Volume 122 — New York Appellate Division Reports

Application to confirm the report of a referee convicting the respondent of unprofessional misconduct which calls for his being disciplined by this court.

<p>Motion to disbar an attorney.</p>

Appeal by the defendant, the Hew York City Railway Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 4th day of October, 1907.

Appeal by tile'defendant, Peter F. Bammann, from a judgment of'the Supreme Court in ¡favor ©f tire plaintiff, entered in-the ¡office. , of the clerk of the county of New York on the '7th day of March,. 1907, upon the verdict of a jury for $1,:50.Q, and also frem-an order entered In said, clerlds office on--the 26th: day of March, 1907, denying'the defendant’s motion-for a new trial made upon the minutes.

Appeal by the plaintiff, Maynard FT. Clement, as commissioner, etc., from a judgment of the Supreme Court in favor of .the defendant, entered in the office of the clerk of the county of Uew York on the 16th day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Pleading—action to recover for stock sold — collateral agreements not conditions precedent to action.</p> <p>The complaint in an action to recover the purchase price of stock sold alleged in substance that the plaintiff with others owned and controlled stock of a certain corporation, and that the defendant entered into an agreement with the plaintiff to buy the entire holdings of the plaintiff and another, and that it was also agreed that'another party, R, the owner of the remainder'of tlie stock, should accept a similar proposition' covering its entire holdings, and that the corporation whose stock was so sold had entered into no contracts considered objec- . tionable by counsel for the defendant; that the plaintiff ■ transferred a portion of its holdings to the defendant, which were paid for, but that the remainder of its holdings was tendered and refused.</p> <p>Oh demurrer based on the failure to show performance of the conditions precedent to action, in that R. had not made or accepted a similar proposition,</p> <p>Held, that performance by R. and the provision that the company whose stock was sold had entered into no objectionable contracts were not conditions precedent to the plaintiff’s right to recover, nor alleged as such, but were independent agreements upon which the defendant might base a separate action or assert a counterclaim if damage had been suffered through a breach thereof.-</p>

Appeal by the plaintiff, Charles F. Goepel, 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 Flew York on the 16th day of July, 1907, as denies the plaintiff's motion to require the defendant to return to the sheriff property levied upon under a warrant of attachment but which had been returned to the' defendant upon the vacating of the warrant of attachment, or, in lieu of the return of…

Appeal by the defendant, Isaac A. Hopper & Son, Incorporated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of April, 1907, upon the verdict of a jury for $18,000, and also from an order entered, in said clerk’s office on the 2d day of April, 1907, denying tire defendant’s motion for a new trial made upon the minutes.

Appeal by the .plaintiffs, Justus Bolter and another, 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 18th day of July, 1907, denying tire plaintiffs’ motion for the continuation of an injunction pendente lite.

Appeal by the defendants, George S. Hart and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of September, 1907, denying the said defendants’ motion to dismiss the complaint herein as to them because of the failure of the plaintiff to prosecute.'

Appeal, by the defendants, Charles-J. Townsend-and others, as executors, etc., from'an order of the' Supreme' Court, made at the Hew York Special Term and entered in the office- of .the clerk, of the county of HeW York on the 16tli day of September, 1907,. denying the said defendants’ motion to dismiss the complaint herein as to them because of the failure of the plaintiff to prosecute.

Appeal by the defendant, the Hew York Contracting Company, Pennsylvania Terminal, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of February, 1907, denying the said defendant’s motion to compel the plaintiff to serve an amended complaint in which the causes of action based upon the common law and upon the statutory liability under the Employers’ Liability Act (Laws of 1902,…

Appeal by the plaintiff, Antonio Nocito, 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 16tli day of Oqtober, 1907, denying the plaintiff’s motion to vacate an order for his examination before trial.

Appeal by the defendant, Paul N. Spofford, 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 16th day of 'July, 1907, directing that a commission issue to take the testimony of William 0¿ Clopton as a witness on behalf of the plaintiffs.

Appeal by the defendants, Henry Ungrich, Jr., and another, as executors, etc., from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of June, 1907, as directs that .they forthwith pay to the respondent, Martin L. Ungrich, the sum of $2,919.20, “ without prejudice to the rights of any of the parties in this action.”

Appeal by the defendants, John J. O’Donohue and others, from, an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of March, 1907,- upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said ' defendants’ demurrer to the second amended-complaint herein.

Appeal by the plaintiffs, Alexander Duer Irving and others, 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 6th day of August, 1907, as disallows certain cross-interrogatories proposed by the plaintiffs to be annexed to a commission.

Appeal by the Town of Cheektowaga, Erie county, from a determination of the Board of Railroad Commissioners of the State of New York, made on the 30th day of April, 1907, and filed in the office of the clerk of said Board, relating to the manner of .crossing the tracks of the petitioner, located in said town, The proceeding was instituted by the petitioner, the Terminal Railway of Buffalo, on or about the 3Pth day of November, 1906, by filing its' petition with the Board of…

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 25th day of January, 1907, upon the dismissal of the complaint by direction of the court on a trial at the Erie County Trial Term upon the . ground that the said complaint does not state facts sufficient to constitute a cause of action.

Appeal by the defendants, Byron ¡D. Gibson and another, from a judgment of the Supreme Court, rendered on the 22d day of September, 1906, upon the verdict of a jury after a trial in the county of Wyoming, convicting ■ the defendants of the crime of bribery and sentencing them to the State’s prison at Auburn for the term of tive years, and also from an order made on the 30tlx day of April, 1906, overruling the defendants’ demurrer to the indictment, .the exceptions taken to…

Appeal by the plaintiff, Samuel Babcock, from a judgment of the Supreme Court in favor of the defendant, entered in' the office of the clerk of the county of Oswego on the 8th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Oswego Trial Term, and also from an order entered in said clerk’s office on the 8th day of June, 1907, directing the dismissal of the complaint.

Appeal by the defendants, Mary Patterson and another, as administrators, etc., from a jndgmént of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 12th day of March, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 12th day of March, 1907, denying the defendants’ motion for a new-trial made upon…

Appeal by the defendant, The Lehigh Valley 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 Erie on the 11th 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 11th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Passaic Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 27th day of March, 1907, upon the verdict of a jury for $3,000, and also, from an order entered in said clerk’s office on the 30th day of March, 1907, denying the defendant’s motion for a new. trial made upon the minutes.

Appeal by the American Fidelity Company, judgment creditor, from an order of the County Court of the county of Erie, entered in the office of the clerk of said county on the 4th day of June, 1907, vacating a prior order which required William F. Whité, a a judgment debtor, to appear and be examined concerning his property. ' -

Appeal by the plaintiff, Joseph Lewis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Lewis on the 14th day of May, 1906, upon the dismissal of the complaint by direction .of the court after a trial at the Lewis Trial Term,, and also from an. order entered in said clerk’s office on the 14tli day of May, 4906, granting thé defendant’s motion for a nonsuit.

' Appeal by the defendants, John Gelm, as sheriff of Chautauqua county, 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 Chautauqua on the 11th day of January, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of December, 1896, denying the defendants’ motion for a new trial made upon, the minutes. ,

Appeal by the defendants, John T. Cade 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 Erie on the 25tli day of February, 1907, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the plaintiff, Dora E. Endress, from certain parts of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Livingston on the 7th day of February, 1907, upon the decision of the court rendered after a trial before the court without a jury at the Livingston Trial Term.

Appeal by the defendant, The Bew 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 25th day of April, 1907, upon the verdict of a jury for $15,159.38, and also from an order entered in said clerk’s office on the 25th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.,

Appeal by the defendant, Edward Tuck, from an interlocutory judgment of the Supreme Courttin favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 13th day of May, 1907, upon the decision óf the court, rendered after a trial at the Onondaga Special Term, overruling -the defendant’s demurrer to the complaint.

Appeal by the plaintiffs, Frederick L. Henghes and another, from an order of the Supreme Court, made at. the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 19th day of June, 1907, striking the above-entitled case from the general calendar of the Trial Term on the ground that it was an equitable action and not triable by jury.

<p>Appeal by the defendant, Tbe New York Central 'and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 1st day of March, 1907, pursuant, to an order entered in said clerk’s office on the 1st day.of March, 1907, affirming a judgment of the Municipal Court of the city of Buffalo, .and also from the said order upon which the judgment appealed from was entered.</p>

Appeal by the defendant, Harold L. Palmer, as superintendent of the Utica State Hospital, from so much of an order of the Supreme Court, made at the Herkimer Special Term and entered in the office of the clerk of the county of Herkimer on the 6th day of April, 1907,. as awards costs against the defendant. The order also directed the release of the relator from the Utica State Hospital, but that part of the order is not appealed from.

