Volume 123 — New York Appellate Division Reports

<p>Real property — contract to sell — Statute of Frauds available to vendor only.</p> <p>A vendee of lands cannot recover earnest money paid upon the ground that the co'ntract was not enforcible under the Statute of Frauds because not signed by him. The vendor only can raise the question of the Statute of Frauds, and the vendee is bound after tender by the vendor even though the contract be oral.</p>

Appeal by Jacob Kempf and another,.by their general guardian, and another, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 9th day of April, 1907, settling- the accounts of Anton Popp, as executor, as allows the said executor extra compensation for continuing the business of the testator as directed by the will, and working therein.

<p>Motion by the plaintiff, Sadie Brennan, for an amendment of an order of the Appellate Division of the Supreme Court, reversing a judgment theretofore entered in her favor, and an order denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Edgar Lehman* from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 8th day of April, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, overruling the defendant’s demurrer to^ the complaint. The complaint is- by seller against purchaser for the specific performance of a contract for the purchase of real estate.

<p>Trial — waiver of jury—complaint not dismissed because cause on equity calendar.</p> <p>Unless a jury trial is claimed before evidence is received, the right is waived.</p> <p>A complaint that, states a cause of action, legal or equitable, cannot be dismissed on its face because placed on the .wrong calendar.</p>

Appeal by the defendant, Alexander Hawkins, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the -clerk of the county of Suffolk on the 2d day of November, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Suffolk Trial Term.'

Appeal, by the defendants, Carleton Bainbridge and others, from a judgment.of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 17th day of January, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term. Charles- T. Bainbridge died in the year 1880. He was engaged with another in the business of manufacturing paper, goods.

<p>Corporation — payment of stock subscription by promissory note — consideration illegal — entire contract — effect of illegality of part- of consideration.</p> <p>The giving of a promissory note for the purchase price of an original issue of stock is not equivalent to the cash payment of ten per cent required by section 41 of the Stock Corporation Law, and. in an action by the corporation to recover against the maker on his failure to pay, a verdict for the defendant should be directed.</p> <p>A failure to pay ten per cent cash upon an original stock subscription, as required by section 41 of the Stock Corporation Law, makes the subscription invalid and not binding upon the subscriber, for in this State the statute governs such contract, not common-law principles.</p> <p>When a contract is entire an illegality as to part of the consideration renders the whole void. Hence, although a contract, in consideration of which the defendant gave his promissory note in payment for an original issue of preferred stock, also provided for the employment of the defendant at a salary and a percentage of profits and entitled him to a bonus of a hundred per cent of the common stock, there.can be no recovery on the note, such contract being entire and part of the consideration illegal.</p> <p>Discretion of trial court in granting extra allowance affirmed.</p> <p>Hooker, J., dissented as to extra allowance.</p>

<p>Appeal by the plaintiff, Hapgoods, from an order of the Supreme Court, entered in the office of the cleric of the county of Kings on the 5th day of June, T907, denying the plaintiff’s motion to set aside a judgment in favor of the defendant on the ground that the verdict upon which the same was entered was the result of a mistrial.</p>

<p>Appeal by the plaiiitiff, Frank Blair, from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens' on the 20th day of ’ March, 1907, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a hew trial.</p> <p>The record shows the following: “In the examination of the talesmen, [counsel for plaintiff] asked the following question: Q. Are any of the jurors officers or stockholders in the Travelers’ Insurance Company ? [Counsel for defendant] : If the Court please, in the course of the examination of the talesmen, counsel for the plaintiff asked the question, which the stenographer has taken down there, and I object to that question and ask that the jury be discharged ' from the consideration of this case, and that this panel be discharged from the consideration of this case on the ground that it is an improper question to ask, and on the ground that it injected a matter into the case — The Court: You object first to the question, and the objection is sustained, [Exception by plaintiff.] The Court: What is your further motion — renew your motion. • [Counsel for defendant] : And I move to have this panel discharged from the consideration of this case on the ground that tlie suggestion lias been made, and is bound to be in their minds. The Court: The motion is denied on the ground that' great public inconvenience'would result. [Exception to defendant.] [Counsel for defendant] : My motion applies to those who are in the hearing of the question. The Court (addressing jury): Gentlemen, counsel seems to appre- ■ bend that mention of the Travelers’ Insurance Company may in some way prejudice your minds, and prejudice the defendant’s case. Mow, the Court charges you that lias no bearing in this case whatever— any mention of an insurance company should not have any influence in your minds at all, whether the Travelers’ Insurance or the Equitable Life Insurance Company, or any other insurance company — no consequence whatever in this case; should not inflnencé you in the least,- or any juror in the room. You may proceed with the examination. [Counsel for plaintiff] : I wish to ask the jurors if any of them are stockholders or officers of any casualty insurance company. " [Counsel for defendant] : I think in view of the question directed to a particular corporation, following that up with that, I think this case should be withdrawn from this panel, especially in view of the Court’s remarks that the question of any insurance company has nothing to do with this case. [Objection overruled; exception.] [Counsel for plaintiff] : Mow, gentlemen, will you please answer my 'question : Are any of you officers or stockholders in any casualty insurance company? (Mo response from jury.) ” - •</p> <p>The jury thereafter found a verdict for the plaintiff which, upon motion, the court thereafter set aside. It is apparent from • the opinion handed down by the learned court that the order was based upon the incident of the examination set forth.</p>

Appeal by the defendant, The Nassau Electric Railroad Company,from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 11th day of January, 1907.

Appeal by the plaintiff, Lavinia Lally, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 26th day of September, 1906.

Appeal by the plaintiff, Samuel Farber, from a judgment of the County Court of ¡Nassau county in favor of the defendant, entered in the office of the clerk of said county 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, and also from an order entered in said clerk’s office on the 15th day of March, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal.by the plaintiff, Boyd Thistle,.from a judgment .of the .County Court of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 8th day of December, 1906, upon the dismissal of the. complaint by direction of the court, with notice of an intention to bring up for review upon su'ch appeal an interlocutory judgment entered in said .clerk’s office on the 23d day of November, 1904, Overruling the plaintiff’s demurrer to a defense…

<p>Appeal by the defendant, Oswin J. Mills, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.</p>

Appeal by the plaintiffs, Byron Wolverton and. others, from a judgment of the Municipal Court of the city of ¡New York, borough of Brooklyn, in favor of the defendant, rendered on the 24th day of October, 1906.

