Volume 124 — New York Appellate Division Reports

Appeal by Bobert Caterson 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 27tli day of March, 1907.

<p>Evidence — landlord and tenant — when custom as . to moving day admissible.</p> <p>In an action to recover .rent from a tenant who vacated the last of April, although bound for a term of one year from September first at a mpnthly rent, the defendant, claiming a release, testified that he told the plaintiff when he asked the latter to release him “that this was the moving season, that the first of May would be the time when tenants took the new property,” and the plaintiff replied that “he did not think there would be any trouble .in renting pie place' there now.” This conversation was denied by the plaintiff, and he offered to prove that steam-heated apartments of the class involved were not rented on May first but on October first.</p> <p>Held, that it was error to exclude such evidence as it tended to show that it was improbable that the plaintiff admitted that May first was the renting day or accepted that as a moving cause for his consent to release the defendant on payment of the April rent.</p> <p>Hooker, J., dissented, with opinion.</p>

Appeal by the defendants, John Morrison and another, from a judgment of the Court of Special Sessions of the Second Division of 'the city of New York, rendered on the 11th day of June, 1906, convicting the defendants of the crime of petit larceny.

Appeal by the defendant, the New York and Queens County Railway 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 28th day of November, 1906, upon the verdict of a jury for $1,000, and also from an order-entered in said clerk’s office on the 26th day of November, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Rearshment of an appeal by Henry M. Collyer, as administrator, etc., from a decree of the Surrogate’s Court of the county of West-Chester, entered in said court on the 29th day of December, 1906. (See 120 App. Div. 894; 121 id. 914).

Appeal by the defendants, J. Esler Eckerson 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 Rockland on the 6th day of August, 1907, continuing a temporary injunction pendente lite.

<p>Appeal by the plaintiff, Patrick Ward, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the.county of Kings on the 30th day of-March, 1907, upon the dismissal of the eopiplaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 14th day of March, 1907, as modified by an order entered on the 26th day of March, 1907, directing the1 dismissal of the complaint.</p>

<p>Appeal by the defendant, the Onward Construction Company, from an order of the Supreme Court, made at the Kings County Special Term • and entered in the office of- the cleric of the county of Kirigs on the 17th day of May,. 1907, denying, the defendant’s motion for a new trial and. for leave to serve a proposed supplemental answer.</p>

<p>Damages — negligence — allegations of injuries not covering appendicitis —evidence of special damage.</p> <p>Evidence that the plaintiff was operated upon for appendicitis four weeks after an accident is inadmissible under an allegation that plaintiff was hurt, bruised and injured “in his back, head "and side, causing him to be made sick, sore and lame, and be permanently disabled,” when it is not shown that the appendicitis was the necessary and direct result of the injury.</p> <p>Special damages not necessarily and directly resulting from an injury cannot be recovered unless specially pleaded.</p>

Appeal by the defendant, The Norwich Pliarmacal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 15th day of August, 1906, Upon the verdict of a jury for $5,000, and also from an or del* entered in said clerk’s office on the 15fcli day of August, 1906, 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 an order made by the county judge of Columbia county and entered in the office of the clerk of said county on the 9th day of July, 1907, denying the defendant’s motion to vacate a prior order granted by said county judge for the examination of the defendant corporation, through its secretary, before trial.

Appeal by the plaintiff, John McDonough, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 4th day of April, 1907, upon the dismissal- of the complaint by direction of the court at the close óf the plaintiff’s^ case upon a trial at the Franklin Trial Term, and also from an order bearing date the 1st day of April, 1907, and entered in said clerk’s office denying the plaintiff’s motion for a new…

Appeal by the defendants, the Northern Central Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 10th day of April, 1906, upon the decision of the court, rendered after a trial at the Broome Special Term, adjudging the plaintiff to be entitled to recover $198.60 and in addition fifty' cents per day, payable monthly, during his natural life from the Pennsylvania…

Certiorari issued out of the Suprezne Court and attested on the 3d day of June, 1907, directed to the Board of Railroad Ooramissioncrs of the-State of New York and George W. Dunn and others,, as Railroad Commissioners, of the State of New York, etc., commanding them to certify and return ,to the office of the clerk of the county of Albany all and singular their proceedings had in .relation to the application of the Cooperstown and Northern Railway Company for a certificate…

Appeal by the defendant, The ¿Etna Indemnity Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 19th day of January, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes. '

<p>Banking —false report by directors — remedy of defrauded purchaser of stock — Federal statute exclusive — measure of damage.s.</p> <p>As the National Bank Law declares the duties of directors in making and publishing reports, creates a liability for the "violation of such duties and establishes within itself the exclusive rule and standard for the enforcement of such liability, a recovery must rest exclusively upon the statute and not upon principles of the common law. However, as the common-law requirements in this State to sustain’an action for fraud are the same as the statutory requirements for the maintenance of this action, a judgment in an action against such direc. tors, tried and determined in accordance with common-law principles for pub-fishing a false report which induced the plaintiff to purchase stock in the bank will not be reversed when the case, both as to pleading and proof, meets the statutory requirements, especially when defendants do not claim to have been .prejudiced by the theory upon which the action was tried. A right decision will not be reversed merely because a wrong reason has been assigned therefor.</p> <p>Where a recovery has been had for the full amount of the purchase price of stock, based on the fact that the Comptroller notified the bank that its capital stock was exhausted and required an assessment for the full' amount, and it appears that of the assets criticized by the Comptroller in his warning letter to the bank practically one-half have been collected, and it is only, in reference to those assets that any scienter on the part of the defendants has been proved, the actual value of the stock should.be deducted from the judgment.</p>

Appeal by the plaintiff, James B. Swing, 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 Chemung on the 9th day-of January, 1907, upon the décision of the court, rendered after a trial, at the Chemung Trial 'Term, dismissing .the complaint upon the merits, a jury having been waived,

Appeal by the plaintiff, Jesse Stiles, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on' the 3d day of December, 1906, upon the report of a referee.

<p>Appeal by the plaintiff, Levi Hayne, and by the defendant, William E. Yan Epps, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 14th day of February, 1907, Upon the verdict of a jury rendered by direction of the court after, a trial at the Schenectady Trial Term, and also an appeal by the defendant from an order entered in said clerk’s office on the 12th day., of March, 1907, denying the defendant’s motion for a- new trial made upon the .minutes.</p> <p>The case oh a former appeal is reported inTlé Appellate Division, 278, where the-facts are stated. •</p>

<p>Appeal by Marsena H. McIntyre and another from an order of the County Court of Broome county, entered in thé office of the clerk of said county on the 27tli day of November, 1906, declaring the absolute title in fee to certain premises to be vested in the respondent. ‘ . \</p>

Appeal by the defendants, Benjamin Hurd and another, from an interlocutory judgment of. the Supreme'Court in favor'of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 26th day of March, 1907, upon the decision of the court, rendered after a tidal at the Saratoga Special Term, sustaining the plaintiff’s demurrer to the first separate defense set forth in the defendants’ amended answer.

Appeal by the defendant, the F. N. Burt Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Montgomery on the -16th day of July, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Edward L. Harder and others from an order of the Surrogate’s Court of the county of Columbia, entered in said Surrogate’s Court on the 23d day of July, 1907, affirming an order entered on the 3d day of May,. 1907,, assessing a transfer tax upon a legacy to the appellants.

Appeal by ■ the defendant, Charles L. White, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 10th day of June, 1907, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, sustaining the plaintiff’s demurrer to the second and third defenses set up in the amended- answer.

