives the contents of the wills drawn by him for the testator. Code Civ. Pro. § 835; Peersall v. Elmer, 5 Redf. 181; Myers v. Dorman, 34 Hun, 115.) The admission of improper evidence in proceedings before a surrogate for the probate of a will is not ground for reversal of his decision admitting the will to probate, if it appears from the whole case that the will was properly sustained. (Brick v. Brick, 66 N. Y. 144; Snyder v. Sherman, 88 id. 656; Code Civ. Pro. § 2515.) The surrogate having admitted this will to probate upon conflicting evidence which was amply sufficient to authorize such decision, and his decree having been affirmed by the Supreme Court, this court has no power to review the same upon questions of fact. (Marx v. McGlynn, 88 N. Y. 357; In re Ross, 87 id. 514; Davis v. Clark, Id. 623; Rollwagen v. Rollwagen, 3 Hun, 121.)</p>

This action was brought to recover possession of certain machines with damages for the detention. The facts, so far as material, are stated in the opinion.

This action was brought by the plaintiffs’ testator, and in his complaint he prayed, besides other relief, that the assessments laid upon his land in the town of New Utrecht for opening, grading and improving Cropsey avenue be declared void, and that the defendant be perpetually enjoined from collect, ing the same. The action was put at issue and afterward brought to trial at a Special Term of the Supreme Court.

This was an action for the construction of a devise in the will- of Henry Patchen, deceased. The facts, so far as material, are stated in the opinion. The respondents have no right or interest in the property held by the trustee, as devisees under the will. (Barber v. Barber, 3 M. & C. 193.) A devise to a class takes effect only in favor of those who constitute the class at the time designated for possession.

This action was brought by plaintiffs, as trustees under an agreement known as the Car Trust of Hew York Ho. 2, to procure a judicial construction thereof as to the duties of the plaintiffs thereunder and to ascertain the rights of the parties interested under a lease and a modification thereof, executed by said trustees to the Hew York, Lake Erie and Western Railroad Company.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 8, 1888, which reversed a judgment entered upon a verdict convicting defendant of the crime of robbery in the first degree and granted a new trial.</p> <p>The facts,,so far as material, are stated in the opinion.</p> <p>The confessions of Fox were competent. (1 Roscoe’s Crim. Ev. [8th Am. ed.] 67; 1 Phillips on Ev. [4th Am. ed.] 532; People v. Bennett, 4 Abb. [N. S.] 105-107 ; Hoyt v. People, 110 U. S. 574; Hendrickson v. People, 10 N. Y. 13 ; Teachout v. People, 41 id. 7; Code Crim. Pro. § 395; People v. Jaehne, 103 N. Y. 182; Balbo v. People, 80 N. Y. 484; People v. McGloin, 91 id. 241; Cox v. People, 80 id. 500 ; People v. Wentz, 37 id. 303; People v. Rogers, 18 id. 9; Stephen’s on Ev. [Chase’s ed.] 53-56; Woodford v. People, 62 N. Y. 117; Commonwealth v. Sago, 125 Mass. 210; Bufer v. State, 25 Ohio St. 464; Eskridge v. State, 25 Ala. 30; , State v. Grear, 28 Min. 426 ; Lester v. State, 32 Ark. 727 ; People v. Montgomery, 13 Abb. [N. S.] 251; 1 Roscoe’s Crim. Ev. 92; Bufer v. State, 25 Ohio St. 433; Crampsion v. McNair, 1 Wend. 457; Thomson v. Roberts, 24 How. [U. S.] 233.) The claim that the property was not taken in the presence of Frederick Plank, the owner and, therefore, no robbery was committed is untenable. (2 Bishop on Crim. Law [7th ed.], §§ 1156, 1177, 1178; Penal Code, § 224.) The confession is competent evidence against the person who made it, and against him only. (1 Bishop’s Orim. Pro. § 1019; People v. Arnold, 46 Mich. 268 ; 1 Green], on Ev. § 218; Lawson v. State, 20 Ala. 65 ; State v. Workman, 15 S. C. 540; State v. Dobson, 16 id. 453.) The court did not err in refusing to charge in the language of defendant’s counsel “ that confessions are always regarded in law as a dangerous species of testimony, to be carefully weighed by the jury.” There is no such rule of evidence. (People v. Bennett, 4 Abb. [N. S.] 105-107; Hoyt v. People, 110 U. S. 574; 1 Roscoe’s Crim. Ev. [8th Am. ed.] 67; People v. Mondon, 33 Hun, 188.) The people were not required to produce any more witnesses than they deemed necessary, least of all to subpoena superfluous witnesses on the chance that the defendant might wish to examine them. (Rex v. Clews, 4 C. & P. 221.) The charge was correct. (Caldwell v. N. J. S. Co., 47 N. Y. 282; Losee v. Buchaman, 51 id. 492; People v. Mondon, 38 Hun, 192; Anderson v. M. N. Bank, 16 N. Y. S. R. 100 ;. Hickinbottom v. D. L. & W. R. R. Co., 15 id. 11; People v. McInnery, 4 id. 598.)</p> <p>The court erred in receiving the “ confession ” against defendant’s objection, and in refusing to permit defendant to show that it was incompetent and irrelevant. (People v. Kurtz, 42 Hun, 335, 345; Comrs. v. Culver, 126 Mass. 464; Penal Code, § 224; Crews v. State, 3 Coldw. 350.) The court erred in refusing to charge that the witness Plank was not entitled to be believed in any particular if the jury were satisfied that he willfully testified falsely as to a material fact upon which he was contradicted, viz.: that he recognized defendant as a participant in the crime. (Roth v. Wells, 29 N. S. 71, 486.) The court erred in refusing to charge that confessions are always regarded in law as a dangerous species of testimony, to be carefully weighed by the jury. (People v. Kurtz, 42 Hun, 335, 343.)</p>