<p>Appeal by. the defendants, John 0. Fry and another, as executors, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of May, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term, directing the defendants as executors to account to the plaintiff for their acts in regard to all money or other property received by their testator under a Certain instrument bearing date the 18th day of July, 1879, and appointing a referee to take such account.</p> <p>This case has been on appeal here before, but the merits were not decided (116 App. Div. 740).</p> <p>John and William Fry came to this country from England in or about 1860, and resided here thereafter. William died in 1878, and his will was probated in New York county, in this State, where he resided, in the same year. They left behind them in England three sisters, Sarah (who became Mrs. Billett), Mary (who became Mrs. Purkess), and Rhoda; also another sister, who did not survive William, and a brother James. The family was in ordinary life and without property of any amount. William accumulated a,considerable fortune in this country. He left a legacy to each of his said brothers and sisters, viz., $50,000 to his brother John, $25,000 to his brother James, $25,000 to his sister Sarah, $12,000 to his sister Rhoda and $12,000 to his sister Mary; and $25,000 to his cousin Herbert Fry, who also lived in England. He also created a trust of $10,000 in .his executors as trustees to pay the interest thereon to his uncle John Billett for life. He gave the “ residue and remainder ” of his estate to his said brothers and sisters and cdusin Herbert, share and share alike. He then in a separate bequest gave the said principal of $10,000 of the said uncle Billett trust to his said “ residuary legatees e., his said brothers and sisters and cousin, on the expiration of the trust. He appointed his said brother John (with him in this country) and seven other persons his executors. Several of them acted as such with the brother John, the precise number not appearing.</p> <p>This suit is by the ancillary administrator of Mary’s estate to set aside a deed of gift by her to. her said brother John, while he was acting as executor, of part of her share under the said will of William, and for an accounting. John died on October 29th, 1894, a resident of Brooklyn, U; Y., and letters testamentary were issued to his executors in Kings county. Mary died intestate on December 19th, 1897, letters of administration,-were granted in England to her'husband, Mr. Purkess, and ancillary letters were granted thereon in Kings county. . The said executors of John (who are his two sons) are the defendants.</p> <p>1. John sent a draft for the said legacy of $12,000 to his sister Mary in England on or about May 20tli; 1879, oh the return to him by Mary of. the receipt for it dated May 5th, 1879, which he had sent to her to sign in advance of payment; and- at the same time he paid the said legacies to his said other two sisters and his brother James and cousin Herbert in the same way.</p> <p>2. On June 12th, 1879, Mary wrote a letter to John from Southampton in which she, returned to him the receipts of herself and her said two sisters for $25,000 each out of the residuary, dated June 6th, 1879, the same having been sent to them by John to be signed and returned in advance of the payments. In that letter -she wrote : If there should be anything more, after tips to come to me I should like you to- keep it out there and invest it for yóürself or the children,” i. e., his children.</p> <p>3. After receiving, this letter John wrote a letter to the three gisters, dated July 5th, 1879, beginning “ My dear sisters ”. The envelope was addressed to and received by Sarah (Mrs. Billett) at her house in Southampton. In the letter lie wrote to them that he ' enclosed “ three drafts, one for each, equivalent to $25,000, your receipts for which were duly received ”, i. e., by Mary’s letter above mentioned. He also enclosed three powers of attorney by each of them to him for them to sign .before the U. S. Consul and return to him to enable him thereafter (as he wrote in substance) to do all the-business without getting new papers from them every time he had to act for them. He wrote that he had sent the same paper to their brother James and cousin Herbert, the other two residuary legatees. He also wrote: “ These papers is to give me power to purchase for you your shares of those Harlem mortgages as we agreed when I was with you last summer ”. And further: “ It will not be necessary to sign any more after this as I shall be able under it” (the said power of attorney) “ to collect all the remainder due to you and send it to you from time to time”. And also: “ Tour share of the mortgages will be about $30,000 each, this will bring you 6 or 7 per cent payable half yearly ”. He says he has also written to James,- and that they can talk with James, who will explain the matter to them if they do not understand it. He advises them to invest all he has remitted to them in United States four per cent bonds or else in British consols, and to give their banker instructions to. purchase the same for. them.</p> <p>4. At the time this letter was received by Sarah, the sisters Mary and Bhoda were living or staying either permanently or for a time with her at her house in Southampton, and the brother James came there upon-its receipt, and they all met and consulted, and went to the banker together and gave him orders to buy the consols. Cousin Herbert also came on the same occasion and stayed two days, and talked with them about the matter. This all appears by a letter of Sarah to John dated July 24th, 1879, which was in answer to John’s said letter of July 5th, 1879, to the three sisters. She also encloses with that letter the said three powers of attorney which he had sent for execution by .the three sisters. They had .all gone together with James before the U. S. Consul and executed them, and also to the banker and ordered him to invest their money in consols. She writes also that James and Herbert mentioned "about' the expense of “these papers”,.the powers df attorney, and that “we” want to pay the same. She then writes: “You say there will be more money due to me do not send me any more what is- my share for the future I wish you to invest for yourself or for my namesake as I have more, than ever I shall live to spend and I rather you have it I have told them all this is my wish ”.</p> <p>5. Sarah’s evidence was taken herein by commission. She testifies that John used to write to all three sisters as he did in the said letter of July 5th, 1879, and the one' that got the letter would show it to the others, and that she showed this letter to Mary and Rhoda..</p> <p>6. "Also, on October 22nd, 1903,— six years after Mary’s death — her son wrote to his cousin, the defendant John 0. Fry (son of the said John Fry, and one of his executors), as follows : “I have discovered a letter written by your father dated July 5th, 1879, informing my mother that her share of the Harlem mortgages which were agreed upon when your father was in England in 1878 was $30,000 ”. This is the same letter which is mentioned above of that .date, and informing the sisters that the share of each in the mortgages would be $30,000.< The plaintiff produced it on the trial in response to a notice by defendants to do so. There is a dispute on the evidence whether Sarah’s husband gave this letter to Mary’s said son, or whether he found it among his mother’s papers.</p> <p>7. Rhoda also gave to John all future sums coming to her from the estate, as appears by a letter by her to John dated Southampton, March 25th,-1882.- She wrote: “I told you to keep the money for yourself and only send me the interest. ' * * ' * Whatever you like to do with the. money for yourself you do it and send me the interest; that is all I want ”. . She encloses a copy of her will without giving its contents.- After her death it was found that she made a later will, leaving everything to John and his family.</p> <p>8; On August 9th, 1880, Mary executed and delivered a deed of gift to John of- all money or property he then had in his possession belonging to her and collected from the executors of William, or might thereafter collect or receive from the said executors'on her account, “ together with all my right, title and interest in and to all and every part of the remaining or residuary estate ” of the said deceased.</p> <p>At this time Mary, who was 39 years old, was engaged to be married to Mr. Purkess, and they were married 3 months and 20 days later, viz., on November 29th, 1880.</p> <p>9. On September 4th, 1880, Sarah executed and delivered to John a similar deed of gift. Bhoda did also, but the date of hers does not appear.</p> <p>10. In or about August, 1880, John went to England, and visited his three said sisters at Sarah’s house in Southampton. He was with them less than a week.</p> <p>11. On November 10th, 1880, John (having returned home) wrote to Bhoda as follows: “ I am glad to say all the property is doing nicely, all rented and everything going on satisfactorily, you will soon receive a notice from the court here that we are ready to settle our accounts as executors, it will not be necessary for you to take any notice of it, as I attend to it for you; a notice will also be sent for Sally and Mary, it is just a matter of form and requires no answer ”.</p> <p>12. On December 10th, 1880, Bhoda wrote a letter to John saying among other things as follows: “We received the court papers you spoke of but we shall take no notice of them”.</p> <p>13. On December 19th, 1880, Mary wrote to John from Beading (where she lived after her marriage) among other things as follows: “ I saw the manager of the bank and I have decided to let everything remain as it is in my own name. I shall be able to explain to you when I see you again, and if you will be kind enough to let me know what I owe for making out the draft I will send you an order for the amount, and I am much obliged for the trouble you have taken”. This “draft” it was agreed on the trial meant a draft of her marriage settlement, she having been married a few weeks previously to Mr. Purkess.</p> <p>14. On February 11th, 1881, John wrote to Bhoda enclosing her a draft equivalent to $453.68 for interest and “ rent for Harlem property He also informed her that all incumbrances on the Harlem property have been paid off and that her share of the rent thereafter will be about- £20 per month.</p> <p>15. On March 15th, 1881, John wrote to Bhoda as follows: “ The estate is now all settled up and all the money divided. I received for you your share $3,283.36. * * * I have invested this for you with the other and will send you the interest yearly as you requested”. This sum was the final sum to each in the distribution, as appears by the account.</p> <p>16. On March 24th, 1884, John wrote to Blioda enclosing a draft for £204 for interest, and informs her that lie expects that the money from which uncle Billett’s interest came will be paid over to the executors soon, as they had given notice to the parties who had it on interest to pay it over, and that her share will be one-sixth of the $10,000. He also says he will invest it for her and send- her the interest, unless she wants him to send the principal, in which case he will send it if she will let him know. This has reference to the said $10,000 put in trust with the executors by the will for uncle Billett for life. He had recently died.</p> <p>17. On April 14th, 1884, Sarah wrote to John acknowledging a letter and draft for money, and in which she wrote concerning this same trust fund of $10,000 as follows : “With respect to Uncle’s money, my share you keep it there at interest as you say and when you come we will see about it. Bhoda" received your letter and have sent by this mail no doubt you sent to Mary sainé time as’ you sent to us and if so she will write to you ”.</p> <p>18. On March.14th, 1887, John wrote to Mary acknowledging receipt'of a letter written by her husband in her name asking for her one-sixth .share of the Billett trust fund of $10,000, and enclosing a draft therefor. It does not appear whether she requested or authorized her husband to write the letter.</p> <p>19. On October 4th, 1900, Mary’s widower wrote to John’s son, one of the defendants, among other things that he had seen the will of Bhoda, who had died; that it left all her property to John and his family, and if her property was not divided among the next of kin he would contest the will. „ ...</p> <p>•20. On October 22nd, 1903, the son of Mary wrote to his cousin, the defendant John C. Fry, calling on him to account for the share of the writer’s, mother, Mary, in the said William Fry’s estate, as lie could use the money to advantage in his business on the London stock exchange. This letter has already been referred to above, as the one the writer wrote of as “informing my mother ” that the share of each in the mortgages would be $30,000. His mother had died nearly six years before, namely, on December 16th,.1897.</p> <p>21." After the execution of the three deeds of gift by the three sisters to John he continued to send the interest on Rhoda’s share to her, and an annuity of £400 a year to Sarah.</p> <p>22. This action was begun on October 28th, 1904, which was more than 24 years, after tlie.deed of gift by Mary to John was made, and 7 years after Mary died.</p> <p>23. At the time of the commencement of this action all of the executors and their attorneys and counsel, and all of "the residuary legatees under the will of William excepting Sarah (Mrs. Billett), who was about 76 years old, and the IT. S. Consul at Southampton, who took the acknowledgments to the various papers from time to time, had died.</p> <p>24. The sums which John received from the executors of William and kept, and which the defendants claim he had a right to keep under the deeds of gift, were in the case of Mary, as well as of the other two sisters, $10,000 on September 9th, 1879, $10,000 on June 22nd, 1880, $21,058.34 on January 1st, 1881, and $3,283.36 on February 28th, 1881, making a total of $44,341.70.</p> <p>25. Mrs. Billett in her deposition testifies that Mary told her she had given her share to John, also that Mary knew.that Rhoda had done the same.</p> <p>26. In the power of attorney (dated July 18th, 1879) and the deed of gift (dated August 9tli, 1880) Mary describes herself as residing in Southampton, where Rhoda also lived during the same time, and the only place that they appear by the evidence to have lived there was at the home of Sarah (Mrs. Billett). After her marriage Mary lived at Reading with her husband. She had been a parlor máid and he was a butler.</p> <p>27. The said power of attorney of each sister to John in terms authorized him to receive for the . sisters any money or property that thereafter came to them from the executors of the estate of William, and also to invest the same for them. It also authorized him to consent to a partition of the residuary estate, and.to sell real and personal estate, and to receive bonds, mortgages or other securities in such division and sell the same and re-invest. This is the instrument on which the trust established by the judgment herein is based, and, as lias been said, the deed of gift was executed about a year later.</p> <p>The claim of the complaint is that all of the said moneys was received by John as trustee.under the said power of attorney, and that he always held the same, thereunder. The claim of the defendants is that Mary (like the other two sisters) made a gift thereof to her brother John.</p>

Appeal by the defendant, the Erie Railroad Company, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Orange ,on the 18th day of February, 1907, upon the verdict of a jury for $10,500, and also, from an order entered in said clerk’s office on the 21st day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Charles H. Israels and another, doing business as Israels & Harder, from a judgment of the Supreme Court in favor' of the defendants, entered in the office of the cleric of the county of Queens on the 25th day of March, 1907, upon the dismissal of. the complaint by direction of the court at the close of the plaintiffs’ case upon a trial at the Queens County Trial Term. The action is to recover a balance for the fees of the plaintiffs as architects.

Appeal by the relators, William H. Butler and another, from an order of the Supreme Court, made at the Nassau.