Appeal by the claimant, Oliver A, Quayle, from a judgment of the Court of Claims of the State of New York in favor of the defendant, entered in the office of the clerk of said court on the 2$th day of January, 1907, dismissing the appellant’s claim.

<p>Bills and notes — liability of retired partner on promissory note — surety — bankruptcy — when failure to demand division of assets immaterial — part payment by debtor not as surety’s agent — partnership — estoppel of partner frbm showing retirement — Statute of Limitations — facts showing actual notice of retirement — burden of proof.</p> <p>Where members of a firm liable upon a promissory note sell out their interest in the firm they become merely sureties on the note while the members of the new firm become the principal debtors. Although the creditor accepts the new firm as the primary debtor, such sureties are not thereby released.</p> <p>It' is immaterial that in presenting a claim for the amount of such note in bankruptcy proceedings against one of the remaining members of the firm the plaintiff did not insist that the firm and individual assets of such bankrupt should be separated, and the claims classified accordingly, where it does not appear that plaintiff received a smaller' amount because she failed to make such demand.</p> <p>Although a surety tells the principal debtor to pay the interest on a note he does not thereby make the debtor his agent, nor ratify the payment so as to delay the running of the Statute of Limitations on his liability on the note.</p> <p>The rule that a former partner is estopped from showing his retirement in order to escape liability as to new transactions with old customers who have been given no notice of liis retirement, does not apply where it appears that such a customer had actual notice of his retirement.</p> <p>In an action brought in 1904 on a firm note for §20,000 against the executor of a-retired partner it appeared that the holder was the sister-in-law of the deceased partner; that the succeeding members of the firm were her son and son-in-law, and that they all lived within a short distance of each other. The defendant’s, testator .retired from the firm in 1896. On January 1, 1897, plaintiff accepted a check in payment of interest which showed that the name of the firm had been changed. Ho interest was paid after 1898, but plaintiff made no claim against the deceased. The plaintiff was sworn as a witness, but withdrawn, without giving any testimony.'</p> <p>Held, that the inference is irresistible that on January 1, 1897, plaintiff knew, that the deceased had retired from the firm, and, if so, this action is barred by the Statute of Limitations. *</p> <p>Under the circumstances plaintiff was not excused from testifying that she received no notice on the theory that the burden to show notice was upon the defendant.</p> <p>Cocheaste, J., dissented.</p>

Appeal by the plaintiff, Grace M. Lake, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Washington on the 14th day of October, 1907, denying a motion to set aside a judgment of divorce and for other relief.

Appeal by the defendant, George R. De Silva, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office óf the clerk of the county of Ulster on the 11th day of June, 1907, upon the decision of the court rendered after a trial at the Ulster Trial Term, a jury having been waived. The plaintiff alleges that she gave the defendant certain moneys for safekeeping, and that he promised to return the same to her with interest upon demand.

Appeal by the plaintiff, John F. Slater, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Schenectady on the 17th day of. June, 1907, directing a' cancellation of the notice of the pendency of the action.

Appeal by the defendants, Franklin B. Beers and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 26th day. of February, 1907, upon the decision of the court rendered after a trial at the Albany Special Term.

Appeal by the plaintiff, Sarah E. Kelly, from a judgment of the Supreme Court in favor of the defendant executors, entered in the office of the clerk of the county of Albany on the. 9th day of July, 1907, upon the decision of the court, rendered'after a trial at the Albany Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, the Hudson Biver Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 21st day of November, 1906, .upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of Hovember, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by'the plaintiff, Richard. J. .Cullen, from- a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 14th day of June, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the St. Lawrence Trial Term.

<p>Appeal by the defendant, the Andrew J. Robinson Company, from a judgment of. the Supreme Court- in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 25th day of July, 1907, upon the verdict of a jury for $9,000, and also .from an order entered in said clerk’s office on the 25th day of July, 1907, denying the defendant’s motion' for ;a new trial made upon the minutes.</p> <p>The defendant corporation, a contractor, was constructing a ten-story building. Plaintiff was in the service of the defendant and at work on the seventh floor of said building. Work was also being performed on one or more of the floors above. In each of the various floors were openings directly over each other.. Over the opening in the seventh floor there were temporarily placed plank to support a barrel of water filled by a pipe which came up from below. . Plaintiff in the performance of his duties was procuring a pail of water from said barrel when a brick tile fell from above and severely injured him. A judgment in his favor because of the alleged negligence of the defendant is now before us for review.</p>

Appeal by the defendant, Caroline A. Schaettlei'j as executrix, etc., from an order' of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Eew York on the 20th day of December, 1907, granting the plaintiff’s motion to amend the summons and complaint herein by striking.from the title of the action the words “as executrix of the last will and testament of Ferdinand Schaettler, deceased,” upon the payment of seventy-five…

Appeal by the defendant, William G. Reid, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New Tork on the 10th day of June, 1907, upon the verdict of a jury for $1,750, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by James F. Sullivan 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 19th day of June, 1907, overruling exceptions to the report of a referee and confirming the same; directing a recovery from William H. Sullivan, a plaintiff in the action, in the sum of $698.97, and a recovery from James F. 'Sullivan, also a plaintiff in the action, for a like sum, and a. recovery against…

Appeal by the defendant, Isidore Isaac, 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 24th day of May, 1907, upon the verdict' of a jury, and also from an order entered in said clerk’s office on the 17th day of June, 1907,. denying, the-defendant’s motion for a new trial made upon the minutes.

Appeal by the'petitioiier, Adolphe H. Benoit, from an order of the Supreme Court,- máde at the New York Special Term and entered- in the office of the- clerk of -the county o£ New York on the 15th day of November, 1907,' denying the petitioner’s motion to have a certain judgment canceled and discharged of record.

Certiorari issued out of the Supreme Court and attested on the 14th day of June, 1907, directed to Edmond J. Butler, as commissioner of the tenement house department 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 the removal of the relator from the position of inspector of tenements in'said department.

<p>Certiorari—adoption of rules by port wardens—executive not judicial act — objections to rules stated and examined.</p> <p>The exercise by the board of port wardens of -the authority conferred by section 2126 of the Consolidation Act which .gives them power to make and .establish such rules, orders and regulations not inconsistent “with the Constitution and laws of this State or of the United States or thé provisions of this title,” is an executive or administrative act, not judicial, and is not subject to review by certiorari although the act of the board in enforcing an .unauthorized rule would be subject to such review.</p> <p>The objections to the rules adopted by the board examined for the-purpose of showing the impropriety of attempting such a review by certiorari and also for the purpose of showing that they are without merit.</p>

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

<p>Municipal corporations — public and corporate duties — building department— negligent approval of plans —nuisance —collapse of building . —liability of city — liability of owner—employment of independent contractor.</p> <p>The building department of the city of New York performs a public service in which the city has no private or corporate interest and its negligence in approving defective building plans does not render the city liable.</p> <p>A municipal corporation is not liable to a person injured by the collapse of a . building for failure to pass or enforce an ordinance relating to the construction of buildings which would have prevented its collapse.</p> <p>The duty of a municipal corporation to keep its streets in. a reasonably safe condition for public travel" does not render it liable to a person injured by the collapse of a defectively constructed building where the person injured was in the building and not in the street at the time of its fall.</p> <p>The owner of a building in process of construction is not liable to a person injured by its collapse where the work was done by an independent contractor over whom it exercised no control or superintendence, in the absence of proof that the owner was negligent in selecting the contractor or in adopting its plans and specifications. •</p>

Certiorari.issued out of the Supreme Court and attested on the 22d day of April,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 the dismissal of the relator from the police department of the city of New York.