<p>Beal property — injury to lands by diversion of watercourse —measure of damages — extra allowance.</p> <p>The measure of damages in an action to recover for injuries to lands by water caused by the improper alignment of bridge abutments is the diminution in value -where the injury is permanent; if the injury is fór a limited time only the damages are measured by the diminution in the rental value. If, however, the injury may be repaired or the land restored to its former condition, the reasonable cost thereof, if less than the diminution in value of the whole property, is the proper measure of damages.</p> <p>Evidence taken in an action to obtain an injunction requiring the defendant to Reconstruct a bridge and restore the stream to its original course and to restore injuries to the plaintiffs land, or in the alternative for damages-, examined and held, that the findings as to the value of the lands and the amount of damage were erroneous..</p> <p>A judgment in such action requiring the defendant to pay damages for the restoration of dikes and embankments and also tq restore the dikes, or in.the alternative to take a conveyance of the lands damaged, is erroneoud, for if the defendant take title on payment, of ful value, the plaintiff is not entitled to recover for restoration.</p> <p>Additional allowance denied.</p>

<p>Appeal by the defendant, John W. Neff, from a judgment o.f the Supreme Court, rendered on the 6tli day of August, 1906, upon the verdict of a jury after a trial at -the Wyoming -Trial Term, convicting the defendant of the crime of grand larceny in the first' degree.</p> <p>The defendant, John W. Neff, was indicted jointly with Rowland J. Conover for the .crime of grand larceny in the first degree, alleged to have been committed on the 1st day of October, 1901, charging them with stealing $7,500'in money, belonging to the county of Erie. The defendants were tried separately. . Conover was tried and convicted at the Erie Trial Term, and Neff was tried at the Wyoming Trial Term, he having made a 'motion to remove the action from Erie county, which was granted, and the place of trial changed to Wyoming county. - ■</p> <p>. He was tried at an extraordinary term appointed by the Governor in July, 1906. The indictment contained a second count, also charging the Crime as receiving stolen property, but that count was withdrawn from the consideration of the jury, and the defendant was convicted upon the first count, charging the offense as grand larceny in the first degree. ..</p> <p>Motions by the defendant in arrest of judgment and for a new trial were denied, and the defendant was sentenced to imprisonment for the term of seven years.</p>

Appeal by the defendant, the Liverpool and London and Globe 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 Erie on the 18th day of March, 1907, upon the verdict of a jury rendered -by direction of the court,' and also from ah order entered in said clerk’s office on the 18th day of March, 1907, denying the defendant’s motion for a'new trial, made upon the minutes.

Appeal by the defendant, Fred D. Kunow, from a judgment of the Supreme.Court in favor of the plaintiff, entered in the office: of the clerk of the county of Tates on the 6th day of June, 1907, upon the verdict of a jury rendered by direction of the court, and also from ail order entered in said clerk’s office on the 29tli day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Eva Henson, 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 Ontario on the 31st day of January, 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 Ontario Trial Term, and also from an order entered in said clerk’s office on the 19th day of November, 1906, denying the plaintiff’s motion…

Appeal by the plaintiffs, Henry H. Persons and another, as receivers, etc., from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the-cleric of the county of Erie on the-14th day of May, 1907, directing the plaintiffs to satisfy three judgments entered against defendants May 13, 1904, June 11, 1906, and April 16, 1907, respectively, upon payment by them of the aggregate amount of the last two judgments, which were judgments for costs…

Separate appeals by the defendants, The City of Syracuse and Thomas F. Moore,.from, certain parts of a judgment of the Supreme Court i’n favor of the plaidtiff, entered in the office of the clerk of the county of Onondaga on the 19th day of January, 1907, upon the decision of the court- rendered after a trial at the Onondaga Special Term.

Appeal by the plaintiff, the Adirondack League Club, from a judgment of the Supreme Court in favor of the defendant, entered > in the office of the clerk of the county of Herkimer on the 3d day of December, 1906, upon the decision of the court, rendered after a trial at the Herkimer Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, the Battle Island Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the officé of the clerk of the county of Oswego on the 5th day of February, 1907, 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 January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the defendant, the Citizens’ Steamboat Company of Troy, 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 Rensselaer on the 24th day. of January^ 1907, upon the verdict of a. jury for $6,000, and also from an order entered in said clerk’s office on the 6th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the Oneonta and Mohawk Valley Railroad Conxpány 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 Otsego on the 9th day of January, 1907, and in the office of the clerk of the county of Herkimer on the 10th day of January, 1907, upon the decision of the court, rendered after a trial at the Otsego Special Term, declaring certain certificates issued by the receiver of the…

Appeal by the defendant, The. Saratoga Gas, Electric Light, Heat and Power Company, from an order'of the Commission of Gas and Electricity of the State of Hew York, made and entered tipon the 29th day of June, 1907, fixing the maximum price which the defendant could' charge for gas at one dollar and forty-five cents per 1,000 cubic feet, and the maximum price for electric current at eight cents per kilowatt hour.

<p>Contract — compromise settling action—consideration.-</p> <p>Where there is a dispute as to whether certain lumber shipped by the' plaintiff in the name of' the defendant was bought by the .defendant or was shipped-. • through the defendant as- the plaintiff's agent, and. also as to the liability of the parties for deductions" from the purchase price claimed by. the consignee,, a subsequent agreement made upon the discontinuance of an action against the defendant for the purchase price, which provides that, the defendant shall pay for a certain portion of - thé .lumber, but is not to be liable for the balance unless the money is collected from the consignee, is founded upon a good consideration, and the plaintiff is not entitled to maintain another action for the purchase price without showing that the consignee has paid the defendant'.</p>

Appeal by the plaintiff,. Alfred Valois, from so much of a judgment of the County Court of St. Lawrence county in favor of the defendant, entered in .the office of the cleric of said county on the 21st day of March, 1907, as reverses a judgment of a justice of the peace of the town of Oswégatchie in favor of the plaintiff as to the first cause of action alleged in the complaint.

Appeal by the 'defendant, Oharles M. Snyder, from a judgment of the County Court of Fulton county in favor of the plaintiff, entered in the office of the clerk of said county on-the loth day of December, 1906, itpon the verdict of a jury rendered by direction of the court. ' . The action is upon a bond on appeal for $200. It was in the usual form, and.the defendant, Charles M. Snyder, was the surety thereon. ...

Appeal by thé defendant, William IT. Hall, from a judgment of the Supreme Court in favor of - the plaintiff, entered in the office of the ■ clerk of the county of St. Lawrence on the 4th day of February, 1907, upon the -verdict of a jury for $1,060, rendered by direction of the court' after a trial at the St. Lawrence Trial-Term. The .action is for negligence.

Appeal ■ by the defendant, Emelie FI. Champney, from a judg-. ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 2oth day of May, 1907, upon the decision of the court rendered after a trial at'the Warren Special Term. .

Appeal by the plaintiff, Bichard H. McCarty, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Saratoga on the 22d day of July, 1907.

■ Appeal by the plaintiffs, hiorris Friedman and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chenango on the 10th day of April, 1907, requiring the plaintiffs to make the complaint more definite and certain.

Appeal by the defendant, the Oneida Rational Chuck Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 10th day of October, 1906, upon the report of a referee, with notice of an intention to bring up for review upon such appeal so much of an order entered in said clerk’s office on the 8th day of April, 1905, as continues an injunction pendente lite / also an interlocutory judgment entered…

Appeal by the plaintiff, Vasco P. Abbott, from a judgment of the County Court of-St. Lawrence county in favor of the defendant, entered in the- office of the clerk of said county on the 11th day of February, 1907, upon an order entered in said clerk’s office on the 28th day of November, 1906, dismissing the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and also from the said order directing the dismissal of the complaint.

Appeal by the defendant, the Hudson Valley 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 Washington on the 23d day of January, 1907, upon the verdict of a: jury for $4,500, and also from an. order entered in said clerk’s office on the 1st day of February, 1907, denying the defendant’s motion for a new- trial made upon the minutes.

Appeal by the defendant, the Walker and Williams 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 Albany on the 22d day of March, 1907, upon the verdict of a jury for 82,000, and also from an order entered in said clerk’s office on the 26tli day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Nicholas Palmer and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of'the clerk of the county of Saratoga on the 23d day of July, 1907, upon the dismissal of the complaint at the opening of .case on a trial at the Saratoga Special Term. ... •.