Appeal by the plaintiff, James F. Martin, as guardian ad litem, etc., from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 25th day of January, 1902, pursuant to an order entered- in said clerk’s office on • the 27th day of December, 1901, reversing a judgment of a justice of the peace of the town of Cortlandt in. favor of - the plaintiff, and also from the said order pursuant to which the judgment appealed from…

<p>Process — service by publication -r- affidavits insufficient — partition — title unmarketable.</p> <p>The moving affidavits on a motion to obtain an' order for service by publication must state facts from which the court may determine that the defendant is not ' a resident, or that his whereabouts, after diligent inquiry, remain unknown, and that the plaintiff has not been or will be unable to make personal "service. Allegations in the exact words of the statute are mere conclusions of fact and do not authorize the granting of the order. Facts, not conclusions of fact-must be alleged.</p> <p>Affidavit as to the non-residence of defendants and the inability to make personal service within the State examined, and Tield, to be insufficient to give jurisdiction to grant an order for service by publication.</p> <p>But an allegation that the last known residence of a defendant was somewhere in the State of Washington and that she had not been heard from for upwards of ten years and that; the affiant cannot, after- diligent inquiry, ascertain he residence, is sufficient to warrant an order for service by publication, as the former residence is presumed to continue and is so distant from this State that - there is no probability of effecting personal service here as might be likely were the residence in a near-by State.</p> <p>When service of summons by publication in an action for partition has been granted on defective affidavits, the purchaser will not be required to take title.</p>

Appeal by the defendant, Francis J. Lantry, as fire commissioner, etc., from an order of the Supreme Court, made at the Kings County Special Térm and entered in the office of the clerk of the county of^ Kings on the 15th day of July, 1907, granting the petitioner’s motion for a peremptory writ of mandamus.

Appeal by the defendants, Milliken Bros, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the- clerk of the county of Kings on the 17th day of August, 1907.

<p>Attorney and client — lien — employment by representative.</p> <p>An attorney may have a lien under section 66 of the Code of Civil Procedure on moneys collected for an estate, notwithstanding that he was retained by the administrator.</p>

' Appeal by the defendant, Bertha Yolkening, 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 18th day of March, 1907,. upon the decision of the court, rendered after a trial at the. Kings County Special Term, adjudging a certain notice of lien docketed by the plaintiffs to be good and valid.

Appeal by Emma Wells from a decree of the Surrogate’s Court of the county of Miagara, entered in said Surrogate’s Court on the 13th day of March, 1907, revoking letters of administration upon the estate of Arthur Wells, deceased, theretofore issued to the appellant, upon the ground that the petition upon which she obtained the same contained a false statement or suggestion of a material fact, to wit, that she was the widow of the said Arthur Wells, deceased, when in fact she…

<p>Foreign corporation — license to do business—jurisdiction of State courts — mandamus to compel reinstatement of member.</p> <p>A foreign fraternal benefit corporation by accepting a license, to do business in this State submits itself to the jurisdiction of our courts, which may issue mandamus to compel the reinstatement of a member illegally expelled.</p>

Appeal by the defendant, the Rochester and Eastern Rapid Railway Company, from a judgment of the County Court of'Monroe county in favor of the plaintiff, entered in the office of the clerk of said county on the lltli day of February, 1907, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 24th day of September, 1907, denying tlie defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William P. Gannon 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 Oswego on the 3d day of September, 1907, upon the decision of the court' rendered after a trial at the Oswego Trial Term, a jury having been waived.

Appeal by the defendants, Ada M. Murphy 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 ¡Niagara on the 20tli day of June, 1907, upon the decision of the court, rendered after a trial at the ¡Niagara Special Term, establishing a vendor’s lien in the sum of $3,186.98 upon certain lands described .in the complaint.

Appeal by the defendant, the Phcenix Preferred Accident Insurance Company of Detroit, Michigan,- from a judgment of the County Court of Monroe county, entered in the office of the clerk of said county on the 16'th day of July, 1907, affirming a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff, rendered on the 26th day of March, 1907.

Appeal by the plaintiff, Edith Hodgkins, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 14th day of February, 1907, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the plaintiff’s complaint.

Appeal by the defendants, John A. Thomas, as executor, etc., 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 Cayuga oil the 24th day of July, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of July, 1907, denying .the defendants’ motion for a new trial made upon the minutes.

•Submission of a • controversy upon an- agreed státertient of facts pursuant to section 1-27.9-of the Code'of' Civil' Procedure. Moses Richmond, of the city of Buffalo, died December 30, 1890, leaving a last will and testament,, with á codicil thereto, which was admitted to probate by the. Surrogate’s Court of Erie county in January following. He left him surviving his widow, the plaintiff, but no children or.lineal descendants.

Appeal by the plaintiff, William J. Shepard, as trustee, etc., from a judgment of the Supreme Court in -favor of the defendant, entered in the office of the .clerk of the county of Jefferson on the 8th day of April, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the. 19th day of April, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Caroline P. Voshall, as executrix; etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office óf the clerk of the county of Monroe on the 7th day of August, 1907, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the complaint' upon the merits. The action is in equity to construe certain provisions of the will of John George Wagner, deceased.

Appeal by the relators, the New York Central and Hudson ■Biver Bailroad Company and others, 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 17th day of April, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing a writ of certiorari theretofore issued herein.

- Appeal by the plaintiffs, Phillip I. Nash and another, from a judgment of the Supreme Court in favor of the plaintiffs for nominal damages, entered in the office of the clerk of the county of Jefferson on the 24th day of January, .1907, upon the verdict of a jury rendered by direction of the court after a trial at the Jefferson Trial Term.

Appeal by the defendant, The City of Buffalo, 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 July, 1907 upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 30th day of April, 1907, denying . the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the City of Buffalo, from a judgment of the Municipal Court of the city of Buffalo in favor of the defendant, rendered on the 27th day of July, 1907, upon the decision of the court sustaining the defendant’s demurrer to the complaint and. dismissing the said complaint.

<p>Conditional sale — action to recover installments paid — offset by . defendant.</p> <p>In an action under chapter 762 of the Laws of 1900 to recover the amount paid under a contract of conditional sale of a chattel which had been retaken by the vendor, the latter may offset the expenses of the replevin, but is not entitled to offset rent for the chattel during the time it was held by the plaintiff.</p>

Appeal by Aldert C. Tuttle from a decree of the Surrogate’s Court of the county of Herkimer, entered in said Surrogate’s Court on the 22d day of October, 1906, admitting to probate the alleged last will and codicil of Jerome B. Tuttle, deceased.

<p>Appeal by the defendant, the M. E. Blaster 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 Oneida on the 9th day Of February, 1907, upon the verdict of a. jury, and also from an order entered in said clerk’s office on the 29th day of January, 1907, denying the defendant’s motion for a new trial made ■ upon the minutes.</p> <p>Also an appeal by the plaintiff, Catharine S. A. Salmon, from an order entered on the 7th day of February, 1907, denying the plaintiff’s right to treble damages.</p>

<p>Appeal by the defendant, Frank Fiori, from a judgment of the Supreme Court, rendered on the 4th day of ¡November, 1905, after a trial at the Jefferson Trial Term convicting the defendant of the crime of murder in the second degree.</p> <p>The defendant was indicted by a grand jury of Jefferson county at a Trial Term of the Supreme Court held in and for said county, in October, 1905, for the crime of murder in the first degree for having on the 3d day of September, 1905, at the city of Water-town, in said county, killed one Charles Gf. Babcock and, as it is alleged, under such circumstances as to constitute the crime charged. The jury found the defendant guilty of murder in the-second degree.</p> <p>This' appeal brings up for review the overruling of the defendant’s demurrer to the indictment, defendant’s challenge to the panel of jurors, the weight of the evidence, the exceptions taken- by the defendant as to the admission and rejection of evidence, and as to the charge and refusal to .charge, and also the refusal of the court to grant a new trial upon newly-discovered evidence.</p>

<p>Municipal corporation — negligence — fall on accumulated icé —verdict not excessive.</p> <p>A village is liable for injuriés received by a pedestrian who fell upon ice accumulatéd on the sidewalk by reason of the neglect of the municipal authorities who, having notice of the condition, allowed a conduit used to conduct surface waters and waters from a trough to remain clogged during an entire winter, so that waters were discharged across the sidewalk.</p> <p>Under the circumstances the defendant is not exculpated because there was a frost and a light fall of snow the night before the accident, whereby the danger was increased.</p> <p>A verdict for §2,000 is not excessive when the plaintiff, a woman earning about §6 a week by outside labor in addition to doing her own-housework, sustained a Oolles fracture of the wrist, which caused great pain, seven months’ incapacity for labor; and left her hand permanently- weakened.</p>

<p>. . Appeal by the plaintiff,-Elliot O. Worden, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, entered in the office of the clerk of the county of Oneida on the 21st day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of .March, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Town of German Elatts, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 6tli day of May, 1907, upon the- verdict of a jury for $3,850, and also from two orders entered in said clerk’s office on the 6th day of May, 1907, respectively denying the defendant’s motion for a nonsuit and motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, James S. Simmons, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Monroe on the 30th- day of September, 1907, upon the decision of the court, rendered after a trial at the Monroe Special Term, sustaining the defendant’s demurrer to the complaint.</p>

<p>Nuisance '— pleading — injunction and money damages — parties — misjoinder of parties claiming individual damage. '</p> <p>The complaint of a single plaintiff in equity to restrain the continuance of a nuisance created by the separate acts of several defendants is not demurrable on the ground of multifariousness.because it unites with the cause for equitable relief one for damages already suffered.</p> <p>But, although several parties whose individual lands have been inj ured by a nuisance may unite as plaintiffs in an action to abate it, they cannot recover in that action the damage caused to each, the relief being confined to the abatement of the- nuisances in which they have a common interest.</p> <p>Such complaint by several plaintiffs asking injunction and separate damage is bad on demurrer, and not sustainable upon the ground that the allegations as to damage are irrelevant and redundant, for it seeks a recovery for each plaintiff on matters with which the others have no concern.</p>

Appeal by the plaintiff, Edwin Collins, from a judgment of the Supreme Court in favor of -the defendant, entered in the office of the clerk of the county of Onondaga on the 8th day of December, 1902, upon the report of a referee. ' '

■. Motion by the plaintiff, George W. Johnsfón, for a new trial upon a case containing exceptions ordered to be heard at, íhé Appellate Division in the first instance. ■ The action came oh for trial at Cayuga Trial Term, January, 1907, and at the close of plaintiff’s case the trial court directed dismissal .of plaintiff’s complaint, to which plaintiff duly excepted; and the order entered thereon provided that plaintiff’s exceptions be heard in the first instance in the…

Appeal by the petitioner, James Campbell, from a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 7th day of October, 1907, denying the appellant’s petition for the revocation off letters of administration upon the estate of Robert E. Campbell, deceased, theretofore issued to the respondent, a creditor of said deceased, and for the award of letters to the appellant. ' ' , ,

Appeal by the plaintiff, William L. Taylor, from' a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 5th day of March, 1907, upon the decision of the court, rendered after a trial at the Onondaga Special Term, dismissing.the complaint upon the merits in an action to obtain an absolute divorce.