This was an action upon an agreement of insurance evidenced by what is termed by insurance men a “ binding slip,” which was in these words: “ Pell, Wallace & Co., Insurances, i “ 55 Liberty Street, New York, Sep. 2, 1885. j “ The undersigned do insure for account of Shaped Seamless Stocking Co. amounts as specified below at 1¿ for 12 months from Sept. 2, 1885, on machinery and stock, building No. 3 (as per form, building situate Pandall’s Island, N. Y.).

This was an action of libel brought against the Hew York Times by the plaintiff, who was engaged in the business of an undertaker and embalmer, at Saratoga Springs.

This action was brought to recover damages for an alleged breach of a written contract for the sale by plaintiffs to John Fey, defendant’s intestate, of 500 tons of “ old iron ‘ T ’ rails ” at $37.50 per ton. The terms of the contract as to delivery and payment were as follows: “ Delivery. Shipment from the other side January or February or March, Seller’s option. “Payment.

This was an action of trespass on lands. Plaintiffs claimed title as heirs at law of Patrick Clark, the former owner. Defendants claimed that the land was devised by said Patrick to his son, James Clark, and claimed title under an alleged deed from James Clark and wife, which deed plaintiffs alleged to be a forgery. The facts, so far as material to the questions discussed, are stated in the opinion.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made December 23, 1888, which reversed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by plaintiffs as survivors of the firm of Caswell, Massey & Co., to restrain defendants from using the name “ Caswell ” in their business.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The reversal by the General Term of the judgment of the Special Term upon the facts of this case was erroneous. (Crane v. Baudouine, 55 N. Y. 256, 264; Westerlo v. De Witt, 36 id. 345; Ritch v. Smith, 82 id. 627; Sherwood v. Hauser, 94 id. 627, 628.) As matter of law, the defendant, Rowland FT. Hazard, did not acquire any right to the use of the name Caswell from Philip Caswell in 1872. (Morgam v. Schuyler, 79 N. Y. 490, 494; Crontwell v. Tye, 17 Ves. 335; L. C. Co. v. A. L. C. Co., 4 De G., J. & S. 143; Lathrop v. Lathrop, 47 How. Pr. 532; Barber v. C. M. L. I. Co., 15 Fed. Rep. 318; Peterson v. Humphrey, 4 Abb. Pr. 394; Howe v. Searing, 19 How. Pr. 14; Brown on Trade-marks, §‘197; Story on Part. [6th ed.] § 100; Parsons on Part. [3d ed.) § 289.) The right of the defendants to use the name “ Caswell ” in their firm title has been adjudicated by this court adversely to them. (Hazard v. Caswell, 93 N. Y. 259 ; C. P. Co. v. Walker, 114 id. 7; Morgan v. Schuyler, 79 id. 495.) Under the laws of this state no man has an assignable interest in his own name for business purposes. (Laws of 1833, chap. 281; Woods v. E. R. Co., 73 N. Y. 198; Peterson v. Humphrey, 4 Abb. Pi. 394; Smith v. Cooper, 5 Abb. [N. C.] 275; Devlin v. Devlin, 69 N. Y. 212; Hegeman v. Hegeman, 8 Daly 1; M. M. Co. v. Wood, 28 Alb. L. J. 89; Howard v. Henriques, 3 Sandf. 725.) The amendment to the act of 1833, passed in 1854, did not authorize defendants to use the firm name in question. (Morgan v. Schuyler, 79 N. Y. 490.) The right to maintain this action is not affected by the sale to defendants, ten years ago, of a few insignificant articles bearing the firm name of Caswell, Hazard & Co. (Rieves v. Denieke, 12 Abb. [N. S.] 92, 95.) The court having erred on the merits in reversing the judgment of the court below, the court below should not have reversed on the facts. (Porter v. Smith, 107 N. Y. 534.)