<p>Railroad — public convenience and necessity—Statute of Limitations — when certiorari to review issuance of certificate not barred — acts not constituting payment of ten per cent of capital.</p> <p>The former Railroad Commission was not authorized to issue a certificate of public convenience and necessity until furnished with a receipt from the State Treasurer showing that the tax required by section 180 of the Tax Law had been paid, and a determination to issue such certificate did not become final and binding until the delivery of the certificate to the railroad after the payment of said tax. Hence, certiorari to review the determination to issue-such certificate is not barred if the writ was issued and served within four months from the time the certificate was delivered to the railroad, although the railroad failed to produce a tax receipt until four years from the time the' certificate was actually signed had elapsed.</p> <p>A railroad does not comply with section 2 of the Railroad Law, requiring the payment in cash of ten per cent of its capital stock at the time of filing its certificate of incorporation, by the incorporators depositing their demand note for the amount with a bank secured by the consents of property owners and other papers, belonging to the railroad and immediately drawing a check for the amount to an attorney who indorsed the check and returned it to the bank in payment of the note, it being understood that the proceeds of the note were not to be drawn for any purpose except for the payment of the note.</p> <p>Such transaction was a mere form and did not authorize the Board of Railroad Commissioners to issue a certificate of public convenience and necessity.</p> <p>Although after the filing of the affidavit of payment of ten per cent of the capital stock, officers were elected and by resolution ratified the action of the incorporators, such ratification was without effect because) the tax aforesaid not being paid and the certificate of public convenience and necessity not having been delivered, the corporation was not entitled to do any corporate act.</p>

Appeal by the defendant, Aran Vail, from so much of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 8th day of July, 1907, as denies the said defendant’s motion for costs and an extra allowance in the above-entitled condemnation proceeding.

Appeal by the defendant, The Kennedy Valve Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of. the county of Albany on the 14th. day of April, 1905, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 14th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the McClintic-Marshall Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 1st day of November, 1906, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 5th day of November, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Standard Refrigerator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 2d day of February, 1907, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 18th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John M. Carroll, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on tlie'lst day of March, 1907, upon the decision of the court rendered after a trial at the Saratoga Special Term overruling the- said defendant’s demurrer to the complaint. : - The demurrer challenges the' complaint on the ground that it does not state facts sufficient to constitute a cause of…

<p>Appeal by the claimant, William Fitzgerald, from a judgment of the Court of Claims of the State of .New York, rendered on the 18th day of June, 1906, dismissing the appellant’s claim.</p>

Appeal by the defendant, Samuel Morgan, from an- interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 26th day of March, 1907, upon the decision of the court rendered after a trial before the court without a jury at the Warren Trial Term. This is an action for the partition of a farm. Phoebe Stover, the original owner, conveyed the farm in 1876 to her daughter, Emma G-alusha.

'Appeal by-the defendants, Benjamin Douglass, Jr., and another^ from an order made by a justice of the Supreme Court and' entered in the office 'of the clerk of the county .of Chemung on the 25th day of June, 1907, denying the said defendants’ motion to vacate a prior order enjoining them from a further prosecution of an action brought by Andrew J. Graham, against Moses Reis. •

Appeal by the petitioner, William C. Duell, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 12th day of July, 1907, denying his application for a peremptory writ of mandamus.' Order affirmed, with costs, upon the opinion of Mr. Justice Fitts at Special Term. All concurred, except Kellogg, J., dissenting in opinion in which Smith, P. J., concurred.

Appeal in both actions,- which were consolidated, by Leonard' Ames and others from a judgment of the Supreme Court in favor of the Norwich Light Company, entered in the office of the clerk of the county of Chenango on the 30th day of June, 1902, upon the report of a referee, and also from an order entered in said clerk’s office on Lie 23d day of May, 1902, denying the appellants’ motion to set aside the said report of the referee and for a new trial.

Appeal by the defendant, John O’Eourke, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of- the clerk of the county of Franklin on the 20th day of August, 1907, denying, the defendant’s motion for a bill of particulars.

Appeal by the defendants, Gouvenier M. Herrick, individually and as executor, and others, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on the 21st day of June, 1907, appointing one George Anderson receiver of the freight barge Chicago.

Appeal by the plaintiff, Frank Duclos, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 11th day of January, 1907, upon the decision of the court rendered after a trial at the Essex Trial Term, certain questions having been submitted to the jury, dismissing the plaintiff’s complaint. .

Appeal by the plaintiff, Anna L. Horton, from an order of the Supreme Court, made at the Broomé Trial Term and entered in the office of the clerk of the county of Broome… Held: as a matter of law, that the publication was not libelous. * * * Ordered that the verdict 'herein be set aside and a new trial of the action be and the same is hereby granted because the verdict is contrary to law.” From.tiffs order setting aside the verdict the plaintiff has appealed to this court.

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

<p>Appeal by the plaintiff, Frank W. Slade, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga, on’ the 12th day of March, 1907, requiring the. plaintiff to receive .the answer of the defendant.</p> <p>The action is in ejectment. The complaint alleges that the defendant has unlawfully entered upon a portion of his land,, and is occupying the same without right, and asks that it be ejected from the same. The land in question constitutes a right of way, which is occupied' by the defendant for a trolley road in the town of Sara-toga. A strip of land adjoining the land in controversy was purchased by the defendant of the plaintiff, and the land in question is included in a.deed from the owner of land adjoining the same upon the other side from that upon which is situated the land deeded to the defendant by the plaintiff. An option was. obtained by the defendant upon the land which was afterwards deeded by the plaintiff. When the deed was presented to plaintiff to sign under that option, it seems that it included this land, which was not, however, included in the option. This deed the plaintiff refused to sign. It is claimed by the defendant that the plaintiff stated that the land was owned by a Miss Hodges, who was the owner of adjoining land, and in whose deed to.the plaintiff this piece of land is included. The claim of the plaintiff, however, is that no such representation was made, but that the plaintiff refused to sign the deed upon the ground that this piece of land was not included in the option.</p> <p>After the .commencement of the action and the service of the complaint, the defendant defaulted in answering. There were some negotiations between the parties. Finally at a Trial Term, when the plaintiff insisted upon an inquest, some conversation was had before the judge, who put the case over the term, and authorized the defendant to serve its answer within ten days. This authority was orally given, and was not entered upon the minutes of the court, or included in any order thereafter entered. The defendant tendered an answer within the ten days, which was refused by the plaintiff, upon the ground that it was too late. Thereafter a motion was made to require the plaintiff to receive this answer. Upon this motion the facts hereinbefore stated appeared by affidavit, and an order was made that the plaintiff be required to receive the answer of the defendant which was served.</p>

<p>Appeal by -the plaintiffs, Julia G. Morgan and another, as executrices, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warisen on thé' 1st day of May, 1.90ft, upon- the dismissal of the complaint by direction of the court upon the opening of the case at the Warren Trial Term.</p> <p>The original plaintiff in this action was Mary W. Griffin, who died during the pendency thereof. Julia G. Morgan and Clara L. Griffin, as executrices of her last will and testament, were duly substituted as plaintiffs herein.</p>

Appeal by Margaret M. Case, as administratrix, etc., of Joseph W. Case, deceased, from a decree of the Surrogate’s Court of the county of Fulton, entered in said- Surrogate’s Court on the 1st day of August, 1906, settling her accounts as such administratrix. This proceeding was commenced by the administratrix for the judicial settlement of _ her account.

Appeal by the defendant, the Alpha 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 Albany on the 18th day of September, 1906, upon the report of a referee. Plaintiff for several years has been a dealer in cement and other building materials in the city of Albany, N. T. The defendant is a manufacturer of building cement commonly known as “Alpha” cement.

<p>Election Law—evidence waiver of secrecy of ballot — facts showing defect in voting machine but not impeaching return of canvassers.</p> <p>While it is the policy of the State to protect the secrecy of the ballot so that the voter may freely exercise his choice without being subject to intimidation or control by others, yet the protection being for his benefit he may waive it and testify in court as to his vote.</p> <p>As the statute permitting the use of voting machines requires that an elector desiring to vote for a-candidate must register his choice by making a change in a counter capable of being read by the inspectors, evidence that a certain number of electors exceeding in number the votes canvassed for a candidate pulled down the lever over the Democratic column containing his name does not impeach the return of the board of canvassers, for they are not called upon to determine whether the voting machine worked correctly or to correct any error, if one were made.</p> <p>But such evidence is admissible, to show that by reason of the failure of the machines to carry out and express the intent of the voters owing to defects, there was not a fair and complete expression of the popular will at the election:</p>

Appeal by Helen E. Foulds and others, as executors, etc-.,, of George B. Finch, deceased, from a decree of the -Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the 3.1st day of May, 1901, judicially settling the accounts of the temporary administrators of the estate of George B. Finch, deceased.