Motion .by the plaintiffs, Melvin D. Tucker and another, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in. the first instance after a trial at the Erie Trial Term in October, 1906: The result at Trial Term was a direction of verdict for plaintiffs fbr $171 and interest, the amount of defendant’s offer of judgment, to which plaintiffs duly excepted.

<p>Municipal corporation — dismissal of police officer, city of Mew York — insufficient notice.</p> <p>A failure to give a member of the police force of the city of New York forty-eight hours’ notice of the hearing on a proceeding to dismiss him, as required by rule' 86g of the department, is fatal to the validity of the proceedings and entitles him to reinstatement.</p>

Appeal by the defendant, The New York' Central and Hudson .River Railroad Company; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of. June, 1907, upon the verdict of a jury for $101,789.10, and also, from an order entered in said clerk’s office-bn the, 19tli day -of. June, 1907, denying the defendant’s motion fór a new trial made upon the minutes., '

Appeal by the defendants, Letitia Whitefield and others, by their guardian ad litem, William Klein, 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 13th day of August, 1907, upon the decision of the court, rendered after a trial at- the Yew York Special Term, declaring certain provisions of the will of George. Whitefield, Jr.,, deceased, to be void.

Appeal «by the defendants, George J. Gonld and others, from a judgment of the Supreme Cou'rt in favor of the plaintiff, entered in. the office of the clerk of the county of New York on the 1st day of June, 1907, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 5th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Daniel Mapes, Jr., 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 Mew York on the 20th day of April, 1907, upon the decision of the court rendered after a trial at the Mew York Special Term.

Appeal by the defendants, Daniel Mapes, Jr., 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 Mew York on the 20th day of April, 1907, upon the decision of the court, rendered after á trial at the Mew York Special Term, directing.the foreclosure of a mortgage and a sale of the premises described in the complaint.

Appeal by the defendant, William L. Crow, 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 5tli day of March, .1907, upon the verdict of a jury for $3,000, andalso from an order entered in said clerk’s office on the 4th day of March, 1907, denying the defendant’s motion for a new -trial made upon the minutes.

' Appeal by the defendant,- The Foundation -Company, .from a judgment of the Supreme Court in favor of the plaintiff, entered in,' the office of the cleric of the county of New York on the 19th day of July, 1907, upon the report of a referee. No case and exceptions was -made and the appeal,merely brings up -the judgment roll for review. The- facts, therefore, stand as found by the referee.

Appeal by the relators, Adolph Danziger and others, from an order of the Supreme Court, made at- the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of August, 1907, denying the relators’ motion for a peremptory writ of mandamus.

Appeal by Joseph Gans from, an' oider 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 19th day of Septe'niber, 1907, ad judging the appellant guilty of contémpt of court , in failing to obey an order directing the' payment, of certain costs. .

Appeal by the defendant, Robert J. Mahoney, 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 20th day of April, 1907, upon the decision of the court, rendered after a trial at the Mew York Special Term, directing the foreclosure of a mechanic’s lien.

Appeal by the relator, Domenico Geraci, from a final 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 18th day of May, 1907, dismissing an alternative writ of mandamus upon the merits, also (as stated in the notice of appeal) from a judgment entered the same day pursuant to said final order, and also from an order entered in said clerk’s ofiice on the 5th day of June, 19.07, denying the…

Appeal by the defendants, Lucy E. Lee and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the ofBee'of the clerk of the county of New York oh the 28tli day of June, 1907, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the defendant, Isadore Garlick, from an order of the. Supreme Court, made at the Dew York Special Term and entered in the office of the clerk of the'county of .Dew York oír. the 24tli day of October, 1907. ' ' . '•

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered- in the office of the cleric of the county of HeW York on the 18th 'day of December, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 24th day of December, 1906, denying the defendant’s motion for a new. trial made upon the minutes.</p>

<p>Certiorari issued out of the Supreme. Court and attested on the 20th day of September, 1907, directed to Theodore A.. Bingham, as police commissioner of the city of New York, commanding him to certify and.return to the office of the clerk of the county of New York all and singular his proceedings had in relation to. th,e dismissal of the relator from the police department of the city of New York.</p>

Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 18tli day of October, 1907, sustaining a writ of habeas corpus and discharging the relator from custody. '

Appeal by the defendant, The City of Yew York, 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 16tlrday of July, 1907, uponthe.verdict of a. jury for $1,-250, rendered after a trial,at:the--New:/York. Trial.Term. .,7 v :.

Appeal by the defendant, William Paris Chambers, from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of July, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 9th day of August, 1907, denying the defendant’s motion for a new trial made upon the minutes.

• Appeal 1)7,, the^dpfendan.ts, Isjdor .Straus and. apotlxey,- frpin, a judgment. Q-i-the Supreme;Cqqr,t in favqr, of the. plaintiff,-entered in^h^Qffiqe.ef the.qlerjk. of the,,county of ÍTew; York-qq the. 2d day, of March, l^OT,..upon the,yqfdict ,ofj a,, jury for. |1,§QQ, aqd 'ajsp.-from an order, entered in said, clerk’s office .on. thq.lpt .day o^Mqpqh,. 1907, denying the defendant^’ motion, for, a, new .trial iqadp/qpqn, tlie minutes. - , •• ,, .....' ........ ,........,

Appeal by the defendants, Henry W. Unger, as justice of the ■ Municipal Court of the city of Mew York, etc., and another, from an order of the Supreme Court, made at the Mew York.

•Appeal by the defendant,. The Haeger Storage Warehouse Company, from a judgment of the Supreme Court in favor of the-plaintiff, entered in the office of tlié clerk' of the county of-New York on the 15th day of May, 1907, upon the verdict of a jury, ánd also from an order entered in said clerk’s office on the 15th day of May, 1907, denying the' defendant’s 'Motion for a new trial made upon the minutes.-

<p>Appeal by the. plaintiff, the Caesar Misch Incorporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county.of New York on the 25th day of June, 1907, upon the verdict of a jury pondered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 2ist day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of May, 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 15th day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.-

<p>Crime — manslaughter—criminal abortion — evidence — hypothetical question —possession of instrument's "by defendant — statement by prosecution outside evidence — extension of term and transfer of place . of trial.</p> <p>On .the trial' of an indictment for manslaughter by performing, an operation to cause abortion,, a hypothetical .question may embrace statements of another . witness who testified that-the instrument used looked like a bougie or catheter ' with which instruments the witness was familiar and either of which could' bé ’ used for abortion. It may also include statements based on testimony that the discharge from the deceased looked like membrane, etc. ^</p> <p>In- such action it is proper to prove that shortly after the alleged operation the defendant was in possession of instruments adapted for abortion and that she tried to hide them or gave an unreasonable explanation of’ her possession.</p> <p>Although the district attorney in summing up attempted to make certain statements outside the evidence, the defendant has not been prejudiced if her counsel’s objection thereto was sustained and the district attorney admonished by the court to confine his remarks to the evidence.</p> <p>Judgment of conviction will not be reversed because the November term was. extended into December and the place of trial transferred from the criminal court building to the county court house.</p>

Appeal by the defendant, the Empire State Surety 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 4th day of June, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, John B. Martin 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 13th day of June, 1907, upon the verdict of a jury for $4,285, rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 14th day of June, 1907, denying the defendants’ motion for a new trial made upon' the…

Appeal by the defendants, the New York, Westchester and Boston Railway Co.mpany and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of September, 1907, continuing a temporary pendente lite.

Appeal by the defendant, the Equitable ¡¡National Bank of ¡Nhw York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 28th day of May, 1907, affirming an order of the City Court of the city of ¡New York entered in the office of the clerk of said court on. the 28th day of ¡December, 1906.

<p>Appeal by the plaintiff, Charles B. Fox, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Mew York on the 14th day of March, 1907, affirming a judgment bf the Municipal Court of the city of Mew York in" favor of the defendant entered on the 10th day of December, 1906, dismissing the complaint.</p>

Appeal by the defendant, The Edelmeyer and Morgan Hod Elevator Company, 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 15th day of April, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s offide on the 17th day ■ of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the .county of New York on the 11th day of January, 1907, upon the verdict of a jury for $1,500, and also from an order entered in. said clerk’s office on the 26th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by 'the defendant, George J. Conrad, from ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of September, 1907, granting the plaintiff’s motion for alimony and counsel fees pendente lite.

Appeal by the defendant, William H. Fulton, from an order of the' Supreme Court, made at the Flew York Special Term and entered in the office of the clerk of the county of Flew York on the 2d day of FTovember, 1907.

Appeal by the defendants, Max Hess 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 21st 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 18th day of February, 1907, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Annie Powers, 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 New York on the 5th day of July, 1907, setting aside the verdict of a jury in. favor of the plaintiff and dismissing the complaint, and also from an order entered in «said clerk’s office on the 29th day of June, 1907, upon which said judgment was entered.

Appeal by the plaintiff, Frank Shewing, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 1st day of November, 1907, upon the decision of the court,, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the separate.defense set up in the answer.