Appeal by the defendant, Henrietta Hahn, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York oh: 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 17-th day of January, 1907, upon tile verdict of a jury, with notice of an intention to bring up for review upon such appeal the said judgment…

Appeal by the defendants, Gustave M. Minzesheimerand another, 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 2M day of June, 1907, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 20th day of June, 1907, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the American Lithographic 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 26th day óf February, 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 February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tile county of New York on the 13th day of April, 1906, upon the verdict of a jury for'$22,450.10, rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, the New York City Railway Company, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 21st day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 31st day of January, 1907, directed to William E. Stillings, chairman, and others, as commissioners, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings'had in relation to their decision in dismissing, for want of jurisdiction, a certain claim for damages filed by the relator. -

Appeal by the defendant, the New York, New Haven and Hartford Eailroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1907, upon the. decision of the court, rendered, after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to' the third separate defense of new matter contained in the defendant’s answer.

Appeal 'by the defendant, the O’Rourke Engineering Construction 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 23d day of January, 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 25th day of January, 1907, denying the defendant’s motion for a. new trial made…

Appeal by the defendant, George B. McClellan, 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 8th day of January, 1908.

Application by the relator; William Hamnierstein, for a peremptory writ of prohibition upon the return of an alternative writ of prohibition issued out of the Appellate Division directed to James A. O’Gorman, a justice of the Supreme Courts and Theodore A. Bingham, as police commissioner, restraining them from taking any action in a proceeding to revoke a theatrical license issued to the relator. ■

<p>Appeal by the plaintiff, Sophia Friend, 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 15th day of June, 1907, upon the dismissal of the complaint upon the merits by direction of the court at the close of the plaintiff’s case on a trial at the.New York Trial Term. -</p>

Appeal by the defendant, Louis F. Haffen, president, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk-of the county of New York on, the 24th day of October, 1907.

<p>Will construed — when posthumous children not provided for or mentioned— right of such child to distributive share.</p> <p>A will which gives all the testator’s property to his wife absolutely, but provides-that in case of her death before the testator “leaving lawful issue her surviving,” the interest which the wife would take, if living, shall on the testator’s death go to such issue in equal portions, cannot be construed as mentioning or providing for posthumous children.</p> <p>Hence, a child born after the death of the testator is, by virtue of the statute, entitled to succeed to the same portion of the estate as would have descended or have been distributed to it if the testator had died intestate.</p>

Appeal by the defendants, The Equitable Life Assurance Society of the United States 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 lltli day of September, 1907.

<p>Insurance — adjustment of loss — fraudulent award—parties — joinder of defendants.</p> <p>A joint action maybe maintained against two fire insurance companies to set aside an award when it is claimed that tlie companies bolding policies in different amounts, joined with the insured in an appraisal of loss, the insured selecting an appraiser to act under both. policies and the companies jointly selecting one, and the two appraisers being unable to agree selected under the terms of the submission an umpire who was induced by improper and illegal practices of the appraiser selected by the companies to join with him in making an unfair and illegal award.</p> <p>While each defendant, issued a separate policy and was liable only by the terms of its separate contract, both were interested in the common object of reducing the award and in equity it is proper to join as defendants in one action different persons whose independent or joint acts combined to produce the injury.</p> <p>Where an appraisal in behalf of several insurance companies is fraudulently made, one company innocent of the fraud is'not. protected by it because the award is fdr the benefit of all and is vitiated by the fraud of one.</p> <p>It is proper for the complaint in a suit to set aside such award fixing the amount Of loss under two policies issued by different companies to ask that, if the award be set aside, each defendant be adjudged to pay the loss in proportion to the amount of its policy, as equity having acquired jurisdiction will afford complete relief. ■</p> <p>Scott, J., dissented..</p>

Appeal by the defendants, Herbert Lambourne and another, 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 29th day of Hay, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, enjoining the defendants from, in any manner or way using the name, title or trade mark of the plaintiffs, or any words or name similar to the words or name used by the plaintiffs.

Appeal by the -plaintiff, Tracy W,. Draft, from an order of' .the Supreme Court, made at tile-New York Special Term and entered in the office of the clerk of . the county of New York on the 2.4th day of June, 1907, denying the plaintiff’s motion for relaxation of . costs,

<p>Appeal by the defendant, the German-American Button Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1907, denying the defendant’s motion to change tlie place of trial of the action from the county of New York to the county of Monroe for the convenience of witnesses.</p>

<p>Appeal by the plaintiffs, Johannes E. Scliroeder and another, as ancillary administrators, 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 December, 1907.</p>

Appeal by the defendant, William A. Clark, from an order of the Supreme Court, made at the New York Special Term, bearing date'the 31st day of December, 1907, and entered in the office.'of the clerk of the county of New York, denying the said defendant’s motion to vacate a judgment theretofore entered .herein.

Appeal by the defendant, William A. Clark, from an order of the Supreme Court, made at the New York Special'Term bearing date the 6th day of January, 1908, and entered-in the office of the clerk of the county of New York. ■

Appeal by the defendants, The Equitable Trust Company of New York 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 3d day of July, 1907, granting an injunction pendente Lite.

Appeal by the defendant, The Russian Company for Sea, River and Land Insurance, etc., from so much, of an interlocutory judgment of the Supreme Court in part in favor of the plaintiffs, entered in the office of the clerk, of the county of Revv York on the 5tli day of October, 1907, upon the decision of the court rendered after a trial at the New York Special Term as sustains the plaintiffs’ demurrer to the first and second separate defenses and counterclaims contained in the…

<p>Trust — when discretionary power does not pass to substituted trustee.</p> <p>Personal discretion given to trustees cannot, in the absence of words giving express authority, be delegated to or exercised. by a substituted trustee appointed by the court, unless the exercise of the power depends upon some fact which can as well be ascertained by the court or the substituted trustee as by the trustees originally named.</p> <p>Thus, when testamentary trustees are empowered “to apply such portion of the capital of the trust funds as they may deem advisable to the use ” of beneficiaries named, the discretionary power does not pass to a substituted trustee appointed by the court, for the discretion was wholly personal to the trustees first named and the exercise thereof is not necessary to the execution and furtherance of the trust.</p> <p>Ingraham and Houghton, JJ., dissented, with opinion.</p>

Appeal by the defendants, Burnett Y. Tiffany 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 May, 1907, upon the decision of the court, rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Henry 0. Griffin, from a judgment of the Supreme Court in favor of the defendant, Gustav Ernst, entered in the office of the clerk of the county of New York on the 4th day of December, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint. .

<p>Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk óf the county of New York on" the 6tli day of March, 1907, upon the decision of the court, rendered after "a-trial at the New York Special Term, granting an injunction alternative upon the payment of the damages caused by the defendants’ elevated railroad to plaintiff’s premises, Ro. 849 Third avenue.</p>

<p>Appeal by the plaintiff, Frank E. Phillips, 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 31st day of December, 1903, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint upon the merits.</p>

<p>Appeal by Hester McGarren, widow of Alexander McGarren, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 27th day of November, 1907, overruling her objections to the administrator’s accounts.</p>

Appeal by the defendant,. Mayer J. Weinstein, 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 7th day of Movember, 1907, upon the decision of the court rendered after a trial at the Mew York Special Term. ■ ■ •

<p>Appeal by the plaintiff, the Pedersen Manufacturing 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 11th day of November, 1907, vacating a warrant of attachment theretofore issued herein.</p>

Appeal by the defendant, Adolph Biesenberg, from a part of an order of the Supreme Court, made at the-New York Special Term and entered in the oEce of the clerk of the county of Bew York on the 20th day of December, 1907.