Appeal by the defendants, Edgar P. Holdridge 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 Otsego on tlie 19tli day of April, 1907, upon the decision of the court, rendered after a trial at the Otsego Special Term, sustaining the plaintiff’s demurrer to certain separate defenses in the said defendants’ answer.

Appeal by the defendant, Solomon Kelly, from an order of the County Court of Essex county, entered in the office of the clerk of said county on the 15th day of February, 1907, denying the defendant’s motion for a resettlement of an order dismissing his appeal from a judgment of a Justice’s Court of the town of Chesterfield. The plaintiff recovered a judgment -in Justice’s Court for $200 damages and $4.55 costs and the defendant appealed for a new trial in the County Court.

Appeal by the defendant, Susan F. Place, 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 Suffolk on the 3d day of November, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of November,-1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The South Brooklyn Railway Company and others, 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 12th day of July, 1906, modifying a judgment entered in said clerk’s office on the 9tli day of June, 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, granting an injunction to restrain a nuisance, with notice of an…

Appeal by the plaintiff, Silver & 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 23d day of September, 1907, granting leave to the defendants to serve a supplemental answer herein.

Appeal by the defendant, Walter E. Irving, 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 5th day of November, 1906, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 31st day of October, 1906, denying, the defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporations — resolution to bond village — General Municipal Law, section 5, construed.</p> <p>A bonding proposition submitted to the taxpayers of a village which provides for “ a sum to be raised annually by levying a tax on all taxable property in said village sufficient to pay the interest and principal of all said bonds as the same may become due” complies with section 5 of the General Municipal Law, which requires that an ordinance or resolution proposing a funded debt “shall provide for- raising annually by tax a sum sufficient to pay the interest and the principal as the same shall become due.” The statute does not require the resolution to specify the sum which shall be raised.</p> <p>Municipal bonds issued pursuant to such resolution are valid, and a bidder whose proposal has been accepted is bound.</p>

Appeal by the defendant, Ernestus G-ulick, 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 5th day of March, 1907, upon the decision of the court, rendered after a trial at the Kings County Trial Term, a jury having been waived.

Appeal by the defendant, the Brooklyn Heights Bailroad Company, from an order of the County Court of Kings County, entered in the office of the clerk of the county of .Kings on the 23d day of Hay, 1907, denying the defendant’s motion to vacate and disallow the taxation of costs herein.

<p>Practice —bringing in defendants in action at law — section 723, Code of Civil Procedure construed—liability of joint tort feasors — effect of judgment against some.</p> <p>The common-law rule that the court is without power to bring in additional defendants on the plaintiff’s motion in an action at law has been abolished by section 723 of the Code of Civil Procedure,, which section is not limited to suits ' in equity hut empowers - the court to bring in defendants in common-law .-actions. Hence, a joint tort feasor may be brought in on plaintiff’s motion.</p> <p>Section 452 of the Code of Civil Procedure does not restrict the scope of section 723, the former section applying to equity causes only.</p> <p>Joint tort feasors may be sued separately or together and nothing but the satisfaction of a j udgment against one or more of them, or a release of the causé of' action, will bar an action against the others.</p> <p>A judgment against one or nXore joint tort feasors is not res adjiidicata as between the plaintiff, and other joint tort feasors not made parties.</p>

Appeal by the defendant,. Peter E. Keville, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Kings on the 19tli ’day of April,. 1907, granting a divorce and fixing alimony pursuant to an interlocutory judgment entered in said clerk’s: office on the 26th day of December, 1906, upon the decision of the court rendered after a ■trial at the Kings County Special Term,, and also from the said' interlocutory…

Reargument of an appeal'by the defendant, Charles R. Davis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings oh the 25th day of May, 1906, upon the decision of. the ■ court, rendered .after a trial at the Kings County Special Term, adjudging that the. said defendant is not an heir at law of William H. Davis, .deceased: .

Appeal by the defendants, H. Howard Donglas and others, from a judgment of the Supreme Coiirt in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the.31st day of December, 1906, upon the report of .a referee. . The action is for damages for breach of contract, and the plain-' tiff is the assignee of the claim, the assignor being the Syndicate Petroleum Company.

Appeal by the defendant, Siegmund Spier, 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 March, 1907, upon the decision of tlie .court rendered after a trial at the Kings County Special Term.

<p>Submission of a controversy upon a,n agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, Louis Gold, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 29th day of September, 1905.

Separate appeals by the defendants, The City óf Rew York and the Eastern Bermudez Asphalt 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 14th day of December, 1906, upon the verdict of a jury for $1,800, and also from separate orders entered in said clerk’s office on the 10th day of January, 1907, and on the 13th day of' December, 1906, respectively, denying defendants’…

<p>Village — negligence — defective bridge'— when village not liable.</p> <p>A village is not liable for injuries received by reason of the defective condition ■ of a bridge within its corporate limits, if prior to its- incorporation the bridge was under the exclusive jurisdiction of the town, unless pursuant to sections 143 or 143 of the General Village Law, the village has assumed to repair or . exercise jurisdiction thereover..</p> <p>The rule as to the liability of an incorporated village for. defective bridges, as is-existed under chapter 391 of the Laws of 1870, was not changed by the repeal of that statute on the enactment, of the General Village Law, for the latter substantially re- enacted the provisions of the former statute,- and the decision thereunder are still applicable.</p>

<p>Principal and agent — real estate broker—financial ability of proposed purchaser.</p> <p>Evidence that the proposed purchaser of lands produced by a broker possessed ■ assets consisting of a stock of groceries of a value not shown and a cause of action for §10,000 or §12,000 against third parties for money loaned, but had no funds in his possession, is not sufficient to show his ability to make a ca^h payment of §25,000 on the land.</p>

Appeal by the plaintiff, The Carbonating Apparatus Company, from a judgment of the Municipal Court of the'city of Hew York, borough of Brooklyn, in favor of the defendant,. entered upon the decision of the court after a trial without a jury, dismissing the complaint.

Appeal by the plaintiff, Isaac Janvey, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendants, dismissing the complaint at the close of the plaintiff’s case without prejudice, however, to the commencement of a new action. •

Appeal by defendant, Benjamin H. Knowles, from an order of the Supreme Court, made at the Kings County. Trial Term and entered in the office of the clerk of the. county of Kings on- the 16th day of Hovember, 1906, setting.aside the verdict of a jury in favor of the defendant and granting a new trial of the action.

<p>Eminent domain.-^- street opening in city of New York—assessment of lands not taken.</p> <p>Commissioners in assessing portions of lands not taken on a street opening in the ■ city of New York, which, by virtue of section 980 of the charier, they cannot assess at more than one-half their value “as valued by'them,” may take into consideration the increase in value caused by the opening of the street.</p>

<p>Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Nassau, entered in said Surrogate’s Court on the 24th day of June, 1907.</p>

Appeal by the defendant, The Fibre Conduit Company, 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 19th day of February, 1907, upon the verdict of- a jury for $3,000, and also from an order entered in said clerk’s office on the 26th day of February, 1907, denying the defendant’s, .motion ior .a new trial -made upon the minutes.

<p>Appeal by the defendant, the American Linseed Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 12th day of October, 1906, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 31st day of December, 1906, denying the defendant’s motion - for a new trial made upon the minutes,</p>

<p>Appeal by the plaintiff, Otto W. Wuertz, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant.</p>

Separate appeals by the plaintiff, Elizabeth Keenan, and by the defendants, Ann Duffy Eeilly and others, from a judgment of the Supreme Court in favor of certain others of the defendants, 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, dismissing the complaint.

Appeal by the defendant, Augustus L. Appelles, 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, and also from an order entered in said clerk’s office on the 26th day of November, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Caroline Wolf from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 22d day of December, 1906, settling the accounts of Charles Froelich as' substituted trustee.

Appeal by the defendant, the Empire State Surety 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 18th day of October, 1907, vacating a prior order and resettling interrogatories.

Appeal by the petitioner, Peter Anderson, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 1st day of April, 1907, denying his application to compel an accounting by John Z. Lott, as executor, etc.