</p> <p>A sale or other transfer of the good-will of a business without limitation, passes the right to use the name or trade-mark which symbolizes it. (Balber v. C. M. L. Ins. Co., 15 Fed. Rep. 318 ; Banks v. Gibson, 34 Beav. 566 ; L. C. Co. v. A. L. C. Co.,4 De G., J. & S. 143; Clinton, v. Douglas, Johns. Ch. 174; Rogers v. Nowill, 3 De G., M. & G. 614; Lindley on Part. [4th ed.] 763-861; Levy v. Walker, 48 L. J. [N. S.] 273; Hegeman v. Hegeman, 8 Daly, 5 ; Rogers v. Tainior, 97 Mass. 297; Drake .v. Dodsworth, 4 Kan. 172.) The court further erred in finding that the use of the name Caswell by the defendants was calculated to and does mislead the public into believing that the defendants’ copartnership contains a person by the name of Caswell. (Hegeman v. Hegemon, 8 Daly, 1.) The defendants acquired the right to continue the use of the old firm name by virtue of the statutes of the state of Hew York. (Wood y. E. R. Co., 72 N. Y. 198,199; Gay v. Siebold, 97 id. 472.) Eights in a trade-mark are analogous to rights in the good will of a partnership. (Young v. Jones, 3 Hughes, 275.)</p>

The nature of the action and the facts so far as material are stated in the opinion. The appellant was not a proper party to the action.

This action was brought by plaintiff, the owner of certain premises bounded by the east line of Franklin street, in the city of Syracuse, against defendant, a railroad corporation organized under the General Eailroad Act, to restrain the defendant from interference with, and occupation of, his easement of light, air, and access in and to that street, by the maintenance and operation of its steam railway therein, and to recover past damages suffered by him from such…

The nature of the action and the facts, so far as material,, are stated in the opinion. The order of the General Term is appealable to this court. (Tolman v. S. & B. R. R. Co., 92 N. Y. 353; Snyder v. Snyder, 96 id. 788; E. L. Ins. Co. v. Stevens, 63 id. 341; Martine v. W. H. Co., 70 id. 101; Camp v. Ingersoll, 86 id. 437; 73 id. 187.) The trial court had the power to order a compulsory reference.

The facts, so far as material, are stated in the opinion. The Constitution of New York, article 3, section 18, does not forbid modifications, either in the structure or motive power of “ street railroads,” authorized by general law, after they have been completed and are in operation.

The facts, so far as material, are stated in the opinion. The capital stock of the relator Was not exempt from taxation under chapter 679 of the Laws of 1886. (Laws of 1880, chap. 542; People ex rel. v. Davenport, 91 N. Y. 574; P. Bank v. Billings, 4 Pet. 561.) ' The method adopted by the tax commissioners in fixing the amount of the assessment of relator’s capital stock was in accordance with the law, and the result attained was correct.

The nature of the action and the material facts are stated in the opinion. Upon the construction of all the findings in the case, no inconsistency between them exists, and so the order related to matter of mere form and was harmless. (Green v. Roworth, 113 N. Y. 462-467; Hill v. Grant, 46 id. 496; Waugh v. S. Bank, 115 id. 42; Bd.