Appeal by the defendant, Edward J. Gildersleeve, from an order of the Supreme Court, made at the New York .Special Term and entered in the office of the cleric of the county of. New York on the 13th day of December, 1907, denying the defendant's motion to vacate a warrant of attachment herein.

Appeal by the defendant, the Central Mines Development Company, Limited, a Corporation, 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 13th day of January, 1908, denying the defendant’s motion to vacate an order for the examination before trial of the defendant, through its officers, in order to obtain information for the purpose of drafting the complaint.

Appeal by the defendant, Levy P. Roberts, 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 22d day of January, 1908, granting an injunction pendente lité restraining said defendant from interfering with the plaintiff in the prosecution of her business as public stenographer and typewriter in the Murray Hill Hotel in New York city.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 23d day of October,. 1907, vacating a prior order, which affirmed the appraiser’s report, and fixed the amount- of the transfer tax upon the estate of James B. H. Grosvenor, deceased.

Appeal by the defendant, Mazie H. Lá Shelle, a)^ executrix, etc., from .an- order of the Supreme Court, made at the New York Special ■ Term and entered in tbe office of the clerk of the county of New York on the 10th day of December, 1907, granting the plaintiffs . motion for the issuance of a ■ commission to examine a witness ■ without the State. •

Appeal by the defendant, Mazie N. La Shelle, as executrix, 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 10th day of December, 1907, granting the plaintiff’s motion for the issuance of a commission to examine a witness without the State.

Appeal by the plaintiff, E. Lawrence Fell, as president,, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the'county of HeW York on the 13th day of January, 1908, denying the plaintiff’s motion for an injunction pendente lité and vacating an injunction granted ex parte upon an order to show cause.

Appeal by tlie defendant, The American'Hatters and • Furriers’' .Corporation, 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 $5,000, and also from two orders entered in said clerk’s office on. the 24th day of June, 1907, respectively denying the defendant’s respective motions for judgment upon the special findings of the jury…

Appeal by the defendant, the Rational Conduit and Cable 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 29th day. of April, 1907, upon the verdict of a jury for $12,500, and also from an order entered in said cl.erk’s office on the 4th day oi May, 1907, denying the said defendant’s motion for'' a new trial made upon the minutes.

<p>•'Separate appeals by the .defendants, the Interborough Rapid Transit Company and the Rapid -Transit Subway Construction ' Company, from a judgment of the Supreme Court in favor of the plaintiff, ■ entered in the office of the clerk of the county of New York on . the 29th day, of April, 1907, upon the verdict of a jury for $12,500, and also from respective orders entered in said clerk’s office on the 7th day of May, 1907, and on the 17th day of May, 1907, respectively, denying said defendants’ respective motions for a new trial made upon the minutes..</p>

Appeal by the plaintiff, the Cuban Production Company, from a judgment of the Supreme Court in favor of the defendant,- entered in the office- of the clerk bf the county of New York on .the 18th day of June, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

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

Appeal by the plaintiff, William Travers Jerome, from an order - of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of December, 1907, denying the plaintiff’s motion for a struck jury to try the issues herein.

<p>Appeal by the plaintiff, Julius Stern, 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 27th day of December, 1907.</p>

Appeal by the defendant, Karl M. Wallacli, 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 ón the Sd-dfty of May, 19 0Y, upon the decision of the -court rendered after a trial -at: the New York. Special Term.

Appeal by the defendant, The Fourteenth Street Store, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of JSTew York on the 27th day of June, 1907, affirming a judgment of the City Court of the.city of FTew York in favor of the plaintiff, entered in the office of the clerk of said City Court on the 29th day of March, 1907, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Louis Mendelson,'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 1.8thday of October, 1907, upon the dismissal of the complaint by direction of thfe court at the close of' the' plaintiff’s case upon a. trial at.the New York Trial Term.

Appeal by the petitioner, the Attorney-General of the State of New York, from an order of the Supreme. Court, made at the New York Sjoeeial Term and entered In the office of the clerk of the county of New York on the 12th day of August, 1907, denying the petitioner’s application for leave to. bring an action against the, Consolidated Gas Company of New-York. The opinion delivered at Special Term is reported in Matter of Consolidated. Gas Co. (56 Mise. Hep. 49). .

. Appeal by the defendant, Eugene P. Smith, from an order of . the Supreme Court, made at the New York Special, Term and entefed-in the office of. the clerk of the county of New -York on the 13tli day of January, 1908, denying the defendant’s . motion to .change the place of trial from the county of New. York to .the ' county, of,Suffolk on the ground of .convenience of witnesses. ■

Appeal by the plaintiffs, Ardil R. Mersereau and another, individually and as administrators, etc,, from a judgment • of the Supreme Court in favor, of the defendants, entered in the office of the clerk of the county of New York on the 22d day of June,.1907, upon an order made at the New York Special Term dismissing the complaint at the opening of the trial.

• Appeal by the defendant, Henry W. A. Page, 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 April, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, granting the plaintiff a separation, providing for alimony, and giving'to the plaintiff the custody of the children.

Appeal by the defendant, The Republican County Committee of the County 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-2d day of August, 1907, granting a.peremptory writ of mandamus.

Appeal by the defendant, George II. Taylor, from a judgment of the Court of Special Sessions of' the first division of the city of New York, rendered on the 7tli day .of June, 1907, convicting the defendant of a violation of section $0 of the Labor Law (Laws of 1897, chap. 415), as amended by chapter 184 of the Laws of 1903. (See Penal Code, § 3841.)

<p>Appeal by the plaintiff, Harry T. Cause, 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 20th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term and receiving a verdict of the jury on special questions submitted.</p>

<p>Separate appeals by Edith C. Iselin and others, owners, and by the Mew York and Baltimore Transportation Line, as lessee, 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 4th day of October, 1906, overruling objections to the report of commissioners of estimate and assessment herein and confirming said report. ...</p>

Appeal by the defendant, the Metropolitan Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New-York on the 24tli day of January, 1908, suppressing the depositions of Bernard Legendre and Alfred Thievre, together with the exhibits annexed thereto, and declaring the same null, void and of no force and effect, and directing that they be not received in evidence on the trial of the issues herein.

Appeal by the defendant, Jacob Cram, from an order of the. Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of Hovember, 1907, denying the defendant’s motion to vacate an order which denied his motion to set aside a judgment entered against him by default, unless he paid fifteen dollars costs before notice of trial and ten dollars costs of motion within five days, and for leave to renew said…

<p>Appeal by the defendants, John Jordan 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 1st day of July, 1907, upon the verdict of a'jury for $750, and also from an order entered in said clerk’s officé on the 20th day of August, 1907, denying the defendants’ motion for a new trial made upon the minutes. -</p>

Appeal by the plaintiff, Oscar Bluemner, from an order of the Supreme Court, made at the New York Special Term and entered in the office .of the clerk of the county of New York on the 20th day of January, 1908, denying the plaintiff’s motion for leave to serve an amended complaint herein.'

<p>■ Appeal by the defendant, Louis Kotlar, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 27th day of March, . . 1907.</p>

Appeal by the defendant, John L. Bader, as administrator, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of January, 1907.

Appeal by the plaintiff, Andrew Bayley, from a judgment of the Municipal Court of the city of New York in favor of the defendant, dismissing the complaint at the close of the plaintiff’s case.

Appeal by the defendant, Patrick O’Leary, as executor, 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 3d day of May, 1907, upon the verdict of a jury.

Appeal by the plaintiff, Joseph' Sclilegel, from an order 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 December, 1907, permitting the plaintiff to discontinue his action on the payment of the taxable costs and an additional allowance of seventy-five dollars, the appeal being from so much of the order as grants the additional allowance.