Appeal by Franklin. Burt, a judgment creditor, 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 Richmond on .the 9tli day of May, 1907, denying the appellant’s motion for permission to open his default on a. motion made by the petitioner to have certain judgments in favor of the appellant discharged of record.

<p>Sepabate appeals by the defendants, the Village of Peekskill, and by J ames Dimond and another, as assessors, etc., 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 31st day of .August, 1907, denying their motions to dismiss a writ of. certiorari granted to review a certain assessment.</p>

Appeal by the plaintiff, Catherine L. Meeks, as executrix, etc., 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 November, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Municipal Court of the city of Hew Yoi’k, borough of Brooklyn, in favor of the- plaintiff, rendered on the 11th ' day of February, 1907.

Appeal by the defendant, The Supreme Court of the Independent Order of Foresters, from a judgment of the Municipal Court of the city of .Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 29th day of April, 1907. ■ _

Appeal by the defendant, the Rew York City Railway 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 King's on the 25th day of January, 1907, denying its motion for the discontinuance of the above-entitled action.

Appeal by the defendant, the Hew York City Railway 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-26th day of January, 1907, denying its motion for the discontinuance of the above-entitled action.

<p>Mechanic’s lien—notice — when statement of ownership sufficient.</p> <p>In an action to foreclose a mechanic’s lien and set aside a conveyance of the property alleged to have been made with intent to defraud the plaintiff, a notice of lien is sufficient which states that the name of the owner of the real • property, against whose interest therein a lien is claimed, is KF or JM, and that the interest of such owner as far as known to the lienor is in fee.</p> <p>Such statement of the name of the owner is not defective for being in the alter, native, as under the circumstances the plaintiff did not know whether the owner was KF or JM.</p>

Appeal by the plaintiff, Matthew Beattie, from a judgment of the Supreme Court in favor of. the defendants,, entered in the office of the clerk of the county of Suffolk on the 6th day .of December, 1906, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint.

<p>Appeal by the defendant, The City.of Hew York, from a judgment of the Municipal Court' of the city of Hew York, borough of Brooklyn, in favoi* of the plaintiff.</p> <p>This action is by a police clerk in the borough of Richmond against the city for $41.66, the difference between his salary at $2,500 a year and at $2(000 a year for the month of January, 1906,. the plaintiff claiming that his. salary is fixed by the city charter at the former figure, the defendant that it is fixed thereby at the latter . figure.</p>

. Appeal by the plaintiff, Minnie Ida. Dudley > 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 24th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 14th.day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Daniel ITigbie, from a judgment of the , Supreme Court im favor of the defendant, entered in the office of the clerk of the county of Queens on the 30th day of January, 1907, upon the dismissal of the complaint by direction of the court at the opening of the plaintiff’s case upon a trial at the Queens County Trial Term.</p>

<p>Appeal by the defendant, Julius'Minck, from a judgment of the County Court of Kings county, in favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Maryland Casualty Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered upon the verdict of a jury.

<p>Railroad — refusal of transfer — penalty —right to reach destination by circuitous route.</p> <p>A street surface railroad is liable for the penalty prescribed by section 104 of the Railroad Law on its refusal to issue transfers so that a passenger can reach his destination- on the opposite side of a park, although the route requires, him to travel north, west and south.</p> <p>The statute does not limit the right to transfers to travel in one general direction,</p>

Appeal by the plaintiff, George Brand, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of April, 1907, dismissing the complaint.

<p>Will— trust of personal property — when, trust extinguished by release of interest -^-unexecuted power of appointment.</p> <p>A bequest of a residuary estate, consisting wholly of personalty, in trust, for the: benefit of the testator’s wife for life, at her death the income to be divided equally among five children for their lives, with a power to each child to dispose of his share of the principal, which bequest by consent of parties is construed to mean that each child had a power of appointment by will as to the share from which he was entitled to a life income, vests the children, who arc also next of kin, with vested remainders by operation of law on their failure to exercise their power of appointment by will.</p> <p>Hence, when, during the operation of section 3 of chapter 417 of the Laws of 1897 (since repealed) allowing the beneficiary of a trust of personal property to release his interest in the income and terminate the trust, the said children, after the expiration of their mother’s life estate,.mutually released to each other their right to income from the trust and then released to themselves as remaindermen said right to income, the trust is terminated and they become entitled to receive the property.</p> <p>The fact that said children were also beneficiaries of the trust created for their respective lives is no obstacle to their taking vested remainders limited upon the trust estate; nor does the existence of an unexecuted power of appointment interfere with -the vesting of the remainders.</p> <p>Under the circumstances it is immaterial that the remainders were not created by will, but vested by operation of law.</p> <p>Although by the exercise of their power of appointment the remaindermen might divest themselves of their remainders acquired by operation of law, yet by their mutual releases of the income to themselves as remaindermen, their power of disposition was merged in the greater estate so acquired.</p>

Appeal by the plaintiff, George Wallace, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 6th day qf December, 1906, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint upon the merits. Judgment affirmed, with costs, on the opinion of Mr. Justice Garbetson at Special Term.

Appeal by the defendant, Pierre Oalvet Rogniat, from a judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of Few York on the 17th day of June, 1907, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing'the said defendant’s counterclaim upon the merits, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 18th day of…

Appeal by the defendant, the Yates & Porterfield Trading Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Héw York on the 15th day of May, 1907, upon the decision of the court, rendered after, a trial at the Hew York Special Term, overruling the said defendant’s demurrer to the complaint.'

Appeal by the defendant, Patrick B. Egan, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county, of Mew York on the 24th day of April, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1907, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Commercial Twine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day of April, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 17th day of April, 1907, denying the defendant’s motion for a new .trial made upon the minutes.</p>

<p>Appeal by the defendant, the Banker 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 Blew York on the 29th .day of December, 1906, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 17th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Attorney disbarred.</p> <p>Attorney disbarred for receiving money to procure the pardon of one imprisoned for crime and failing to return the same as promised when unsuccessful.</p> <p>Laughlin, J., dissented, with opinion.</p>

Appeal by the plaintiff, Louis Merolla, 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 16th day of April,' 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 plaintiff, Matilda L. Bernzott, 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 31st day of October, 1907, denying the plaintiff’s application for a final judgment annulling her marriage with the defendant.</p>

- Appeal by the plaintiffs, Quayle W. Hawkes and another, from an order oí the Supreme Co.urt, made at the Hew York Special Term and entered in the office oí the clerk, of the county of Hew York on the' 18th day of June, 1907, denying the 23laintiffs’ motion to set aside an order dismissing the complaint herein upon the ground that said order was entered after the death of one of the 23laintiffs.' .

•Appeal by the defendant, Frieda Hart, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of Hovember, 1906, upon the decision of the court rendered after a trial at the Hew York Special Term, overruling defendant’s demurrer to the amended complaint.

<p>Negligence—fall down elevator shaft — contributory negligence of deceased.</p> <p>Evidence in an action against the proprietor of a hotel to recover for the death of a patron who fell down an elevator shaft examined and held that the deceased ■was guilty of contributory negligence which barred a recovery.</p> <p>LaughliNj J,, dissented.-</p>

Appeal by the plaintiff, the City Real Estate Company, and. by the defendant, Martha K. King, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of July, 1907, granting the motion of the defendant, William F. King, to strike out certain allegations of the complaint as irrelevant and redundant. -

Motion by the plaintiff, The Delaware Trust Company, for a new trial -upon a case epntaitiing exceptions ordered to. be heard at the Appellate Division in the first instance upon the dismissal of the complaint by the direction of the court after a trial at the Hew York Trial Term in February, 1907.