<p>Husband, and wife — separation — complaint stating cause of action — •• alimony pendente lite.</p> <p>The complaint of a wife suing for judicial separation which alleges that the defendant compelled the plaintiff to live with his parents, that she had constant disputes with her mother-in-law, that the defendant refused to give her money and objected to her visiting her own mother and refused to provide her with money to prepare for the expected birth of a child, that the defendant’s mother accused the plaintiff of going with other men, at which the defendant stated he would believe his mother in preference to the plaintiff, that the defendant upon demand refused to provide a separate home for the plaintiff and refused' to use for that purpose a gift made by the plaintiff’s mother, ,etc., and that the plaintiff was forced to return to her mother leaving her clothes and apparel with the defendant who refused to give them up, etc., states a cause of action for separation, and entitles the plaintiff to alimony pendente lite, with counsel fees.</p> <p>Clabke, J., dissented.</p>

<p>Husband and wife — separation — order compelling plaintiff to accept' defendant’s offer to provide a home reversed.</p> <p>Although the court in an action for separation has denied alimony pendente lite upon condition that the. defendant serve upon the plaintiff’s attorney within • ten days a written offer to provide a suitable home for the plaintiff and her child, it is without authority to make a further order compelling the plaintiff to accept the defendant’s offer to provide a suitable home.</p> <p>When the court upon-appeal has reversed the order denying alimony as improperly made, such order compelling the plaintiff to accept the defendant’s offer of a home will also be reversed. ' -</p> <p>Clabkb, J., dissented.</p>

<p>Attorney and client — claim for professional services against assignee of cause .of action.</p> <p>An attorney who has prosecuted -to final judgment and through successful appeals a causé of action which was. assigned pending the litigation is entitled as against the assignee to' be paid from the judgments the reasonable value of his services and his disbursements.</p> <p>Claim for services, examined and amount reduced.</p>

Appeal by the plaintiff, Edwin P. Shattuck, as receiver, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of November, 1907? granting a stay of the proceedings herein until the final'determination of another action, except that pai't of said order which excludes from such stay the decision upon the issues of law arising upon the plaintiff’s demurrer to a further and…

Appeal by the plaintiff, Minnie L. Weis, 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 11th day of Movember, 1907, denying the plaintiff’s motion for a bill of particulars of the amended answer, and also from an order entered in said clerk’s office on the 11th day of Movember, 1907, framing issues for trial by a jury.

<p>Appeal by the defendants, Edward R. Thomas and another, from .an order of the Supreme Court, made at the New York Special Term- and entered in the office of the clerk of the county of New York on the 12th .day of August, 1907, as resettled by an order entered on the 15th day of August, 1907, granting the plaintiff’s motion for a reargument of a motion to revive the action and"reviving it in the names of the executors of the deceased plaintiff as plaintiffs and permitting them to serve an amended complaint.</p>

Appeal by the defendants, Edpard R. Thomas and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1907, as resettled by an order entered in said clerk’s office on the 31st day of July, 1907, in so far as it refuses to vacate an ex parte order substituting Charles S. Taber as attorney for the plaintiff in place of Russell & Winslow.

Appeal by the defendant, Robert S. Smith, 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 15tlvday of July, 1907, upon the decision of the court rendered after a trial at the New York Special Term, and also (as stated in the notice of appeal) from the said décision of the court.

<p>Pleading — broker’s action for commissions — failure to allege con- ■ dition precedent — effect of fiduciary relation between broker and purchaser.</p> <p>The complaint of a broker, suing for a balance of commissions, which alleges that the balance was payable out of a sum to bé paid the defendant on the closing of title, should be dismissed for failure to allege as a condition precedent to the liability of the defendant that he had received the final payment. An allegation that the sum “became due” on a given' date is. not equivalent to an allegation of the happening of the condition precedent.</p> <p>The question as to the sufficiency of such complaint is raised by objections to the admission of evidence of final payment and a final motion to dismiss upon that - specific ground, although there was no motion to dismiss at the opening of the trial. .</p> <p>When the broker was an attorney at law, and the purchaser produced was his . own client who purchased the property for the benefit of a corporation of which the broker was a director, the plaintiff bore a relation of trust and confidence both to the nominal and real purchaser, and is. not entitled to recover on his contract with' the seller unless it be shown that it was made with the full knowledge and consent- of the purchaser. ' •</p>

<p>Husband and wife — separation agreement — when unenforcible.</p> <p>A separation agreement between husband and wife made without the intervention of a trustee at a time when they were actually living together is void and unenforcible by the wife, although the parties subsequently separated.</p>

Appeal by the plaintiffs, Louis Windmuller and others, 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 22d day of August, 1907, upon the' dismissal of the complaint by direction df the court after a trial at the. New York Trial Term, and also from an order entered in said clerk’s office on the 25th day of June, 1907, denying the plaintiffs’ motion for a new trial made upon the minutes. .

Appeal by the plaintiff, James Shirley, 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 December, 1907, denying the plaintiff’s motion for leave to amend the complaint herein.

Appeal by the defendant, the Standard Specialty and Tube Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 25th day of April, 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th. day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Gustave Disch, from a judgment of the Supreme Court in. favor of the plaintiff and certain of, the defendants, entered in the office of the clerk of the county of New York on the 5th day of August,. 1907, upon the decision of the court, rendered after a trial at the New York Special Term, directing the partition and sale of certain real property located in the city of New York. ' . '

Appeal by the defendants, Inglis Stuart and others, as executors and trustees, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1907, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Motion by the defendants, James M. Waterbury and another, 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 after a trial at the New York Trial Term in May, 1907.</p>

Appeal by the plaintiff, Joseph W. Webber, from a judgment of the Supreme Court in favor of the defendant, the Franklin Brewing Company, entered in the office of the clerk of the county of ¡New York on the 15th day of February, 1907, upon the dismissal of the complaint by direction of the court after a trial at the ¡New York 'Trial Term.

Appeal by the defendants, Edward C. Hartshorne and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 4th day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of February, 1907, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Frank K. Sturgis and others, from an interlocutory judgment of the -Supreme Court in favor of the plaintiffs, entered in the office of the clerk o.f the county of Mew York on' the 10th day of May, 1907, upon the decision of the court, rendered after a trial at the Mew York Special Term, overruling the defendants’ demurrer to the amended complaint.

Appeal by the contestants, Eosa Schleissner and another, from a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 2d day of August, 1907.

Appeal by the defendants, Frank Tousey, Publisher, a corporation, 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 22d day of June, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, determining the ownership of a certain share of stock.

Appeal by the defendant, Charles P. Wortman, as trustee, etc., from a judgment of the Supreme Court in favor of the defendant, The Capital Company, entered in the office of the clerk of the county of New York on .the'lltli 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 and granting further relief to said defendant company.

<p>Libel — successive publications relating to single act — actions consolidated.</p> <p>Alleged libelous articles and cartoons published in a certain newspaper for several successive days stating that the plaintiff, a State Senator, was dishonest, unfit for office, etc., because he voted against the removal of a State Superintendent of Insurance, all relate to a single official act of the plaintiff and give rise to a single cause of action. Hence,- defendant is entitled to have two actions brought on'successive publications consolidated.</p>

Appeal by the. plaintiff, Eleanor Rawls Reader, from an order of ■ the Supreme Jdourt,. made at the New York Special Term and entered in the office of the clerk of the cormty of New York on the 31st day of May, 1907, denying the plaintiff’s- motion for a bill of particulars of the second separate and partial defense contained in the answer.' '

Appeal by the defendant, the New Jersey and Hudson Elver Eailway and Ferry Company, 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 8tli day of Hovember, 1907, as denies the defendant’s motion to punish the plaintiff for contempt of court .and to dismiss this action.

Appeal by the, defendant, Aristides Thanasoiilis, froía an order of the Supreme Court, made at the Yew York Special Term and entered iii the office of the clerk of the county of Yew York on the 16th day of October, 1907,. granting an- injunction restraining the defendant and his servants from interfering with the plaintiffs’ performance of their work in the erection of a.chimney upon certain premises. • ' '

906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the New York Trial Term. The opinion handed down upon the original argument of the appeal will be found in. 121 Appellate Division, 779.

Appeal by the defendants, Michael Ryan and another, as executors, etc., and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27th day of August, 1907, upon the decision of the court rendered after á trial at the New York Special Term, overruling the defendants’ demurrers to the plaintiffs’ reply.

Appeal by the defendant, the Empire Brick and Supply Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 6th day of June, 1907, affirming a judgment of the City Court of the city of ¡New York in favor of the plaintiff, entered in the office of the clerk of said court on the lith day of' December, 1906, and an order of said City Court,, entered on the 29th day of December, 1906, denying the…

Appeal by the defendant, Benjamin P. Dueas, 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 5th day of December, 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.,

Appeal by the plaintiff, the Mutual Millc and Cream 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 30th day of ApUl, 1901, denying the plaintiff’s motion to .punish the defendant for contempt of court because of his violation of an injunction order theretofore granted against him,

<p>• Appeal by the defendant, The New York Times 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 31st day of Hay, 190.6, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal-by the defendant, The Nassau Bank of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of Hay, 1907, denying the defendant’s motion for an order compelling the plaintiff to give security for costs.

<p>Beal property— vendor and purchaser — legal action to recover earnest money ■— vendor cannot excuse default.</p> <p>When in an action to recover earnest money paid on the signing of a contract to convey lands, the complaint asks no -equitable relief by way of specific performance and no equitable defenses are set up by the answer, it is a pure action at law and the defendant is not entitled to'excuse a failure to appear at the time set for passing title.</p> <p>In an action at law time is considered as ■ of the essence of á contract for the purchase and sale of land.</p>

Appeal by the plaintiff, J. Qnintns Colien, as trustee, etc., 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 10th day of December,- 1907, upon the decision of the court, rendered after a trial at'tlie New York Special Term,-sustaining tlie defendant’s demurrer to the complaint.

<p>Appeal by tlie plaintiff, Herman Colien, from an order of the Supreme Court, made at the Kings County Special Term, bearing date tlie lltli day of September, 1907, and entered in the office of the clerk of tlie county of Kings, canceling and discharging of record a lis pendens.</p>

Appeal by the plaintiff, Lionel Charbonneau, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Kings on the 1st day of May, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant; the John ÜSL Robins Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the-27th day of June,-1907, upon the verdict of a jury for $12,000, and also from an order entered in said clel'k’-s' office on -the 1st day of July, 1907,' denying the defendant’s motion for a new trial made upon the minutes.

■ Appeal by the defendant, Fannie Shaffer, from a judgment of the Municipal Court of the' city of New York,, borough- of Brooklyn, in favor of the plaintiff in the sum of §169.40. -

Appeal' by the plaintiffs, Charles James and another, from so much of a judgment of the Municipal Court of the city of New York, borough of Brooklyn, as dismisses the complaint against the defendant Abram Sitomer.

Appeal by the defendant, The Prince Line, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the. defendant, the Long Island Machine and Marine 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 Queens on the 13th day of March, 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28tli day of March, 1907, denying the defendant’s motion for a new trial made up,on the minutes.

Appeal by the plaintiff, The E. B. Constantine Manufacturing Company, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of June, 1906, upon the dismissal of the complaint by direction of . the court at the close of the plaintiff’s case upon a trial before the court and a jury.