Appeal by the plaintiffs, Francis J. Kelly and others, composing the firm, 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 Kings on the 29th day of July, 1907, denying the plaintiffs’ motion for a bill of particulars of the counterclaim contained in the defendants’ answer.

Appeal by the defendant, Virginia Hess, from a final order of the Municipal Court of the'city of New York, borough of Queens, entered on the 16th day of October, 1907.

Appeal by the plaintiffs, David Waters and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, .in favor of the defendants,'rendered on the 11th day of April, 1907.

Appeal by the plaintiff, Frederick H. Kellogg, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 13th day ■ of December, 1907, directing the plaintiff to furnish a bill of particulars.

Appeal by the defendant, the City of Mount Vernon, from a.n •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 6th day of July, 1907, denying the defendant’s motion to vacate a judgment- theretofore entered in this action in favor of the plaintiff.

Appeal by the plaintiff,-R. Louis Lapetina, 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 20th day of. Uovember, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Jennie Feiering, from an order of the County Court of Kings county, entered in the office of .-the cleric of the county of Kings on the 30th day of November, 1907.

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 18th day of April, 1907, upon the verdict of a jury for $2,500, and also from on 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- plaintiff, William Rosenstein, from 'a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 23d day of March, 1905.

Appeal by the defendant, the Metropolitan Street Railway Company, 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 21st day of' June,’ 1907, denying the defendant’s motion to dismiss the complaint herein for failure to prosecute. ' ■ ■

Appeal by the plaintiff, Charles Higgins, from a judgment of the Municipal Court of the city of New York in favor of the defendant, granting a nonsuit at the close .of the plaintiff’s casé.

<p>Pleading — answer — defective denial of knowledge or information — bills and notes — notice of dishonor of check, when sufficient.</p> <p>An answer which “ denies knowledge or information sufficient to form a belief as to the truth in any of the allegations ” in specified paragraphs of a complaint, is insufficient as a denial of those allegations and raises no issue thereon.</p> <p>The provision of section 500 of the Code of Civil Procedure permitting issue on the allegations of a .complaint to be joined by a denial “of any knowledge or information thereof sufficient to form a belief" means that the defendant must deny that he has knowledge or information of such allegations sufficient to form a belief as to their truth. This artificial form of denial must be followed with substantial strictness in order to be good.</p> <p>Notice of the dishonor of a bank check given by telegraph on the second day following the deposit of the check for collection and immediately after the depositor received notice of such dishonor is good, for under sections 174 and 175 of the Negotiable Instruments Law the bank had until the day following to give notice of the dishonor, and by virtue óf section 178 the depositor had until the day following notice to him within which to notify antecedent parties.'</p>

Appeal by the defendant, the Richmond Light and 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 Richmond on the 17th day of May, 1907, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 13tli day of June, 1907, denying the defendant^ motion for a new trial made upon the minutes.

Appeal by the defendant, the United Cloak and Suit Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the ‘8th day of Uovember, 1907, denying the defendant’s motion to change the place of trial from the county of Kings to the county of Onondaga.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered oil the 25tli day of November, 1907.

Appeal by the plaintiff, the Roscoe Lumber Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendants, rendered on the 11th day of February, 1907.

Appeal'by the defendant, Giles S. Allison, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, rendered on the 6th day of March, 1907.

Appeal by the plaintiff, Patrick A. Cronin, an infant, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered m the office of the clerk of the county of Suffolk on the 26th day of November, 1907, granting the defendant’s motion to change the place of trial from the county of Suffolk to the county of New York.

Appeal by the defendant,' The General Accident Assurance Corporation, Limited, of Perth, Scotland, from a judgment of the Municipal' Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 31st day of October, 1907, overruling the defendant’s demurrer to the complaint.

<p>Testamentary trust—words creating separate trust's in undivided lands - .— effect of-termination óf trust before death of testatrix - J no liability , of trustee for rent's — executor not entitled to credit for expenditures as trustee—precatory words — when legacy absolute. ,</p> <p>Where a will devises real property in trust and. directs the trustee to divide the . lands-into as: many equal portions as the testatrix leaves issue her .surviving, a separate trust is created for each child. ' .</p> <p>Where the will provides that one of the trusts shall terminate when the beneficiary attains his majority, and that event happened before the death of the testatrix, no estate vested in the trustee, but the ulterior devise took effect immediately without a conveyance by the trustee subject to the execution of his" power to sell and divide the lands, for which purpose no trust was necessary.</p> <p>A naked trust to sell and divide lands cannot be created.</p> <p>Where the trust as to one of the undivided half portions terminated during the life of the testatrix, the beneficiary becoming vested with the legal title, was entitled to receive one-half of the rents,-but cannot charge the trustee for rents riot collected by him, for he was under no duty to collect the same.</p> <p>But, under the circumstances, the trustee in his collateral capacity as executor,, is not entitled to credit for the payment of a judgment for personal injuries resulting from the fall of a chimney obtained against him on account of. his personal negligence as trustee, nor can he have credit -as executor for a . loss sustained in making an investment as trustee.</p> <p>When after creating trusts as aforesaid the testatrix gives all the rest, residue and remainder of her estate to the executor named “requesting that he make such distribution of the same or any portion thereof,”- as the testatrix shall indicate by memorandum, written direction or otherwise, there is a gift . of the residuary estate to the executor absolutely without imposing upon him any obligation, the testatrix merely trusting him to carry into effect any directions she may see fit to make.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 8th day of January, 1907, directed to Theodore A. Bingham, as commissioner of the police department of the city of New York, commanding him to certify and return to the office of the cleric, of the county of. Kings all and singular his proceedings had in relation, to the removal of the relator from the police department of the city of New York.</p>

The plaintiff, in the first action, made defendant in the second and therein 'counterclaiming on the cause set out in the first action, is not entitled to have the two actions consolidated under sections 817 and 818 of the Code of .Civil • Procedure. ■ The purpose of said sections is to prevent a plaintiff from harassing a defendant . by prosecuting different suits for causes of action which could be joined..

<p>Appeal by-the defendants, John Bahmmuller and another, 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 26th 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 ■ 26th day.of February, 1907, denying the defendants’ motion for a new trial made upon tlié minutes.</p>

<p>Appeal by the plaintiffs, Golde Landsberg and others, from an interlocutory - judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of October, 1907, upon the decision of- the court, rendered after a trial at the Kings County Special Term, sustaining the demurrer interposed by the defendant Bosenwasser to the amended complaint.</p>

Appeal by the defendant, John B. Daley, from an order of the County Court of Dutchess county, entered in the office of the clerk of the county of Dutchess on the 27th :day of .May, 1907, affirming an order of filiation made by the city judge of the city of Poughkeepsie, sitting as amagistrate in bastardy proceedings, whereby lié determined that the defendant Daley was the father.

Appeal by the defendants, William F. Baker and others, constituting the Municipal Civil Service Commission 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 lltli day of December, 1907, granting the relator’s application for a peremptory writ of mandamus.

<p>Husband and wife—separation—dismissal of complaint and counterclaim for divorce — power to award custody of children.</p> <p>Where a husband sued for separation on the ground of cruelty makes a general denial and recriminates by charging the plaintiff with adultery and demands a divorce, and the court although dismissing both the complaint and the-counterclaim finds that the plaintiff left her husband ‘‘without just cause or provocation,” it may. award the custody of a child to the defendant.</p>

Appeal by the plaintiff, William Losclier, 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 10th day of December, 1907, granting the respondent’s motion for a bill of particulars of plaintiff’s two separate causes of action. The complaint sets out separately that defendants falsely accused plaintiff of stealing a stove, and assaulted him.and caused his arrest.