<p>Appeal by the defendant, the Union Railway Company of New York City, 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 16th day of February, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 27th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Crime — perjury — false oath on. qualification of bail.</p> <p>A surety on a bail bond who falsely states in his affidavit of qualification and on his examination under oath before the magistrate that he owns specific real estate of a certain value is guilty of perjury.</p> <p>The sufficiency of a surety is a subject of judicial inquiry and the false state.ments aforesaid are material to the issue.</p>

Appeal by the plaintiff, Meier Brauner, as administrator, etc., from a judgment of the Supreme Court-in favor of the defendant, entered i-n the office of the clerk of the county of New York on the 1st day of March, 1907, upon the dismissal of the complaint by direction of the court at the close of-the plaintiff’s case on atrial at' the New York Trial Term, 'and also from an order entered in said clerk’s office on the 4tli day of March, 1907, denying the plaintiff’s motion…

<p>Will — direction that executors continue partnership business—when life beneficiary entitled to partnership profits — beneficiary appointed trustee — trust not invalidated.</p> <p>When a will directs executors to leave or invest for a specific number of years á specific’ sum in a partnership - of which the testator had been a member, provided the- surviving partners agree to pay interest thereon to the estate at six per cent, and in addition-the sum of $10,000 annually for the good will of the business, with a gift of. the residuary estate “inclusive of my said interest and capital in said firm” to the testator’s wife for life-With remainder to others; and the executors enter into a contract with the firm pursuant to such direction, which contract entitles the executors,' as partners, to a percentage of the net profits, the life beneficiary is entitled to said profits as income, and thdy should not be treated as principal forming part of the remainder.</p> <p>Assuming that the life beneficiary, being entitled to the whole income, was not qualified to act as trustee, neither the trust itself nor the contract executed thereunder was invalidated, for the will expressly authorized the beneficiary to act as trustee, and in any event the coexecutor had authority to make the contract.</p>

<p>Equity — power to annul fraudulent judgment and enjoin use of evidence — adequate remedy at law — landlord and tenant — summary proceedings — petition insufficient ^ service of process! ■</p> <p>Courts of equity have jurisdiction to cancel judgments, orders or decrees, or enjoin their enforcement in whole or in part, for fraud; but this jurisdiction will be exercised only in cases of necessity and where there is no adequate remedy at law. "</p> <p>Equity has jurisdiction to enjoin the introduction, in an action at law, of evidence obtained by fraud or duress.</p> <p>But a suit in equity to have a final order in summary proceedings declared void and to enjoin its use as evidence to establish the relation of landlord and tenant in another' action will not lie when said order is void for jurisdictional defects. As advantage may be .taken ‘of jurisdictional defects when the final order is offered in evidence, there is no need for equitable relief.</p> <p>As a Justice’s Court is of inferior jurisdiction every jurisdictional fact essential to support its final order in summary proceedings must be shown by the record and may neither be supplied nor presumed to exist. .</p> <p>A petition'in summary proceedings to oust a tenant which merely describes the interest of the petitioner in the premises by stating that he. is the “landlord” and “leased” the premises, fails to meet the requirements of section 2235 of the Code of Civil Procedure, is insufficient to give a Justicels Court j urisdiction, and renders all proceedings taken null and void.</p> <p>The return of a constable who served the process in such proceeding by affixing it to the property, as permitted under certain circumstances by subdivision 3 of section 2240 of the Code of Civil Procedure, is insufficient to give the. justice jurisdiction if it fails to show that service could not be made personally or upon a person residing on the premises as prescribed in subdivisions 1 and 2 of said section.</p>

<p>Appeal by the plaintiff, Annie Shields, as administratrix, etc., 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 8th day of April, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, in so far as said judgment is in favor of the defendant, Paul B. Pugh & Co.</p>

Appeal by the defendant, the Metropolitan Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of March, 1907, upon the verdict of a.jury for $1,000, and also from an order entered in said clerk’s office on the 22d day of March, 1907, denying' the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Jordan L. Mott IronWorks, 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 21st day of March, 1907, upon the verdict of a jury for $7,'000, and also from' ah order entered in said clerk’s office on the 25th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.,

Appeal by Thomas II. O’Connor, the surety on the bond of Frederic Grant as temporary administrator,, etc., from a decree of the Sdrrogate’s Court of the county- of New York, entered in said' Surrogate’s Court on the 22d day of May, 1907, denying the appellant’s motion to refer back the account of said temporary administrator to a referee to whom it was originally referred.

Appeal by Rosie Matthews, a legatee, from certain parts of a decree of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 5 th day of'August, 1907, directing the distribution of the estate of Sarah Waters, deceased.

Appeal by the plaintiff, the United States Casualty Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in. the office of the clerk of the county .of Hew York on the 3d day of June, 1907, granting, the defendant’s motion for a bill of particulars.

Appeal by the defendant, W. & J. Sloane, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of August, 1907, as resettled by an order entered on the'23d day of August, 1907, as relieves the plaintiff from a certain stipulation and directs said defendant to pay into court an amount sufficient to cover the plaintiff’s alleged lien.

<p>Appeal by the defendant, W. &■ J. Sloane, 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 August, 1907, as resettled by an order entered in said clerk’s office on the 23d day of August, 1907.</p>

<p>Stay — failure to pay costs of prior action.</p> <p>When a complaint has been dismissed, with costs, for failure to appear, and the default has not been opened nor the costs paid, the defendant is entitled to stay the prosecution of a second action until the costs of the prior fiction are paid.</p> <p>It is no answer to a motion for such stay that the plaintiff, who has not been permitted to prosecute as a poor person, is financially unable to pay the prior costs.</p> <p>The rule that where the costs of a motion in an action are directed to be paid ■ all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the court until payment (Code Civ. Proc. § 779), applies to* the payment of costs of an action where another action is commenced between the same parties to recover upon the same cause.</p>

<p>Corporation — examination of stock book of foreign corporation—ulterior purpose — mandamus denied.</p> <p>Even though it be assumed that section 53 of the Stock Corporation Law entitles a stockholder of a foreign corporation to make'extracts from its stock book, a peremptory writ of mandamus to compel the corporation to grant that right will be denied when it affirmatively appears that the applicant desires to make the extracts for an ulterior purpose in no way connected with his interest in the corporation or its management. Thus it will be denied where he desires a complete list of the stockholders merely to send out circulars offering to sell stock of other corporations, and offering to negotiate loans to stockholders upon their stock as collateral security, etc.</p> <p>There is no express provision of law authorizing the issuance of the writ of mandamus to enforce the provisions of section 53 of the Stock Corporation Law, and the granting of such writ lies in the sound discretion of the court.</p> <p>Houghton, J., dissented.</p>

Appeal by the plaintiff, The Wilson and Baillie Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk 6f the county of Hew York on the 22d day of April, 1907, pursuant to an order entered in said clerk’s office on the 5th day of April, 1907, and also from the said order upon which the judgment appealed from was entered.

Appeal by the plaintiff, Frank L. Tierney, 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 24th day of November, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of November,-1906, denying.the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Max J. Roth, 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 26th day of' February, 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, the Hew York City-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 Hew York on the 16th day of February, 1907, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 8tli day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The N ational Park Bank of Hew Y orle, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of June, 1907;, granting a peremptory writ of mandamus commanding the defendant to permit the relator to- have undisturbed inspection of the stock book of the defendant.

Appeal by the defendant, the New York Contracting Company — Bennsylyania Terminal, 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, directing the defendant, through its secretary, to answer certain questions propounded upon an examination before trial.

<p>Railroad — negligence — collision between surface car and wagon — erroneous nonsuit.</p> <p>The plaintiff, driving southerly upon the north-bound track of the defendant at . night when the city streets were frozen and. slippery, was struck and injured by a car coming from the south as he was about to leave the track. The wagon was lighted and the car moving at the rate of eight miles per hour. On all the evidence</p> <p>Meld, that a nonsuit was error, the defendant’s negligence apd the plaintiff’s contributory negligence being questions for the jury.</p>

Appeal by the plaintiff, the Guardian Trust Company of Hew Yoik, from a judgment of the Supreme Court in .favor of the defendant, -entered in the office of the clerk of the county of Hew York on the 7th day of March, 1907, upon the-report of a referee dismissing the complaint .upon the merits.

Appeal by the defendant, the Guardian Trust Company of New York, 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 1st day of March, 1907, upon the report of <a referee, awarding the plaintiffs possession of certain certificates of stock, pledged by them to defendant as collateral security, and dismissing, the first counterclaim set up in defendant’s amended answer.

Appeal by the plaintiff, Marion Sturgis, from a judgment of the Supreme Court in favor of the defendant* entered in the office of the cleric of the county of New York on the 21st day of March, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of March, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

Motion by the defendant, The Emigrant Industrial Savings Bank, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the 'first instance upon the verdict of a jury in favor of tiie plaintiff, rendered by direction of the court after a trial at the Hew York Trial Term in April, 1907.

Appeal by the plaintiff, Gr. Erl win Jones, from a judgment of the Supreme Court, in'favor of the deféndant, entered in the office of the cleric of the county of Hew York on the 17th day of June, 19Ó7, upon an order entered, on the 14th day of -June, 1907, .dismissing the complaint because of the failure of the, plaintiff to give an undertaking increasing the security given by him upon procun inga warrant of attachment against'thedefendan.t, with notice of an. intention to…

Appeal .by the jfiaintiff, William C. Stemmerman, from an interlocutory 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 20th day of August, 1907, up.on the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiffs demurrer to the second, third and sixth sepárate defenses contained in the defendant’s' amended answer.