Smith, deceased, to review the proceedings of the board of assessors of the city of Mew York in relation to an award for damages sustained by reason of the change of grade of Eighth avenue in the city of Mew York, and which affirmed the proceedings of said board. The facts, so far as material, are stated in the opinion. The writ of certiorari is the proper remedy. (Code of Civ.

The Utica City Railroad Company was organized under the General Railroad Act in 1862, and it applied to the common council of the city for permission to lay its tracks in the streets, and permission was given. “ Upon condition, nevertheless, that the said railroad company shall and doth construct the said railroad upon the most approved plan and in a secure and substantial manner, and replace and keep in good repair the pavement between and at least two feet in width on each…

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 14, 1888, which affirmed a decree of the Surrogate’s Court of King’s county admitting to probate the will and codicil thereto of Alfred F. Dunham, deceased.</p> <p>Ho contest was made as to probate of the will. Probate of the codicil was contested on the ground of undue influence, restraint and mental incapacity. By the codicil an additional legacy of $3,000 was given to Mary Holte. In all other respects it confirmed and ratified the provisions of the will. On the hearing before the surrogate, Daniel Jackson, who was a specific and residuary legatee under the will, was called as a witness by the contestants, who offered to prove by him various conversations and transactions between the decedent and the witness, and with others in his presence. These were objected to and excluded, the surrogate ruling that the testimony of the witness as to “ every conversation with the deceased when this witness was present ” was ruled out.</p> <p>Further facts appear in the opinion.</p> <p>The surrogate erred in excluding the testimony of the executor, Daniel Jackson, as to conversations with and declarations by testator in the presence of Mrs. Folte, the proponent of contested paper. (Schenck v. Dart, 22 N. Y. 420.) The burden of proof was upon proponent to show the bona fides of the transaction. (In re Smith, 95 N. Y. 516.) The presumption of undue influence arising from the relation of the parties and the age, feebleness and disease of the testator not having been overcome by affirmative evidence, probate should have been refused. (Rollwagen v. Rollwagen, 63 N. Y. 504; Jarman on Wills) 38; Swenarton v. Hancock, 9 Abb. [N. C.] 326; Cuvee v. Cornell, 75 N. Y. 91; Redf. on Wills, 515.) When competent evidence is rejected, and it appears that the evidence was important and material, and the court of review cannot say that, notwithstanding the error, the judgment is right, or if it entertains a reasonable doubt, a case is presented where the party excepting is necessarily prejudiced, and the error requires a reversal of ° the judgment. (In re Smith, 95 N. Y. 517.)</p> <p>It is not sufficient to establish the opportunity only to exercise undue influence, even with proof of interest, but affirmative acts must be shown which of themselves^ or by just inference, establish either coercion or undue influence. (In re Ellick, 19 Wkly. Dig. 232.) Section 829 of the Code of Civil Procedure excludes the. testimony of all conversations and "transactions with deceased by party in interest.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of June, 1889, which affirmed a judgment convicting defendants of the crime of grand larceny in the second degree, after, a felony, entered upon a decision of the Court of Sessions of Erie county.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The so-called record of conviction was erroneously received in evidence. (Morris v. Patchin, 24 N. Y. 395 ; Smith v. Blagge, 1 Johns. Cas. 239; Hatcher v. Roscheleau, 18 N. Y. 86.)</p> <p>The record of the former conviction of the defendants in Philadelphia, Penn., was properly received in evidence. (Penal Code, §§ 531, 688 ; U. S. R. S. 171, § 905; Taylor v. Commonwealth, 8 Wr. Pa. 123; R. S. 2776, § 10; Hawker v. People, 75 N. Y. 487; Comrs. v. Birdsall, 69 Penn. St. 482.) The former conviction of the defendant in Philadelphia was sufficiently proved. (Penal Code, § 688 ; Wood v. People, 53 N. Y. 513; Stevens v. People, 1 Hill, 262; People v. Price, 53 Hun, 185.) The two sets of photographs of the defendants, one taken in Philadelphia and the other in Buffalo, were proper evidence to corroborate the testimony of Stanwood as to the identity of the defendants with the parties convicted in Philadelphia. (People v. Cowley, 83 N. Y. 478; Archer v. N. Y. C. & H. R. R. R. Co., 106 id. 603; Ruloff v. People, 45 id. 224; Hynes v, McDermott, 82 id. 50; Underzook's Case, 76 Penn. St. 340; 20 Alb. L. J. 4; Wilcox v. Wilcox, 10 N. Y. S. R. 747; People v. Dimick, 107 N. Y. 13.) Ifo error was committed in allowing clerk Dickinson to testify as to what appeared on the diamond register in relation to the diamond bracelet. (Guy v. Meade, 22 N. Y. 463; Daly v. Byrne, 77 id. 188; Fontain v. Pettie, 38 id. 184.) The conduct and acts of the complaining witness, at the time of the discovery of the loss of the bracelet, was a proper subject of investigation. (1 Greenl. on Ev. 70 ; Philips v. People, 57 Barb. 360.) Ifo exception was taken to any portion of the judge’s charge; therefore, nothing therein is presented for review. (People v. Buddensick, 103 N. Y. 501; People v. Hovey, 92 id. 557; People v. Boas, Id. 561; Code crim. Pro. § 528.) This court has no power to review the facts in this case. The decision of the Supreme Court as to their weight and sufficiency is final. (People v. Donovan, 101 N. Y. 632.)</p>