<p>Pleading — action for breach of contract — demurrer to several separate defenses sustained — allegations stating counterclaim for reformation of instrument. -</p> <p>Actiou to recover for breach of contract.</p> <p>The complaint alleged in substance that the plaintiffs sold to the. defendants the entire capital stock of a paper company for a certain sum and released said company from all claims for money loaned to it,' resei-ving, however; certain claims for merchandise specifically set forth. It was further alleged' that the defendants and' the corporation agreed to sell and dispose of the present merchandise owned by said company and collect the present bills and accounts receivable, including accounts receivable from said sale, and, after deducting ^ expenses, to pay the surplus to the plaintiffs; that after due performance by the plaintiffs the defendants violated the agreement in that they failed to sell said merchandise and had appropriated a large part thereof and had unreasonably refused to collect a large number of accounts, but had used them in promoting the business of the company; that the defendants had failed to account for the proceeds of some goods sold, retaining the same, and to conceal their wrongdoing had wrongfully charged the plaintiffs with sums for expenses in excess of those specified in the agreement; and that as the plaintiffs had no adequate remedy at law, the defendants be required to account.</p> <p>Held, that it was no answer to allege as a separate defense that at-the time of the execution of the agreement the defendants insisted that it was ambiguous and inserted certain words which upon the express statement of the plaintiffs that- • the agreement was not ambiguous were stricken out, and that the paper com- - pany had from time to time sold part of the merchandise and collected accounts, paying notes with the proceeds, which payments had' been accepted by the plaintiffs and the notes renewed, the discounts, with the consent of the plaintiffs, being repaid by the company out of their share of the surplus going to the-plaintiffs, and that the defendants have lived' up to the agreed construction of the contract, and that any other construction had not'been claimed by the plaintiffs;</p> <p>That it was' no answer to allege as a separate defense that a balance of the merchandise remained, unsold because of the refusal of the plaintiffs to allow1 it to be sold at the best figures obtainable; that some of the accounts had not. been collected with the consent of the. plaintiffs, and that under the terms of the agreement .the plaintiffs might have forced their collection at any time, but they had failed to do so; :</p> <p>That it was no answer to allege as a separate defense that one of the plaintiffs caused a'certain promissory note to be presented to the paper company as"a balance of the indebtedness to be paid out of the net proceeds of the sale of the merchandise and collection of claims, and that with the knowledge and consent of the paper company the same was paid although" there were not sufficient funds on hand applicable thereto, which payment was in violation of the agreement'-as acted Upon and understood by the parties;</p> <p>That it was no answer to allege as a defense and counterclaim that from time to time payments were made.to the plaintiffs in pursuance of the agreement out of the proceeds of the sale of merchandise and that the defendant company “ was caused ” to make payments, without its knowledge and consent, amounting to a certain sum in excess of the proceeds-received, etc. As no facts were alleged showing fraud or mistake by either party no defense or counterclaim was stated;</p> <p>That it was no answer to allege -as a separate defense and counterclaim that after entering upon the performance of the agreement the defendant company, at the request of the plaintiffs and on their promise to pay, advanced and paid a certaim sum on account of-a certain judgment-recovered against the defendant, which was a debt for which the plaintiffs were liable as an obligation of the old management of the company and that,no» part thereof had been repaid to the defendant.</p> <p>Allegations stated to be “ an affirmative cause of action herein,” examined and held, that tho.ugh improper as to form, they were sufficient to justify a court of equity in reforming the contract, although neither fraud nor .mutual mistake was specified, and, hence, the demurrer thereto should be overruled.</p>

- Appeal by the defendant, the Bankers’ Life Insurance Company of the City of Mew York, from an interlocutory 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 22d day of Movember, 1907, upon the decision, of the court, rendered after a trial at the Mew York Special Term, sustaining the plaintiff’s demurrer to a separate defense contained in the answer.

. Appeal by the plaintiff, Samuel Thompson Banes, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of New York on the’ 6th day of February, 1908, directing the plaintiff to give additional security for costs.

<p>Real property — contract for sale of city lots with buildings construed — variance in dimensions — acts estopping vendee from insisting upon letter of contract.</p> <p>A contract whereby the plaintiff agreed to purchase all that parcel of land in the . county of New York, 346, 348 and 350 St. Nicholas avenue, with the buildings and improvements thereon, each being described as of certain dimensions, “all parcels being the same size, both front and rear, moi'e or leas,” should not be construed to mean that the purchase was according to the quantity of land, but that it was a purchase of three lots already built upon with fixed boundaries open and obvious in bulk.</p> <p>The words “more or less,” as used in such contract, qualify all the-dimensions, not merely the dimensions across the front and-rear.</p> <p>A vendee bound by such contract is not justified in refusing title on the ground that there was a material difference between the quantity of land described in the.contract and that described in the deed tendered, when it appears that the frontage, the most important dimension, was three-quarters of an inch greater than that specified, while the rear was nine and one-quarter inches less, and the width of the three lots, being of various dimensions, showed an average shortage of three feet ten and one-fourth inches, especially where, after the discovery of the shortage by a survey, the acts of the plaintiff tended to show a waiver of the objection.</p> <p>When after learning the actual dimensions by the survey the vendee'induced the , vendor to extend her time and to make material changes in the contract faVor- . able to her and to incur expense in preparing purchase-money bonds and mortgages, her acts were inconsistent with a determination to stand upon her rights under the contract, even though the facts in themselves do not establish a waiver as a matter of law.</p>

<p>Master and servant — contract of employment — evidence showing hiring by week.</p> <p>Action to recover damages for the breach of an oral contract employing the ■plaintiff as a hat trimmer examined, and lield, that the hiring was by the week and not for the season, and that the motive of the defendant in discharging the plaintiff was immaterial.</p> <p>Houghton, J., and Patterson, P. J., dissented, with opinion.</p>

<p>Railroad — negligence — collision with, vehicle at street corner —■ erroneous charge.</p> <p>Plaintiff driving a sprinkling'cart suffered injuries by colliding with the defendant’s surface car while endeavoring to cross the tracks in a diagonal direction. It appeared that going westerly on a cross street he turned the corner into an avenue intending to go south on the westerly side thereof, but did not look for or discover a car north bound on the. avenue until the forward wheels of his ' wagon were near the easterly rail of the track, and the horses had their heads over the westerly rail. It appeared also that it was-not necessary for the plaintiff to cross the track at this precise point.</p> <p>Held, that under the circumstances it was error to charge that when one attempts to cross a street car- track and is at such a distance from an approaching car that he has reasonable grounds to suppose that he will be able to cross, it is the duty of the motorman to give him a reasonable opportunity to do so, and for that puipose to stop or check the speed of the car.</p>

Appeal by the plaintiff, Willard B.. Bottome* from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York oñ the 16th day of May, 1907, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 31st day of January, 1907, and granting anew trial of the action.