Appeal by the defendant, the Lenox Construction 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 11th day of May, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s.office on the 10th day of May, 1907, denying the defendant’s motion for a, new trial made upon the minutes.

Appeal by the plaintiff, Nathan Dallin, 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 19th day: of June, 1907, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial.

<p>Appeal by the defendant, the Pelton Water Wheel Company, from a judgment of the Supreme Court; in favor of the .plaintiff, entered in the office of the clerk of the county of Hew York on the 7th day of February, 1907, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 6th day of February, 1907,. granting the plaintiff an extra allowance of costs.</p>

Appeal by the plaintiff, Samuel Ettlinger, as administrator, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of October, 1901, denying the plaintiff’s motion to settle the issues to be tried by a jury.

Appeal by the defendant, Leo Feist, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 27th day of May, 1907, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the amended complaint.

Appeal by the defendants, Mahlon Alan Sands and another, from parts of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Hew York on the 8th day of February, 1907, upon the report of a referee.

<p>Appeal by the defendant, John Laughlin, 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 4th day of October, 1907.</p>

Appeal by the defendants, John J. Tobin 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 16th day of March, 1907, upon the verdict of a jury for' $1,500, and also from an order entered in said clerk’s office on the 20th day of March, 1907, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Codwell J. Eaton, from a judgment of, the Court of General Sessions of the Peace in and for the cotinty of Hew York, rendered on the 29th day of April, 1967, convicting the defendant of the crime of grand larceny in the second degree,- and also from two orders entered on the 29th day of April, 1907, respectively denying the defendant’s motions for a new trial and in arrest of judgment.

Appeal by the defendant, the New York Contracting Company, Pennsylvania Terminal, 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 22d day of January, 1907, upon the verdict of a jury for $7,500, and also from . an order entered in said clerk’s office on the 21st day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Henry A. Boot, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 12th day of Hovember, 1907, denying the defendant’s motion to vacate an order for his examination before trial.

Appeal by the defendant, the New York City 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 28th day of March, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 2d day of April, 1907^-denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Leo Strauss, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of Hovember, 1907, denying the ■ defendant’s motion to vacate an order of arrest theretofore entered herein.

Appeal by the-plaintiff, James Gr. Shaw, from parts of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew Y°i’k on'the 29th day of October, 1907, denying the plaintiff’s motion to restrain the sheriff of Hew York county from releasing certain bonds from the levy of an attachment except upon the plaintiff’s giving an undertaking.

Appeal by the defendant, Henry C. M- Ingraham, as executor, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of Hovember, 1907, granting the plaintiff’s-motion to revive this.action against said defendant as executor

Appeal bytlie defendant, Thomas Holahan, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of August, 1907, denying the defendant’s motion to change the place of trial from the county of Hew York to. the county of Monroe. ' ; ■

Appeal by The O. J. Gude Company, N. Y., owner of a certain sky sign, from an order of the Supreme Court, made at tile 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, directing the removal of said sign.

<p>Appeal by the defendant, the M. Wineburgh Advertising Company, from an order of the Supreme Court, made at the-New York ’ Special Term and entered in the office of the clerk of the county of New York on the 16th day of September,' 1907, granting the plaintiff’s motion to continue a temporary injunction pendente lite.</p> <p>This is an action in equity by the City of New York to restrain the construction by defendant of what,is denominated as a “sky sign,” erected upon the roof of a building in the city, and to compel the removal of so much of said sign as has already been erected. The defendant is a domestic corporation engaged in constructing and maintaining advertising signs. .The sign, the- erection of which is sought to be restrained, stands upon the roof of a modern fireproof brick and steel building, with a steel roof. The building fronts on East Twenty-second street and éxtends north to about the middle of the block between Twenty-second - and Twenty-third streets. The defendant has invested a very large amount of money in signs and leases of roof privileges, and has leased from the owner of the premises above described the privilege of erecting said sign thereon, agreeing to pay the rental of $400 per annum, and holds a contract from which it can realize about $400 per month from the use^of said sign. The sign is what is termed a skeleton sign, composed of angle irons, and is firmly bolted and clamped to the roof of the building. It is forty-four feet long and fifteen feet high, the bottom being five feet six inches above thé roof of the building. The front wall or .cornice of the building rises nine feet six inches above the roof, so that when completed the top of the sign will rise twentyrone feet and six inches above the roof, and eleven feet above the fro'nt wall or cornice. The sign extends from the rear wall of the building at the east end diagonally across the roof, being at its,nearest point about forty or fifty feet back of said front wall or cornice. The defendant is charged witli violating sections 4 and .144 of the‘Building Code of the city of New York.</p> <p>Section 4 of that Code provides that “before the erection, construction or alteration of any building or part of any building, structure or part of any structure, or wall,” the owner, or lessee, or agent of either, or the architect or builder employed by said owner or lessee shall file plans and specifications of the proposed work, and it is further "provided that such work shall not be commenced or proceeded with until the plans and specifications so filed have been approved by the commissioner of buildings, after which such work must be .constructed in accordance with said plans and specifications, and it is made the duty of the commissioner of buildings to approve or reject any plan filed with him within a reasonable time.</p> <p>Section 144 provides in part as follows: “ Any letter, word-, model sign, device or representation in the nature.of an advertisement, announcement or direction, supported or attached, wholly or in part, over or above any wall, building or structure, shall be deemed to be a ‘ sky sign.’</p> <p>“ Sky signs shall be constructed entirely of metal, including the uprights, supports and braces for same,, and shall not he at any point over nine feet above the front wall or cornice of the building or structure^ to winch they are attached, or by which they are supported.</p> <p>“ All fences, signs, bill-boards-and sky signs shall be erected entirely within the -building line, and be properly secured, supported and braced, and shall be so constructed as not to.be or become dangerous.</p> <p>•“ Before tbe erection of any fence, sign, bill-board or sky sign shall have been commenced, a permit for the erection of the same shall be obtained from the superintendent of buildings having jurisdiction, as provided in part 2, section 4, of this Code.”</p> <p>■ The defendant in June, 1907,-filed with the superintendent of buildings specifications and plans for the erection of a sky sign upon the building, upon which it is now proceeding to. erect a sign; these plans and specifications indicated that it was intended to erect a sign nine feet high and fifty feet long, so that at ho point should,-said sign be over nine feet above the front wall or Cornice of said building. These plans and specifications were thereupon approved by said superintendent, and a permit issued for the erection of said sign in accordance with the plans and specifications thus filed and approved.</p>

Appeal by the plaintiff, The Kobbe Company, from certain parts of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 15th day of August, 1997, denying the plaintiffs motion for an injunction pendente lite restraining the defendant from interfering with the construction by the plaintiff of an electric sign upon the roof of certain premises in the city of New York and granting the defendant’s…

<p>Landlord and tenant — covenant against assignment — sub-lease and assignment distinguished. ,</p> <p>The essential distinction between a sub-lease and an assignment lies in the extent to which the original lessee'has parted with his interest. If he parts with his entire, interest, it is an assignment; if he retains a reversion to himself, it is a sub-lease. It is immaterial' in what form the instrument be drawn..</p> <p>When a lease for a term of years is to commence and end at noon on specified dates, and contains a covenant not to assign without the lessor’s consent, with a right of re-entry for breach thereof, and the lessee before the commencement of his term, without the consent of the lessor, leases the premises to another person for the same term at the same rent by an instrument which, except for the date and names of parties, is a precise copy of the former lease, the second lease is in effect an assignment, and there is a breach of covenant, although the second lessee is to surrender to his lessor on the last day of the term, and the latter may re-enter on condition broken.</p> <p>The provision for surrender is not a reservation of any interest by the first lessee sufficient to make the instrument a sub-lease, because, at the end of the term, the only surrender possible will be to the original lessor, his lessee’s term having then expired.</p> <p>Although a tenant on conveying the whole term reserves a right of re-entry for condition broken, it is not a reservation of any reversion in the term or interest in the land sufficient to make the instrument a sub-lease rather than an assignment, but gives merely a chose in action in case of breach of covenant.</p> <p>Ingbaham, J., dissented, with opinion.</p>

<p>Membership corporation — election of officers when notice not necessary — percentage constituting quorum.</p> <p>When the by-laws of a domestic membership corporation do not require notice of the election of officers, an election held at the regular time and place set by the by-laws is not invalid by reason of a failure to give notice. '</p> <p>A corporation duly organized under the Membership Corporations Law with by-laws governing the number of members necessary to constitute a quorum which are inconsistent, cannot invoke the common-law rule that "the number of members present and voting at any regular meeting constitute a quorum and a majority is sufficient to elect. Such corporation is governed by section S of the Membership Corporations Law, providing that a quorum shall consist of not less than one-third of the members, and if one-third be nine or more, then not less than nine; and when there are 1,200 members entitled to vote, an election of officers at a meeting at which only twenty members were present will be set aside.</p> <p>In ordering a new election the court should require members to be notified that a receiver formerly in charge of the affairs of the corporation has been discharged. ,</p>

Appeal by the defendant, the New York and Queens County 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 oh the 20th day of May, 1907, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 21st day of May, 1907, denying the defendant’s, motion for a new trial made upon the minutes.