• Appeal from order of the General Term of the Supreme Oourt in the third judicial department, made Uovember 26, 1889, which reversed an order of Special Term granting leave to plaintiffs assignee to issue execution or writ of possession upon a judgment recovered in this action October 17, 1863. The nature of ’the action and the facts, so far as material, are stated in the opinion. - The claim of adverse possession is not well founded.

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made February 118 1889, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus, directed to defendant as mayor of Long Island City, commanding him to issue his warrant to the relator as prescribed.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The relator was not the lowest bidder, and his contract was, therefore, void. ' (Charter Laws of 1871, 985, § 29 ; Appleby v. Mayor, etc., 15 How. Pr. 423; McDonald v. Mayor, etc., 68 N. Y. 23; Reilly v. Mayor, etc., 7 N. Y. S. R. 61; Brady v. Mayor, etc., 20 N. Y. 312; 7 Abb. Pr. 234; Dickinson v. Poughkeepsie, 75 N. Y. 65 ; 7 Huh, 1.) If the claim, was illegal it was not within the power of the common council by a pretended audit to legalize it. (Lyddy v. L. I. City, 104 N. Y. 218; People v. Stout, 4 Abb. Pr. 22.) The resolution awarding the contract to the relator never became legally operative, for the reason that the veto of it by the mayor was not overruled. (Laws of 1871, 902, § 5; Peck v. City of Rochester, 18 N. Y. S. R. 244.) Conceding the validity of the contract, one-half of the relator’s claim is invalid, because it is for services before the contract was made. (Brown on Stat. of Frauds, § 291; McAleer v. Corning, 18 J. & S. 63; Vaughn v. De Wandler, 63 How. Pr. 378, 381.) The relator’s remedy is by action, not by- mandamus. (Clark v. Miller, 54 N. Y. 528; People ex rel. v. Thompson, 25 Barb. 73 ; People ex rel. v. Campbell 72. N. Y.. 496; People ex rel. v. Hawkins, 46 id. 9 ; People ex rel. v. Insp. of Schools, 44 How. Pr. 322.)</p> <p>The common council in the exercise of its power and discretion lawfully awarded the contract to the relator. (Laws of 1871, chap. 461, § 29; E. R. G. Co. v. Donnelly, 93 N. Y. 557.) The common council, representing the city (§ 1, chap. 1, tit. 3 of the charter), audited and allowed the installment due upon the contract (page 9), and such action was conclusive (§§ 12 and 13, chap. 1, tit. 3 of the charter.)</p>