<p>Executors and administrators — direction to executor to sell lands — power of administrator with, will annexed — equitable conversion.</p> <p>A direction that executors sell real estate to pay specific bequests and distribute the balance to residuary legatees is not discretionary, but works an equitable conversion of the lands, and the direction inay be carried out by an administrator with the will annexed.</p> <p>A title to lands acquired on such sale by the administrator with the will annexed is marketable;</p>

Appeal by the defendants, The Bankers’ Trust Company (sued as The Bankers’ Trust Company of New'York) and another, from an interlocntory 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 November, 1907, upon the décision of the court, rendered after a trial at the New York Special Term, overruling said defendants’ demurrer to the amended complaint upon ■ the ground that the said complaint…

Appeal by the defendants, Jnstine G. Scheel and Louise Ammann, from a judgment of the Supreme Court in favor of the plaintiffs and the, defendant Henry F. Strodtmann, entered in the office of the clerk of the county, of New York on the 2d day of Hovember, 1907, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendants, William Pierson Hamilton and another, as executors, 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 17th day of January, 1908, denying tli¿ said defendants’ motion to strike out certain portions of the complaint as redundant.</p>

<p>Appeal by the plaintiffs, Richard Delafield and others, from an order of the Supreme Court, made at the .New York Trial Term . and entered in the office of tlie clerk of the. county of New York on the loth day of January, 1908, correcting the clerk’s minutes of. the proceedings in the above-entitled action by striking out the words “with interest” from the record of the verdict.</p>

Appeal by the defendant, Duffield & Company',' from an order of the Supreme Court, made at the New York. Special Term and enteredin the office of the clerk of the county'of New York on the 29th day of November, 1907, denying the said d'efendant’s motion for a bill of particulars.

Appeal by the plaintiff, the Hartog & Beinhauer Candy 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 24th day of January, 1908.

Appeal by the plaintiff, Frederick L. Wells, an infant, 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 28th day of March, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term.

Appeal by the plaintiff, John C. Calhoun, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of October, 1907.

■ Appeal by the defendant, the M. Wineburgh Advertising 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 10th day of December, 1907, affirming á judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, rendered on the 27th day of June, 1907.

<p>Real property — injury to easements by elevated railroad — when ■ period of prescription begins to run — extension of time by infancy — cotenants — release of easements — infancy of cotenant — estoppel.</p> <p>When, at the commencement of the operation of an elevated railroad one of the tenants in common of abutting lands was an infant fourteen years of age, he is entitled to add the remaining period of infancy, or seven years, to the time when his right to sue for injuries to easements in light, air and access would have been barred if he had been, an adult when the operation of the road commenced. Thus, if he sue within twenty-seven years from the commencement of the operation of the road, his action is not barred.</p> <p>An action brought by a landowner for loss of easements in light, air and access' caused by the operation of an elevated railroad is barred, if at all, not by the Statute of Limitations, for the trespass and injury are continuous, but by prescription which rest's upon the presumption of a lost deed or grant after adverse, use and enjoyment for twenty years.</p> <p>One tenant in common, or any number less than all, cannot grant an easement over common property or release an easement appurtenant thereto. Hence, when at the commencement of injuries to easements in light, air and access • caused by the operation of an. elevated railroad one of the tenants in common was an infant and unable to convey by reason of such disability, no pre sumption'of a release or grant by his adult cotenants can begin to run until the infant attains his majority, and an action by such adults for injury to their interests is not barred until the expiration of twenty years from their cotenant’s majority, in the absence of proof of an actual grant or release by them.</p> <p>It seems, that although individual cotenants cannot release easements appurtenant to the lands held in common, they may,- by actually making such release, become personally estopped so as to prevent a recovery of damage for injury thereto.</p> <p>Ho.ughton and Laughlin, JJ., dissented in part, with opinion.</p>

<p>Contract indemnifying underwriter construed — pleading — complaint stating cause of action.</p> <p>The plaintiff having underwritten bonds on the promise of the defendants to pay the subscription, the latter subsequently made the following agreement: “ We, the undersigned, hereby agree to relieve you of any responsibilities covering your underwriting of the bonds. * * * This indemnification is intended to relieve you of any and every responsibility or obligation, all of which we ourselves hereby assume.” Thereafter the plaintiff wrote the defendants mentioning the agreement and stating that if they held him harmless under said agreement, they would be entitled to receive all the bonds and stock which otherwise would he coming to the plaintiff as an underwriter, or that if the ■ plaintiff were required to pay any money for his subscriptiou "tlie -securities held in connection therewith should be first applied to paying the money so disbursed, the surplus, if any, to he paid to the defendants. . ,</p> <p>Held, that reading the agreement and the letter together, the complete indemnity contained in the former was not cut down by the statements in the plaintiff’s letter, and that a-complaint setting out the facts aforesaid together with the fact that the plaintiff had been obliged to pay his subscription. owing to the default of the defendants, was not subject to demurrer.</p> <p>Patterson, P. J., dissented;</p>

<p>Examination of defendant before trial to frame complaint— action for accounting.</p> <p>When the moving affidavits on a motion to'examine the defendant before trial in 'order to frame the complaint in an action for an accounting disclose information sufficient to enable the plaintiff to frame a complaint which will entitle him .to an interlocutory judgment of accounting, the examination should'be denied. ' Such examination would in effect require an accounting before issue joined and being entirely unnecessary to enable the plaintiff to frame a complaint, the application must be deemed to have been made for an ulterior purpose.</p> <p>There are fundamental differences between an examination of an adverse party ' after issue joined to obtain evidence for use at trial and an examination of the adversary in order to frame the complaint. Decisions as to the former examination are not necessarily authoritative as to right to the latter.</p>

Appeal by the petitioner, the North American Mercantile Agency 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 23d day of January, 1908, denying the petitioner’s application for a peremptory writ of mandamus.

<p>Appeal by the plaintiff, John Stapleton, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of. New York.on the 24th day of June, 1907. . •</p>

Appeal by the plaintiff, The-'People of the State of Mew York, from an order' of the Supreme Court, made at the Mew York Special Term and entered in the office of the1 clerk of the county of Mew.York on the 25th day of January, 1908, granting,the motion of the defendant George B.. McClellan that the issues be tried by a struck jury.

<p>Trade mark —successive assignments of trade name by executor — unfair competition — use of trade name enjoined.</p> <p>One Otto Sarony, being executor of Napoleon Sarony, who, prior to his death had conducted a widely known photographic establishment under the trade mark “Sarony,” sold said business together with the trade mark and good will, the same passing to the plaintiff by mesne assignments. Thereafter said executor, in consideration of a promise by the defendant Marceau to issue to him one share of stock of a'corporation to be "organized by the defendant, covenanted to allow him to bestow upon such corporation all or any part of his said name “ Sarony ” and thereupon the corporation was organized" under the name “ Otto Sarony Company, Photographers,”'and engaged'in the business of making photographic portraits in the immediate vicinity-.of the place where the plaintiff’s business was conducted.</p> <p>In an action to enjoin the defendant and' the corporation organized by him from using the name “Sarony,” the complaint in addition to the facts aforesaid alleged that the. use of said name was unlawful and calculated to deceive the public, etc. On demurrer to the complaint,</p> <p>Held, that a cause of action based upon unfair competition in business was stated;</p> <p>That as the defendant Marceau had organized the corporation and owned substantially all of its capital stock and was actually carrying on the business as president, he was properly joined with the corporation as a party defendant.</p>

<p>Practice —motion to open default — laches.</p> <p>Motion to open a judgment taken by default denied because of the unexcused failure of the-defendant to appear at trial after notice that the case had been many days upon the special calendar marked for trial, etc.</p>

Appeal by the defendant,. The Salvation Army, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of July, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 3d day of August, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Magdalena Scheu, from so much of 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 on the 5th day of February, 1908, granting the plaintiff’s motion for a substitution of attorneys as imposes conditions and fixes the value of the services of her former attorney.

Appeal, by the plaintiff, The City of New York, from an order of the. Supreme Court, made at the New York Special Term and entered in the office of the. clerk of the county of New York on the 28th day of October, 1907, dismissing the above-entitled, action, which was brought to recover the amount of a personal tax for the year 1905.

Appeal by the plaintiff, Jesse L. Boskowitz, as administrator, etc., from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 10th. day of February, 1908, granting the defendant’s motion for a bill of particulars.