Appeal by the defendant, Charles Cranford, 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 13th day of December, 1906, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Evidence— production of animal to show identity — right of parties to be present — appeal — return not showing proper production of animal.</p> <p>An animal may be brought into court as real evidence of its identity with the subject of the litigation, and an adjournment may be taken for that purpose.</p> <p>, But the animal itself, being evidence, must be produced like other evidence, subject to the scrutiny and inquiry of both parties. Hence, a judgment founded on a personal inspection.of the horse by the justice after an- adjournment taken for that purpose, will be reversed if the minutes do not show that the horse was produced during the trial or how the justice was satisfied that the horse he saw was the horse in controversy or that the parties so agreed.</p> <p>A statement in the return that the court “ordered” the horse for inspection in the presence of both parties is not equivalent to a statement that- the inspection ' was-made under those conditions.</p>

Appeal by the defendant, Ralph Izard, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 30th day of August, 1901.

Appeal by the plaintiff, Anna M. Steuerwald, from an order of the Municipal Court of the city of New York, borough of Brooklyn, denying the plaintiff’s motion to set aside the verdict of a jury and for a new trial.

<p>Mew trial — probable result before new jury immaterial ^master and servant — injury by explosion — weight of evidence as to instruction.</p> <p>When the trial court finds that a verdict for the plaintiff is not supported by the evidence, it cannot deny a new trial upon the ground that sympathy for the plaintiff will probably beso great as to lead another jury to award still greater damage. \</p> <p>Evidence in an action against a master to recover for injuries received by the explosion of blasting fuses examined, and held, to be insufficient to warrant a finding that the plaintiff was not instructed as to the inherent danger of her occupation. . • ,</p>

Appeal by the defendant, Albert 0. Benedict, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of March, 1907, upon the verdict of a jury for $150, and also from an 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, The Fourteenth Street Store, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1907, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

<p>Appeal by the plaintiff, Richard Whalen, from a judgment of the Municipal Court of the city of Mew'York, borough of Brooklyn, in favor of the defendant, rendered on the 10th day of September, 1907.</p>

Appeal by the defendant, Charles H. Collison, from a judgment of the Municipal Court of the city of New-York, borough of Richmond, iii favor, of the plaintiffs, rendered on the 11th day of June 1907.

Appeal by the plaintiff, Michael Ferrick, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on -the 1st day of April, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Queens' County Trial Term, and also from an order' entered in said clerk’s office on the 29th day of March, 1907, deny.ing the plaintiff’s motion for a new trial, made upon the minutes.

<p>Appeal by the defendants, William H. Maxwell, as president, and others, constituting the board of examiners,, etc., from' an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 22d day of June, 1907, granting the relator’s motion for a writ of certiorari.</p>

<p>Practice — order for judgment not judgment — docket corrected.</p> <p>A paper reciting the facts of a. trial, the verdict, the taxation of costs, and stating that “it is hereby ordered that judgment be entered in favor of plaintiff and against the defendant" for a stated sum of money, “ and that plaintiff have execution therefor,” is- not a judgment, and cannot be entered as such. It is merely an order that judgment enter, and, when docketed as a judgment, will be set aside, and the clerk directed to correct the judgment docket.</p>

Appeal by the defendant, the Italian Savings Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 15th day of March, 190Í, upon the decision of the court rendered after a trial at the Queens County Special Term.

'Appeal by the defendant., the E. R. Allen Foundry 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 February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office- on the lltli day of February, 1907, denying the defendant’s motion', for a new trial made upon the-minutes.

-Appeal by the defendant, The Brooklyn Heights . Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day. of March, 1907, upon the verdict of a jury for $378.75, and also from an order entered in said clerk’s office on the 5th- day of April, 1907, denying the defendant’s motion for a new trial made upon the’ minutes.

<p>Uegligence. — facts supporting finding that tuberculosis resulted from injury—allegations permitting such, proof — new trial on grounds of surprise denied — verdict not excessive.</p> <p>Action to recover damages for personal injuries sustained through the negligent operation of a surface car.</p> <p>Evidence examined and hdd to sustain a finding hy the- jury that the consumptive condition of the plaintiff at the time of the trial was the proximate result of a blow on the chest received when thrown from the defendant’s car.</p> <p>Under a complaint alleging that as a result of such injury the plaintiff “ was made sick, sore, lame and disabled; has suffered and will suffer pain; has been and will be confined to his house,’’ the plaintiff may show that at the time of the trial he was suffering from tuberculosis caused by the injury. . ,</p> <p>A new trial will not he granted upon the ground that the defendant was surprised by the introduction of such evidence when it did not demand a hill of particulars, nor that the complaint be made more definite and certain, nor the withdrawal of a juror, and did not"claim surprise in any manner other than, hy objection to the evidence.</p> <p>Under the conditions disclosed hy the evidence, a verdict of $9,000 is not excessive when the plaintiff, prior to the injury, was earning over $2,000 a year.</p>

Appeal by the ■ defendant, Dorothea Ross, from a judgment of the Municipal Court of the city of Mew'York, borough, of Brooklyn, in favor of the plaintiffs, rendered -on the 5th' day of December, 1906.'

Appeal by the defendant, Milliken Brothers, Incorporated, 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 7th 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 8th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

- Appeal by the defendant, George F. Montgomery, 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 26th day of December, 1906, upon the verdict of a jury, and also from an order .entered in said clerk’s office on the 8th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Taxpayer’s action — suit to restrain illegal audit — audit and payment pending appeal — supplemental summons and complaint -bringing in claimants and asking restitution.</p> <p>When, after the dismissal of the Complaint in a taxpayer’s action brought to. .restrain supervisors from auditing claims based upon rewards alleged tó be illegal, and pending the appeal from such dismissal, the supervisors have aud- ' tied the claims and the county treasurer paid the same, the plaintiff, after a decision on appeal that the claims were illegal, should be allowed to bring in • the claimants by supplemental summons and to serve a supplemental complaint demanding- that the money be returned to the county and that the plaintiff be reimbursed for the proportion illegally assessed against him .and collected.</p> <p>Although the audit and payment aforesaid happened after the commencement of the taxpayer’s action to restrain the same, a supplemental, complaint setting forth the audit and payment and their illegality and asking restitution, does not set out a new and different cause of action from that originally-alleged. It merely states additional facts, happening-subsequent to the service of the original complaint, appropriate to a taxpayer’s action brought under chapter 531 of the Laws of 1881, as amended by chapter 301 of the Lavrs of 1892.</p>

<p>Negligence -- Employers’ Liability Act—, what risks assumed a. safe appliances ■— contributory ' negligence — involuntary movement ■ in time of danger.</p> <p>It seems, that a servant employed solely to' run a stationary engine in a brick yard does not assume, under section 3 of the Employers’Liability Act, the \ risk of injury from uncovered cog wheels on a brick machine which he was directed to oil by the superintendent.-</p> <p>A servant does not assume the risk of his employment if the master has failed tt> eliminate, the dangers thereof by providing reasonably safe appliances. The question of assumption of risk under the Employers’ Liability Act is One of fact.</p> <p>A stationary engineer called upon. ,to oil the exposed- cog' wheels of a brick ■ machine is not required to exercise the.best judgment possible as to where he should stand, but is only called upon to use the degree of care which might be • expected from a person of reasonable prudence engaged in the same occupation.</p> <p>A servant called' upon to oil cog wheels on a brick machine, which, through the negligence of the master were not furnished with a guard, is. not guilty of contributory .negligence’ as a matter.of law, because, when seeing a stone falling from the hopper above,, he made an involuntary movement, through which his arm was caught in the cogsj even though there, was a platform surrounding the hopper under which he could have stepped. ' . ■</p>

Appeal by the defendant, William L. Moyer, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of ¿he clerk of the county of Westchester on the 3d day of June,. 1907, upon the decision of the court, rendered after a trial at the'Westchester Special Term, overruling’ the defendant’s demurrer to the complaint.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the Office of the clerk of the county of Kings on the; 14th 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 2d day of March, 1907, denying the defendant’s motion for. a new . trial -made upon the minutes.

Appeal by E, Daniel Miner 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 11th day of October, 1907.

<p>'Municipal corporation — requirement that municipal contracts he let to lowest bidder —action for damages.</p> <p>Even though a municipal corporation, in violation of a' charter provision requiring municipal-contracts' to he let to the lowest responsible bidder, has awarded a contract to a higher bidder, the lower bidder cannot'maintain an action . against the municipality to recover loss.of profits.</p> <p>This, because no contractual relation exists, the charter provision being intended for the benefit of taxpayers, not for the benefit of bidders.-</p> <p>It seems, that the remedy of the - lowest, responsible bidder under such circumstances is to enjoin the common council from making an award to higher bidders. '</p>

Appeal by the plaintiff, James H. Murphy, 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 9th day of September, 1907, canceling and discharging of record, pursuant to section 1268 of the Code of Civil Procedure, a judgment theretofore recovered by the plaintiff against the defendant.

Appeal by the plaintiff, Max Maverson, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 27th day of June, 1907.

Appeal by the defendant, John R. Stout, from a judgment of the Municipal Court of the city, of New York, borough of Brooklyn, in favor of the plaintiff, rendered bn the 10th day of July 1907. ■ *

■ Appeal by Arthur- H. Cameron,, the receiver, etc., of the firm of Walter Adams & 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 Queens on- the 11th day of September, 1907,. -

■ Appeal by the defendant, The New York City Bailway Company, from an order of the Supreme Court, unade at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of July; 1907.-

<p>Appeal by the defendant, Miriam C, Devoe, 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 March, 1907, upon tlie decision of the court rendered after a trial at the -Westchester Special Term.</p>

Appeal by the defendants, Walter H. Brown and others, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the lltli day of October, 1907.

Appeal by the defendant, Henry O. Havemeyer* from a jiidg* ment of .the Supreme Court in'favor of the plaintiff, entered in the office of the clerk of the county of Queens on the loth day of April, 1907, upon the verdict of a jury for $3,500, and also from an order entered ini said clerk’s office on the 3d day of Hay, 1907, denying the defendant’s motion for a new trial made. upon the minutes.