<p>Appeal from order of the General Term of the Court of Common Pleas for the city and county of Hew York, made June 2, 1890, which affirmed an order of Special Term granting an injunction pendente lite.</p> <p>This action was brought by plaintiff, a vestryman of the Protestant Episcopal church of St. Stephen, in the city of Hew York, as trustee, against the rector, wardens, and vestrymen of said church, and the rector, wardens and vestrymen of the Holy Trinity church, of Harlem, to restrain the carrying out of an agreement for consolidation made by and between the two churches, both of which were incorporated under the laws of this state. It was alleged in the complaint that certain resolutions authorizing the making of the consolidation agreement had been adopted by the vestry of St. Stephen’s church fraudulently and illegally, and that the consolidation proposed was against the method and opposed to the wishes of the members of the church.</p> <p>The provision of the statute as to the consolidation of religious societies (§ 3, chap. 176, Laws of 1876, as amended by chap. 167, Laws of 1880) is as follows:</p> <p>“Any two or more of the corporations aforesaid are hereby authorized to unite and consolidate themselves into a single corporation of the denomination to which at least one of such corporations shall belong, in the manner following: The said corporation may enter into an agreement, under their respective seals, for the union and consolidation of the said corporations, setting forth the terms and conditions thereof, the name of the proposed new corporation, the church or denomination to which it shall belong, the names of the persons who shall be church wardens and vestrymen, or elders and deacons or trustees or other officers as the case may be, until the first annual election of the proposed new corporation, and fixing the day of such election. But in the case of the Protestant Episcopal Churches no such agreement shall be valid unless approved by the bishop and standing committee of the diocese in which such churches are situated; and in case of Presbyterian churches, a union under this act shall not be valid unless approved by the presbytery with which such churches are connected. Each of the said corporations may make its separate petition to the Supreme Court in the judicial district in which such corporations are situated for an order for such union and consolidation; setting forth in such petition the reason for such union and consolidation, the agreement made as hereinbefore provided, and a statement of all its property, real and personal, all its debts and liabilities, and the amount and sources of its annual income. Upon such petition from each of such corporations so proposing to be united and consolidated, and upon the said agreement satisfactorily proved or certified, the Supreme Court may, in case it shall deem it proper, make an order for the union and consolidation of such corporations, determining all the terms and conditions and provisions thereof. All parties interested therein may be heard on such petition. When such order is made and entered according to the practice of the court, the said corporations shall be united and consolidated into one corporation by the name designated in the order, and it shall have all the rights and powers, and be subject to all the obligations of religious corporations under the act to which this is supplementary, and the acts amendatory thereof and supplementary thereto.”</p> <p>An injunction was granted restraining the defendants pendente lite from effecting a consolidation of said churches, and from selling or agreeing to sell or transfer the real estate of St. Stephen’s church.</p> <p>The court below has not-jurisdiction of the subject of this action. (M. A. B. Church v. O. S. B. Church, 46 N. Y. 187; Laws of 1875, chap. 209; Laws of 1876, chap. 176 ; Morawetz on Corp. § 940; Heiser v. Mayor, etc., 104 N. Y. 68, 72; Dudley v. Mayhew, 8 id. 9, 15; Jessup v. Carnegie, 80 id. 441.; Brown's Appeal, 66 Penn. 157; Janney v. Buell, 55 Ala. 408; Coleman v. Freeman, 3 Ga. 137; High on Injunctions, .