Appeal by the plaintiff, Gottfried Schneider, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Yew York on the 29th day of June, 1907, upon the decision of the court rendered after a trial at the Yew York Special Term in an action of interpleader upon a counterclaim.

Appeal by the defendants,. William F. White and another, 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 Y orle on the 1st day of July, 1907, denying the defendants’ motion to set aside a levy under a warrant of attachment.

Appeal by the defendant, Arthur C. Schweig, 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 31st day of May, 1907.

Appeal by the defendant, Arthur C. Schweig,- 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 4th day of October, 1907.

Appeal by the relator, Nathan April, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1907, denying his motion for a writ of mandamus requiring the defendant to reinstate the relator as inspector of tenements, and also from an order entered in said clerk’s office on the 11th day of March, 1907, denying the relator’s motion for leave to renew.

Appeal by the plaintiff, Clifford L. Miller, 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 18th day of October, 1907, denying the plaintiff’s motion to be permitted to produce on settlement of the proposed' case on appeal the Us pendens-filed in said clerk’s office on March 6, 1902, in this action, and directing said Us pendens to be marked as an exhibit, and. striking out a…

Appeal by the defendant, Charles Head Smith, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of July, 1907, denying the defendant’s motion to vacate ah order for his examination before trial.

<p>Sale — delivery to sell on commission.</p> <p>A delivery of goods to an agent to sell upon commission, the proceeds tobe credited on notes of the principal held by the agent, is not a sale to the agent, and "will not support an action to recoveras for a sale and delivery of goods.</p>

<p>Will — direction to apply income to support of children — allowance question for surrogate — guardian and ward — support of ward.</p> <p>A direction to executors to hold property in trust for the testator’s minor children, “applying from each share so much as may be necessary for the support, .maintenance and education of each of my children,” does not give the trustees discretion as to the amount to be allowed for the support and maintenance, but that question is one to be judicially* determined by the surrogate.</p> <p>When the net income of each child is over §4,000 a year and they are sickly, require expensive medical treatment, and must contribute to the household expenses, an allowance of §2,000 to the guardian annually for the- support and maintenance of each child is not excessive.</p>

<p>Appeal by the defendant, Fred Gasau, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 28th day of - January, 1907, affirming a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, in favor of the plaintiff, rendered on the 20tli day of September, 1906, imposing a penalty for a violation of article 11 of the Public Health Law (Laws of 1893, chap. 661, as amd. by Laws of 1900, chap. 667).</p>

<p>Appeal by the claimant, The Selma National Bank, 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 loth day of April, 1907, overruling the appellant’s exceptions to the determination by a referee of certain disputed claims and denying-its motion to set aside the report of the said referee.</p>

<p>Appeal by the defendant, the Union Railway Company of Hew York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of January, 1907, upon tiie verdict of a jury for $2,500, and also from an order entered in said clerk’s office on tlie 13th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal, by the plaintiff, Benjamin Stern, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rew York on the 30th day of January, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Re\y York Trial Temí,</p>

<p>Appeal by the plaintiffs, St. John Wood and others, composing the firm of J. E. Wood & Sons, 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 21st day of January, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of February, 1907, denying the plaintiffs’ motion for a new trial made upon the minutes.</p>

<p>Submission of a controversy upon an agreed statement of facts pursuant'to section 1279 of tlie Code of Civil Procedure.</p>

Motion by the defendant, Arthur L. Meyer, for a new trial upon a case containing exceptions ordered to be heard at the' Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court at the New York Trial Term in March, 1907.

Appeal by the defendant, Eugene Christian, from a judgment of the Court of Special Sessions of the first division of. the: city of New York, rendered on the.4th day of April,. 190.7, convicting the defendant of the crime of unlawfully practicing medicine.*

Appeal by the 'defendant,.Clarence D. Simpson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 8th day of March, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of March,.1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James C. Crawford, from a judgment of the Supreme Court in favpr of the defendant, entered in the office of the clerk of the county of New York on the 6th day of July, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Samuel Bell-Thomas, -as trustee, etc., 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 14th' day of Hay, 1907, dismissing the compláint upon the opening, and also from an order entered in said clerk’s office on the 14th day of May, 1907, denying the plaintiff’s motion to set aside such dismissal.

<p>Principal and agent — power of attorney construed — ratification of sale by agent.</p> <p>When an instrument authorizes an attorney in fact to grant and convey any and all real estate belonging to the principal in certain counties on such terfns as he shall deem best, and to execute conveyances and mortgage the principal’s real estate now owned and hereafter acquired, etc., without limitation as to time,, and the attorney having purchased lands for his principal reconveys them, the purchaser gets a good title, if the principal received the lands without objec-. tion and has not revoked the power or disputed her attorney’s right to reconvey. Under such circumstances the principal must be held to have ratified her attorney’s act and to be estopped from questioning his authority.'</p>

Appeal by the defendants, Robert McCormick 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 Suffolk on the 20th day of February, 1907, upon the decision of the court rendered after a trial at the Suffolk Special Term.

<p>Town — negligence — highways — collision with telephone pole at roadside— facts not showing negligence — proximate cause.</p> <p>Subject to reasonable, regulation by the highway commissioners, telephone companies may erect poles on the highway, and they are not a nuisance per se.</p> <p>One driving a vehicle on a stormy night who, in order to avoid an approaching automobile, pulls out of the road, with which he was perfectly familiar, and collides with a telephone pole which was set with other poles in line with the guardrail of a bridge and from one to twenty inches from the traveled portion of the highway, leaving a roadbed over nineteen feet wide at the place of the collision, cannot recover from the town for injuries received on the theory that the highway commissioners were negligent in allowing the poles to be so placed.</p> <p>The proximate cause of the accident was not the placing of the telephone poles, but the act of the automobile in forcing the plaintiff out of his course.</p>

Certiorari issued out of the Supreme Court and attested on the l'6th day of April, .1907, directed tó John ¡N. Bogart, commissioner of licenses of the city of ¡New York, commanding him. to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in relation to the revocation of the license of Amalia Pechtold, as the keeper of an employment agency.

Appeal by the defendant, Viola T. Tietzel, 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 16th day of October, 1907, denying the defendant’s motion that the issue of adultery raised by the pleadings herein be tried by a W-

Appeal by the plaintifE, Joseph Kaplan, from a judgment of the County Court of Kings: county, in favor of the defendants, entered in the office of the clerk of said county on the 1st day of April, 1907, upon the decision of the court, a jury having been waived, •dismissing the complaint upon the merits.

Appeal by the defendant, Michael, J. Flaherty, sheriff of Kings county, 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 30th day of April, 1907.

Appeal by the defendant, the State Line Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of February, 1907, upon the report of a referee.

Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 27th day of April, 1907.

<p>Appeal from a judgment entered on the 28th day of December, 1906, upon the verdict of a jury in favor of the plaintiff and from an order entered on the 24th day of Decembei-, 1906, denying a motion for a new trial.</p>

Appeal from orders, respectively, granting motions to continue a temporary injunction, and to amend the injunction order, and denying a motion to vacate the injunction,

<p>Evidence—examination before trial — discovery of books and papers.</p>

<p>Appeal from an" order entered on the 15th day of August; 1907, denying the defendant’s motion for.a new trial made upon newly-discovered evidence.</p>

<p>Evidence — interrogatories settled.</p>

<p>Appeal by Fred 0. Laurent from an order made at the Fulton Special Term, and entered in the office of the clerk of Fulton county on the 13th day of May, 1907, denying his application to vacate an order adjudging him guilty of a contempt of court and imposing a fine upon him.</p>

<p>Appeal by the defendant from an order entered in the office of the clerk of the county of Kings on the 19th day of September, 1907.</p>

<p>Judgment and order affirmed, with costs.</p>