<p>Evidence — testimony of agent in another action when inadmissible — prejudicial error.</p> <p>In an action against a corporation to restrain the use of “mud blasts,'* it is error to allow the plaintiff, over objection, to read testimony given by the defendant’s president in another action, to which the defendant was not a party, showing that the use of mud blasts was not economical or necessary.</p> <p>The president of a corporation is simply its agent for limited purposes, and his declarations are only admissible against the corporation when they are part of the res gestee as to the subject of the inquiry.. They must be made not only during the continuance of the agency, but in regard to a transaction pending at the very time. _ . .</p> <p>Such error is not cured by the fact that the defendant subsequently called its president as a witness, if his' testimony related to matters different from those involved in the other action.</p> <p>The introduction of such incompetent testimony will be deemed to have been prejudicial when the trial court predicated findings of fact thereon.</p>

Appeal by Kate Schramme, as administratrix, etc., of Frederick Schramme, deceased, from an order of the Supreme Court, made, at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 15tlr day of Juñe, 1907, denying the appellant’s motion to be substituted as plaintiff .in the place and stead of Frederick Schramme, deceased.

Appeal by the plaintiff, Margaret J: Franklin, as sole surviving executrix, etc., from -an order of the Sup reine Court, mad'e at the Kings County Special Term and entéred in tli,e. office of the clerk of the county of Kings on the 7th day of June, 1907.

Appeal by the defendant, Francesco Demorio, from a judgment of the Court of Special Sessions of the Second Division of the city of New York, rendered on the 15th day of May, 1907, convicting the defendant of a violation of section 410 of the Penal Code. .

Appeal by the defendant, Leopold Brand, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, .rendered after a trial before the court without a jury.

Appeal by the defendant, August G. Grauer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of May, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, The Green Fuel Economizer Company of Matteawan, 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 Dutchess on the 21st day of June, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 12th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

’ Appeal by the defendant, the New York Central and Hudson, Biver'Bailroad Company, from a judgment of- the Supreme Court in favor'of the plaintiff, entered in' the office of the' clerk of the county of Westchester on the 22d day of May, 1907, upon the verdict pf a' jury for $7,50Qpand also from an order éntered in said-clerk’s office on the litljikiay of May, 19(37, denying the defendant’s motion for a new trial made upon the minutes. ■ .

Appeal by the defendant, The New York Edison Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 23d day of April, 1907, upon the verdict of a jury for $5,000, 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, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27tli day of June, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, .Martin Quinn, from a judgment of the County Court of the comity of Kings; rendered on .the 15th day of April, 1907, convicting him of the crime of burglary in the third degree,, and also from, an order entered in. the. office of the clerk of the county of Kings on the 11th day of May, 1907, denying the. defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Annie Thornton, 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 10th day of November, 1906, upon the decision of the court, rendered after a trial at the Queens County Special Term, directing the defendant to execute, acknowledge and deliver to the plaintiff a good and sufficient deed, etc., of certain real property.

• Appeal by the defendants, Isaac Cortelyou' and others, from a •judgment of the Supreme' Court in favor of the plaintiff, entered!,in the office of the clerk of the county of Kings on the 25th day .of January, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging the said defendants to ■have no right or title to certain bonds and mortgages therein specified.

Appeal by-the: defendants,.-John B. Bowlands and others, from' . an order of the'Supreme-Court, made at the Kings County Special ' Term and énteTédan-the-office of the-clerk-of. -the-county df Kings on the :19th day df -July, 1.9.07, granting the plaintiff’s motion to. amend the petition and order herein -appointing ■ commissioners to value certain easements and real property.

Appeal by the defendant, The Westchester Traction Company, from an order of the Supreme Court, made at the Westchester Special TePm and ‘ entered in the office of the clerk of the county of Westchester on the 3d day of September, 1907, granting the plaintiff’s motion for leave to serve a supplemental complaint.

■ Appeal by.the defendant, Abraham Slamowitz, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of October,. 1907, granting the plaintiff’s motion to resettle an order, entered in-said clerk’s office on the- 18th day of May, 1,907, . which denied the defendant’s motion to* vacate an order of arrest by reciting in said order of the eighteenth two affidavits of the plaintiff as…

<p>Appeal in each of the above-entitled actions by the defendant, The Federal Brewing Company, from respective orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric" of the county of Kings on the 12th day of July, 1907, respectively, appointing three persons to appraise the value of the petitioners’ stock in the appellant corporation.</p>

Appeal by the defendant, Joseph W. Cushman, ‘from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of Dutchess on the 29th day of December, 1906, upon the report of a referee.

Appeal by the defendant, Henry. Gr. Campbell, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on tlié 20th day of May, 1907.

Appeal by the defendant, Rosa Frankel, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiffs,-render ed. on the 1st day of March, 1907. .

Appeal by the- defendants, James S. Coleman and others, composing the firm of Coleman, Breuchand & Coleman, 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 8th day of June, 1907, upon the verdict of a jury for $6,0.00, and also from an order entered in-said clerk’s office on the 19th day of July, 1907.

Appeal by. the defendant, the Atlas Improvement Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of .the county of Westchester on' the 31st day of July, 1907, upon the report of a referee.

Appeal by the defendant, Isaac Cohen, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 16th day of July, 1907. •

Appeal by Thomas E. Raymond and others, claimants, from certain parts of an order of the Supreme Court, made at the West-Chester Special Term, and entered in the office of the clerk of the county of Westchester on the 3d day of July, 1906, confirming the report of commissioners of appraisal herein.

Appeal by the defendant, Albert Martin, from a judgment of the County Court of the county of Queens, rendered on the 22d day'of March, 1907, convicting the defendant of'the'crimes of robbery in the first degree, grand larceny in the second degree and assault in the second degree,' and also from' an order entered in the office of the clerk of the county of Queens On the 10th day of August, 1907, denying the defendant’s motion for a new trial.

Appeal by the defendant, The City of Mount Yernon, 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 31st day of May, 1907, upon the verdict of a jury for $5,500, and also from an order entered in said- clerk’s office on the 4th day of June, 1907, denying the defendant’s motion for a new tried made upon the minutes.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the County Court of Nassau county in favor of the plaintiff, entered in the office of the cleric of the county of Nassau on the 18th day of May, 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 18th day of May, 1907, denying the defendant’s motion for a new- trial made upon the minutes.

Appeal by the defendant, Roger Ryan, 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 February, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, setting aside a general release and a conveyance of real estate. In June, 1867, the defendant, a Catholic, was married by a justice of the peace in Chicago, 111.

Appeal by the defendant, Albert J. Peyton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county -of Kings on the 2d day of February, 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office nunc fro tunc as of the 30th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, James H. Moran, from certain parts of an order of the Supreme Court, made at the Westellestér Special •Term and entered in the office of the.clerk of the county of Westchester on the 17th day of December, 1907,- passing upon, the validity of certain ballots cast at the village election of officers held in the village of White Plains, in Westchester- county, on the 19th day of Hovember, 1907,

Appeal by thp defendant, the Mew Ttirk and Queens County Bailway Company, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the l‘9tli'day of April, Í907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 6th 'day of May, 1907} denying the defendant's-motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Irene Warden, an infant, etc., from a judgment" of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 27th day of December, 1906, upon the verdict of a jury, and also from an order entered in said cleric’s office on the 12th day of January, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Loomis-Manning Filter 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 6th day of April, 1907, upon the .verdict of a jury, and also from an order, entered in said clerk’s office on the 23d day of April, 1907, denying the • defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Joan 27. Cuneo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of February, 1907, upon the verdict .of a jury for $2,500, and also from .an order entered in said clerk’s office on the 20th day of February, 1907, denying ■ the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Annie Bflum, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of April, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits..</p> <p>The defendant let certain premises to the plaintiff for one year . from November 1st, 1904, by a written lease, which contained the following clauses, viz.:</p> <p>“ And it is further agreed by the party of the first part that she will grant a further lease of the aforesaid premises for a term of one year commencing at the expiration of the term herein granted at the same yearly rental and containing like agreements and covenants as in these presents contained conditioned upon the party of the second part giving to' the party of the first part .sixty days’ notice in writing of her desire or her intention to avail herself of said option of renewal.</p> <p>“ And it is further agreed that the party of the. first part hereby agrees to sell the premises herein described to the party of the second part for the sum of ten thousand, five hundred dollars ($10,500), or the house and three lots or sixty feet of the herein let premises for $8,500.00 except that should the party of the second part give the requisite sixty days’ notice in writing to the party of the first part of her intention to avail herself of the option of renewal and should the party of the first part or her husband die during said sixty days before expiration of the term herein granted, then the party of the first part or her executors may, upon obtaining a bona fide purchaser for the said premises, sell the same after having first given party of the second part the opportunity to purchase them at the price offered by such bona fide purchaser.”</p> <p>The plaintiff gave the sixty days’ notice in writing of option to renew for another year in due time by the following letter, viz,:</p> <p>“New Yoek, Aug. 25, 1905.</p> <p>“Dear Mbs. Spenceb: — Owing to the unsettled condition of my business affairs, I have decided not to conclude the matter of purchasing your property at this time, as I may be called West before next year, and I would not care - to have any entanglement which would bind me to the East. However, I desire to renew my lease for another year as provided therein. In this connection, Mr. Washington Smith will call on you at your convenience.</p> <p>“ Please advise when it will be convenient for him to call, and very much oblige, '</p> <p>“ Kespectfully yours,</p> <p>“H. D. PFLUM.”</p> <p>On August 31st, 1906, the plaintiff gave written notice to the defendant of her election to purchase the premises on the terms agreed upon in the said lease, and that she required the defendant to deliver to her a conveyance thereof.</p> <p>■ The defendant refused, and this suit was brought to Compel her to make such' conveyance.</p>

<p>Trust — action by beneficiary to set aside fraudulent conveyance by trustee — statutes inapplicable.</p> <p>A suit to annul a fraudulent conveyance of trust property and to follow the same or its proceeds may be maintained, without authority of any statute, by the cestui que trust against an executor or any trustee of an express trust and his fraudulent grantee or vendee.</p> <p>Such action does not lie merely because the cestui que trust may require the executor to account on his j udicial accounting for the full value of the property, notwithstanding the fraudulent, sale.</p> <p>Section 7 of the Personal Property Law and 'section 383 of the Real Property Law, and the statutes whence these sections were derived, have no application > to such action brought by a cestui que trust against the trustee and his grantee.</p> <p>The case of Magoun v. _ Quigley (115 App. Div. 336) to the contrary not followed.</p>