§ 31.; People v. Wasson, 64 N. Y. 167; Wallack v. Society for Reformation, etc., 67 id. 23; Savage v. Allen, 54 id. 458; Mandeville v. Reynolds, 68 id. '528; Pom. Eq. Juris. §§ 164, 183 ; Stubenrauch v. Neyenesch, 54 la. 567; Gaertner v. Fon du Lac, 34 Wis. 497; Kelsey v. King, 35 Barb. 410; Schell v. Erie R. Co., 51 id. 369; Grant v. Quick, 5 Sandf. 612; Wenfield v. Bacon, 24 Barb. 154; E. R. Co. v. Ramsey, 53 N. Y. 647; Wallack v. Society, 67 id. 23.) The alleged incompleteness of the statute does not give jurisdiction to the court below. (Pom. Eq. Juris. § 182.) The action is not maintainable. (Greaves v. Gouge, 69 N. Y. 155 ; Bronson v. L. R. R. Co., 2 Wall. 283.) The call for the meeting of the sixth of February was sufficient. (Laws of 1813, chap. 60, § 5 ; Laws of 1868, chap. 803, § 15; Granger v. O. E. Co., 59 Cal. 67.8; Cook on Stockholders, § 600; Porter v. Robinson, 30 Hun, 209; Sargent v. Webster, 13 Metc. 497; Stevens v. E. M. H. Society, 12 Vt. 688.) The absence of the defendants Jacobs and Smith from the meeting of February sixth does not affect the validity of the resolutions for consolidation. (Porter v. Robinson, 30 Hun, 210.) The plaintiff cannot avail himself of the alleged failure to give sufficient notice to the defendants Jacobs and Smith of the meeting of February sixth. (S., etc., P. R. Co. v. Thatcher, 11 N. Y. 102; People v. Peck, 11 Wend. 604; In re M. & H. R. R. Co., 19 id. 135; Samuel v. Holliday, 1 Woolw. 400 ; Zabriskie v. C., etc., R. R. Co., 23 How. [U. S.] 381; Jones v. M., etc., T. Co., 7 Ind. 547.) The delegation of power to the committee to execute the agreement for consolidation was valid and the committee did not exceed its powers. (75 N. Y. 393; 9 Daly, 117; Hoyt v. Thompson, 19 N. Y. 207; Olcott v. T. R. R. Co., 27 id. 546; Burrill v. N. Bank, 2 Metc. 163.) The allegation that a majority of the congregation are opposed will not support an injunction. (In re St. Ann’s Church, 23 How. Pr. 285; In re S. B. Society, 20 id. 324; M. A. B. Church v. O. S. B. Church, 46 N. Y. 136, 137; In re S. B. Society, 20 How. Pr. 325.) The order is appealable. (McHenry v. Jewett, 90 N. Y. 58; Blossom v. Estes, 84 id. 614; Reed v. Mayor, etc., 97 id. 620; Tolman v. S., etc., R. R. Co., 92 id. 354; Equitable v. Stevens, 63 id. 341.)</p> <p>The order appealed from is not reviewable by this court. (Paul v. Munger, 47 N. Y. 469 ; Calkin v. M. O. Co., 65 id. 557; Hatch v. W. U. T. Co., 93 id. 640; McHenry v. Jewett, 90 id. 58; Selchow v. Baker, 93 id. 59; Anderson v. Anderson, 112 id. 104; Allen v. Meyer, 73 id. 1; Haebler v. Bernharth, 115 id. 495.) The action is properly brought by the plaintiff as trustee, etc., and in order to maintain the action, he need not show that he has demanded that the corporation bring the suit and that it has refused to do so. (Brinckerhoff v. Bostwick, 88 N. Y. 55, 59 ; Butts v. Wood, 37 id. 317; Robinson v. Smith, 3 Paige, 222; Currier v. N. Y. S. & B. R. R. Co., 35 Hun, 355; Anderton v. Wolf, 41 id. 571; Sheridan v. S. E. L. Co., 38 id. 396; Kelsey v. Sargeant, 40 id. 450; Brewster v. Hatch, 4 N. Y. S. R. 617; Young v. Drake, 8 Hun, 61; Lewin on Trusts, 274; Robinson v. Smith, 3 Paige, 222, 223; Stokes v. Phelps’ Mission, 47 Hun, 570; F. R. P. Church v. Bowden, 14 Abb. [N. C.] 356.) A court of equity has power t» restrain the proceedings of the trustees of a religious corporation and annul their acts. (Wyatt v. Benson, 23 Barb. 327; In re St. Ann's Church, 23 How. Pr. 286; Stokes v. Phelps' Mission, 47 Hun, 570.) The resolutions claimed to have been passed at the special meeting of the vestry of the church of St. Stephen, held on February 6, 1890, were and are illegal and invalid. (Morawetz on Corp. §§ 531, 532; 1 Waterman on Corp. 207, 209; Boone on Corp. § 64; P. M. Ins. Co. v. Westcott, 14 Gray, 440; Lawson on Usages and Customs, §§ 106, 107; Kortright v. Commercial Bank, 20 Wend. 91; 22 id. 348; Sims v. U. S. T. Co., 248, 540; Angell & Ames on Corp. §§ 344, 368.) Sufficient motives to account for the action of the chief conspirators are clearly shown in the complaint. The circumstances set forth in the complaint and affidavits make it evident that there was a prearranged plan and conspiracy. (Kelly v. People, 55 N. Y. 576; People v. Mather, 4 Wend. 229, 261.) Under all the authorities the defendants Hart, Mooney, Linen and Cock, were clearly disqualified from voting for the resolutions for