<p>Building contract—evidence — measure of damages — sub-contracts not admissible.</p> <p>On the breach of a building contract by the owner who prevented the contractor from performing, the latter cannot show, on the question of damages, the profits ■ on sub-contracts made by him.</p>

<p>Husband and wife — divorce — validity of foreign decree — limitation of action — when offense yleemed to be “discovered” — General Rule 73 and section 1758 of the Code of Civil Procedure construed. ,</p> <p>The courts of this State will not recognize the validity of a foreign divorce obtained against a resident of this State on the ground of desertion where process was served by publication without personal service upon the defendant, either within or without the foreign State, and where the defendant had no notice of the commencement of the action or of the application for the decree until after it had been entered.</p> <p>Rule 72 of the General Rules of Practice providing, in substance, that in an action for divorce where the defendant was living in adulterous intercourse it must be alleged in the complaint that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff, etc., applies only where the defendant makes default and has no application to contested actions. .</p> <p>General rules, of practice adopted by the court must not be inconsistent with the provisions of the Code of Civil Procedure, and no rule can enlarge or abridge rights conferred by the Code itself.</p> <p>A decree of divorce should not be denied upon the ground that the action was not commenced, as required by section 1758 of the Code of Civil Procedure, within five years after the discovery by the plaintiff of the offense charged, where the proof shows that the defendant after deserting the plaintiff in 1891 obtained a void divorce in Florida in 1896, and the plaintiff, though hearing he had married, after using every effort did not find out with whom the marriage was contracted, where it took place or where the defendant was located, except in an indefinite way, until through the efforts of her brother she learned these facts in 1902 and brought her action within five years thereafter.</p> <p>“Discovery” means something more than mere suspicion; it implies a certain degree of knowledge on the part of the person to bé charged with the consequences of such discovery.</p> <p>Gaynor and Jenks, JJ., dissented, with-opinion.</p>

Appeal by the defendant, Marcellas F. Mayo, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of July, 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 Eockland Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eockland on the 13tlv day of May, 1907, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 7th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The City of New York 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 Kings on the 2d day of August, 1907, upon the decision of . the court rendered after, a trial at the Kings County Special Term overruling the defendants’ demurrer to the complaint.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. The defendants are stockbrokers in New York city, and members of the Stock Exchange there. They received by telegraph an order from one Mitchell, a stockbroker in San Francisco, California, to purchase 40 shares of stock as follows : “Buy 40 Union Bag & Paper market for delivery.

Appeal by the defendant, Bernard J. Isecke, from a judgment of the Municipal Court of the city of Mew York in favor of the plaintiff, awarding $448.68 damages.

Appeal by the defendant, The Brooklyn Heights Bailroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 5th day of February, 1907.

Appeal by the defendant, ,The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of May, 1907, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 22d day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes. '

Appeal by the defendant, The City of Mount Vernon, from a judgment of the. County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of January, 1907, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 23d day of January, 1907, denying the' defendant’s • motion for a new trial made upon the minutes.

Appeal by the petitioner, Westminster Realty Corporation and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the comity of Kings on the 16th day of September, 1907, adjudging the appellants guilty of contempt of court and lining them therefor, directing their imprisonment on failure to pay the fine.

Appeal by the defendant, the Tiffany Studios, 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 30th day of April, 1907, upon the verdict of a jury for 5,000, and also from an order entered in said clerk’s office on the 15th day of May, 1907, denying the.defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Solomon Frank, 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 27th day of April, 1907, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.

Appeal by the plaintiff, John D. Fouquet, from a judgment of the Supreme Court in favor of the. defendant, entered in the office of the cleric of the county of Dutchess on the 18th day of January, 1901, upon the dismissal of the complaint- by direction of the court after a trial, at the Dutchess County Trial-Term, the jury having theretofore rendered á verdict in favor of the plaintiff,-and also .from an order entered in said cleric’s office on the 11th day of January, 190Y,…

Motion by the plaintiffs, Frances C. Duryea and others, as executors, etc., to resettle and amend an order of reversal granted by the Appellate Division. (See 121 App. Div. 560.)

<p>Appeal by the defendants, Max J. Perlman and another, from a ■ judgment of tlie Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the itliyday of June, 1907, pursuant to an'order entered in said clerk’s office on the 4th day of June, 1907, granting the plaintiffs’ motion for judgment upon the ground that the answer interposed by the appellants was frivolous and sham, and also from the said order upon which the judgment appealed from was entered.</p>

<p>Deposition — examination before trial — statute and. rule construed — when testimony sought material — sufficiency of moving papers.</p> <p>The requirement of section 872 of the Code of -Civil Procedure that on an. application to examine a party before trial his “testimony” must be shown to be material and necessary means the same thing as the requirement of rule 82 of the General Rules of Practice that his “examination” must be shown to be material and- necessary.</p> <p>As a defendant who is alleged to have ridden over and injured'plaintiff’s ward who subsequently became mentally incompetent, was present and saw what happened, his evidence may be deemed to be material and may be taken before ' trial if necessary.</p> <p>Such examination should not be denied on the -theory that the examination of the adverse party is not necessary because the facts can be testified to by other witnesses, nor need the moving affidavit state that the party has no other witness.</p> <p>The moving papers on such an application need not. state specific facts as to which. an examination is desired, for a party has the right to examine his adversary as to all the facts.</p> <p>Such examination should not be denied upon the ground that it is an attempt to ascertain whether the plaintiff has a case.</p> <p>The right to an examination of a party before trial should not be harassed and thwarted by the mass of technical and minute decisions on the subject.</p>

Appeal by the plaintiff, 'Experience M. Conover, from a judgment of tlie, Supreme Court in favor of tlie defendants, entered in . the office of the cleric of tlie county of Kings on tlie 15th day of March, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing tlie complaint.

<p>Appeal by the defendant, Zeanibria Carvelto, from a judgment of the Court of Special Sessions of the Second Division of the city of New York, rendered on the 28th day of January, 1907.</p>

Appeal by the defendant, Elizabeth Koern§r, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the-county of Nassau on the 6th day of Mays 1907? upon the decision of the .court' rendered after a trial at the Nassau Special Term.

Appeal by the defendants, Robert Hoe and another, doing business under the firm name, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of. the county of Queens on the 14th day of Movember, 1907. ■ ' •

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the-county of Kings on the 25th day of April, 1907, upon the verdict of a jury for $1,500,' and also from an order entered in said clerk’s office on the 9th day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by The City of Mew Rochelle from a judgment and order of the Supreme Court in favor of the claimant, entered in the office of the clerk of the county of Westchester on the 'Tth day of July, 1906, upon the decision of the court rendered after a trial at the Westchester Special Term, and also from an order entered in said clerk’s office pn the 18th day of February, 1905.

Appeal by the plaintiffs, George Tyndall and others, by their guardian ad litem, 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 1st day of November, 1906, upon the decision of the court, rendered after a trial before the court without a jury at'the Kings County Trial Term, dismissing the complaint.

Appeal by the defendant,- the Central Building 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 9th day of April, 1907, upon the verdict of a jury for $10,000,. and .also from an order entered in said clerk’s office on the 8th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants^. Ann ora L. McCullough and another, as administrators, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28tli day of January, .1907, upon the decision of the court, rendered after a trial, at the Kings -County Special Term. George W. McCullough had his money deposited in- the Williams-burgh Savings Bank in his sole name.

Appeal by the defendants, Thomas Darlington and others, as commissioners, etc., and the Department of Health of the City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of March, 1907, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendants, William. O. Miles and another, from a judgment of the County Court of Kings county, rendered on the 23d day of April, 1906, convicting the said defendants of the crime of conspiracy, and also from an order entered in the office of the clerk of the county of Kings' on the 23d day of April, 1906, denying their motion for a new trial.

Appeal by the plaintiff, Abraham Teller, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 9th day of January, 1907.

<p>Life insurance — when foreign policy construed under laws of this State — insurance taken by wife on husband’s life —when proceeds payable to wife’s estate.</p> <p>A contract of life insurance issued by a foreign corporation, providing that it shall not take effect until signed and the premiums settled according to the rules of the company, will be construed under the laws of this State, where application therefor was made at a branch office of the insurer located here, and the policy received through and the premiums paid at said'office.</p> <p>The proceeds of a policy of insurance taken out by a wife on her husband’s life, which describes her as being “ the assured,” and is payable to “said assured, her executors, administrators and assigns,” belong to the estate of the wife, although she died before her husband and made him her sole legatee and devisee. The executor of the husband is not entitled to the proceeds.</p> <p>Woodward, J., dissented, with opinion.</p>

<p>Appeal" by Richard J. Reidnig, as administrator, etc., from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 26th day of September, 1907.</p>

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

Appeal by the defendants from a j udgment of the Supreme Court in favor of the plaintiff, dated the 30th day of March, 1907, and entered in the Kings county clerk’s office upon the decision of -the. court rendered after a trial at the Kings County Special Term. Judgment affirmed, with costs, upon the opinion of Mr. Justice Kelly at Special Term. Woodward, Jenks, Hooker, Gay nor and Rich, JJ., concurred.

Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough' of Brooklyn, in favor of the plaintiff for the surd of $119.40, damages and costs. The case was tried without a jury.

Judgment and order affirmed, jvitli costs. All concurred, except McLennan, P. J., who dissented in a memorandum, and Williams, J., who.dissented.

Appeal frorn^a judgment of the Supreme Court, entered in the New York county clerk’s office on the 25th day of July, 1907, after a trial at Trial Term without a jury.

<p>Mechanic’s lien —foreclosure —proof of counterclaim, for defects in doors añdpanels — new trial—failure of trial court to follow opinion of Appellate Division — stare decisis—failure of Appellate Division to follow former decision.</p>

<p>Party—motion to intervene as defendant denied, — moving papers insufficient'..</p>

■Appeal from a judgment in favor of the defendant, entered on the 1st day of December, 1906, in an action for the specific performance of a contract. Judgment affirmed; with costs.