consolidation. (Davoue v. Fannimg, 2 Johns. Ch. 252; Jewett v. Miller, 10 N. Y. 405; Butts v. Woods, 37 id. 317; Ogden v. Murray, 37 id. 202; Munson v. S. G. & C. R. R. Co., 103 id. 58; Wardell v. R. R. Co., 103 U. S. 651.) The rector, wardens and vestrymen of the church of St. Stephen are, under the law, trustees of the corporation, and their acts as trustees are subject to the same rules as are the acts of trustees of other corporations, and they can no more use. their position as such trustees to promote their own interests than can the directors of a bank or of a railroad company use their positions for a transaction with their corporation for their own benefit. (Robertson v. Bullions, 11 N. Y. 243; 45 Barb. 356, 357; In re M. E. Society v. Perry, 51 Hun, 104.) The improper and unlawful suppression, concealment and misrepresentations of the objects of the meeting show that the defendants Hart, Mooney, Linen and Pike were influenced by improper motives, besides being disqualified by reason of interest from voting for the scheme of consolidation. (Armstrong v. Edwards, 95 Ind. 422; People v. A. & S. R. Co., 55 Barb. 344; Wilcox on Gorp. 51; People v. Peck, 11 Wend. 604.) The vestry of the church of St. Stephen had no right to undertake a consolidation, which would practically and wholly destroy the church, and remove its place of worship, and transfer the property to another church several miles away, against the wishes of the members of the church and congregation which constituted the corporation. (Laws of 1876, chap. 176 ; Laws of 1875, chap. 209, § 4; Robertson v. Bullions, 11 N. Y. 243; Walker v. Wilcox, 66 id. 655; P. Bank v. S. A. R. C. Church, 109 id. 512; Morawetz on Corp. § 512; In re S. G. M. E. Church, 21 Wkly. Dig. 84.) The relief sought here cannot be obtained in the proceeding pending in the Supreme Court. (Kingsport v. Ramson, 29 W. V. 487; Code Civ. Pro. §§ 2070, 2082, 2083; People v. Cromwell, 102 N. Y. 476; People v. Fairman, 91 id. 385; People v. Richards, 99 id. 620; High on Inj. § 35.) 24o proceeding for a consolidation of the church of St. Stephen with Holy Trinity Church is now pending before the Supreme or any other court. A threatened proceeding of that kind cannot be pleaded as a bar to this action. (F. R. P. Church v. Bowden, 14 Abb. [N. C.] 357; 10 id. 1; Isham v. Trustees, etc., 63 How. Pr. 465; Johan v. Fullagar, 14 Abb. [N. C.] 353; Little v. Jayne, 124 Ill. 123; High on Inj. § 30.) Directors of corporations may be restrained from doing acts which ordinarily would be within the scope of their authority and power, when in view of the special circumstances tho performance of such acts would be in bad faith or an injury to the. interests of the stockholders. ( Wright v. W. M. Co., 40 Cal. 20, 27; Dodge v. Woolsey, 18 How. [U. S.] 340.) Preliminary injunctions which only prevent the defendant from doing an act which would render the final judgment ineffectual may be granted with some readiness. (Bronk v. Riley, 50 Hun, 489; A., etc., T. Co. v. Baltimore, 14 J. & S. 421; Haskell v. H. University, 8 Barb. 174.)</p>

The facts, so far as material, are stated in the opinion. This order is appealable. (Code Civ. Pro. §§ 190/738; 63 N. Y. 261; 22 id. 290.) This action can be severed and a separate judgment taken against the defendant insurance company, in favor of the plaintiff, and a separate judgment in favor of defendant Coit. (73 N. Y. 452.) The offer of judgment took away from the trial court that discretion as to costs that the court ordinarily has in equity actions.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made January 24, 1890, which affirmed an order of Special Term denying a motion to vacate a warrant of commitment for misconduct, under sections 854, 855 and 856 of the Code of Civil Procedure.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made April 22, 1890, which affirmed the proceedings, findings and order of the Court of Oyer and Terminer adjudging the relator guilty o£ criminal contempt, and imposing punishment therefor.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made April 4,1888, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p> <p>This case is not reported for the reason that a majority of the court did not concur in either opinion.</p>