<p>Appeal by William Ackermann and others 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 17th day of January, 1908, granting the petitioners’ application for permission to disinter and remove certain bodies.</p>

Appeal by the plaintiff, Laurent J. Tonnele, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the: county of New York on the 17th day of September, 1907, upon the report' of a referee dismissing the complaint upon the merits.

Appeal by the defendant, The ¡New York Central'and Hudson Biver Bailroád Company, from a judgment of -the Supreme Court in favor' of the plaintiff, entered in tlie office of -the clerk of the county of New York on the 16tli day of February, 1907, upon tlie verdict of a jury for $3-,'500, and also from an order entered in said clerk’s office on the 14tli day of February,, 1907¿ denying the defendant’s motion for a new trial made upon the minutes..

Appeals by tile defendants, Levi P. Morton and others, from an interlocutory judgment of the- Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of May, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrers to the amended complaint.

Appeal by the plaintiff, 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 ón the 7th day of March, 1908,. vacating- an order entered in said clerk’s office on the 28th day of February, 1908, appointing temporary receivers of the defendant.

Appeal by the'plaintiff, Christian F. Peters, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of -the county of New York on the 9th day of December, 1907, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the Duffy-Mclnnerney 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 31st day of December, 1907, denying the defendant’s motion to change the place oftrial of the action from the county of New York to the county of Monroe.

Appeal by. the defendant, the West Side Building 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 31st day of December, 1907, denying the- defendant’s motion to change the. place of trial of the action from the county of New York to the county of .Monroe.

<p>Appeal by the defendant, Louise EL. Carpenter, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1908, overruling the said defendant’s answer as frivolous and directing judgment for the plaintiff thereon.</p>

■ Appeal by the plaintiff, Walter E. Lambert, from an order of the Supreme Court, made at the Yew York Trial Term and entered in the office of' the clerk of the county of Yew York on the 6th day of January, 1908, setting aside a verdict theretofore rendered in favor of the plaintiff and granting a new trial of the action.

Appeal hy the relator, Archibald McAuley, from an order of the Supreme Oourt, 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, dismissing a writ of habeas corpus.

Appeal by the defendant, Isaac Bloom, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 22d day of December, 1905, convicting the defendant of the crime of perjury, and also from an order made on the 22d day of December, 1905, denying the defendant’s motion - for an arrest of the judgment.

<p>Reference — action at law — trial.</p> <p>In an action at law there can be biit one judgment and that judgment can only be entered after all the issues are disposed of, and the court is without power to refer a part of the issues to be tried by a referee arid reserve the others to be tried by a jury.</p>

<p>Appeal by the defendant, De Mercy Argenteau, from a judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of November, 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, upon the ground that it fails to state facts sufficient to constitute a cause of action.</p>

Appeal by the plaintiff, Eeine Conrad, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of November, 1907, upon the decision of the court rendered after a trial- at the New York Special Term.

<p>Appeal by Caroline M. Robinson from certain parts of a decree of the Surrogate’s Court of the county of New York, entered in' said Surrogate’s Court on the 3d day of May, 1907.</p>

<p>Executors and administrators — services rendered to decedent — evidence— presumption on acceptance of payments -^burden of proof— contract. '</p> <p>When in an action to recover for services rendered to one- since deceased it is shown that during an employment of seven years the plaintifE received and accepted payments from the decedent at stated periods, there is a presump- . tion that they were received as full compensation for - the services rendered, and the burden is upon the plaintiff seeking to recover additional compensation to show that there was an agreement that it should be paid, or that the obligation was not fully discharged by the payments made and accepted. Moreover, such contract must not only be certain, definite find founded Upon adequate consideration, but must also be established by the clearest and most convincing proof.</p> <p>Evidence examined and held insufficient to establish a contract to pay additional compensation, and that declarations by the- decedent showing an intention to give the plaintifE a legacy were consistent with an understanding that the payments made for her services were in full compensation.</p> <p>Patterson, P. J., and Houghton, J., dissented.</p>

<p>' 1 • Guaranty of machine — mechanic’s lien — payment — order upon owner —personal judgment against contractors.</p> <p>Where a contractor installing a refrigerating plant has guaranteed its performance, but against his protest and consent is compelled by the agents of the owner to install it in such manner that it will not develop its full .efficiency, ■ he is relieved from his guaranty, and the owner is liable for the contract price although the machine does not fulfill the guaranty.</p> <p>A sub-contractor, furnishing materials to the contractor, by taking an order upon the owner, is not presumed to receive it as absolute payment irrespective of whether the amount can be collected from the owner.</p> <p>When such sub-contractor files a mechanic’s lien for materials furnished and in a suit of foreclosure joins the contractor as party defendant, the court may render a personal judgment against the contractor.</p> <p>When contractors made parties defendant on the foreclosure of a mechanic’s lien against the owner have filed no liens and do not ask that the plaintiff’s lien be enforced, they are not entitled to a money judgment against the owner, as the latter is entitled to jury trial upon such an issue. It is only where a party has filed a mechanic’s lien that upon a failure for any reason to establish the lien, a money judgment may he given.</p>

Appeal by the defendant, Ethel Potter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of New York on the 2d. day of January, 1908, upon the decision of the court, rendered after a trial at the New York Special Term,

Appeal by the relator, John S. Ferguson, 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 27th day of Hovember, 1907..

<p>Appeal by the defendants, the Degnon-McLean Contracting Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 28th day of March, 1906, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 19th day of March, 1906, denying the defendants’ . ■motions for a new trial made upon the minutes, and granting the plaintiff an extra allowance.</p>

<p>Appeal by the defendant, the Raymond Yan Praag Supply 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 May, 1907, upon the report of a referee.</p>

Appeal by the defendant, Hugo Gorseb, 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 12th day of November, 1907, upon the decision of the court, rendered after a trial at. the New York Special Term, sustaining the. jplain tiff’s demurrer to the second separate defense set up in the answer to the amended complaint.

Appeals by the defendants, John B. Martin and Warwick Emile Montgomery 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 ■ December, 1907, directing that a peremptory writ of mandamus issue to John F. Ahearn, as president of the borough of Manhattan, city of New York, requiring and commanding him to remove certain structures within the line of Fifth avenue…

Appeal by the plaintiff, Carrie Boskowitz, from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 26th day of February, 1908, granting the defendant’s motion that Jesse L. Boskowitz, as administrator, etc., of Ignatz Boskowitz, deceased, and Florence Boskowitz be joined as codefendants with the original defendant, Adolph Boskowitz, herein, and for directions with respect to the claims to…

<p>Judgment—entry on docket not judgment — power of court to correct errors — conflict of laws — power of foreign court to entertain cross bill in equity—■ constitutional' law — when decree on cross bill binding here.</p> <p>An erroneous entry upon the court calendar of the word “ dismissed ” not made in the presence of the court nor in consequence of its order is not effective as a final judgment dismissing the case and is not evidence of a judgment to that effect.</p> <p>The above rule obtains in the Indian Territory in which the laws of Arkansas are made applicable by statute, and the Federal court in that Territory has power to cure such error by ordering it stricken from the docket.</p> <p>An order made by the Federal court in the Indian Territory granting the prayer of a complaint in equity and restraining an assignee for the benefit of creditors from selling property and appointing him as receiver to administer the same under order of the court is not such final order as ousts the court of jurisdic- . tion to entertain a cross bill by said receiver seeking to compel a secured creditor to make restitution of proceeds of a sale paid over. - A cross bill in a suit in equity is authorized in the Indian Territory and the Federal court in that Territory may render judgment upon the cross bill without further service of process.</p> <p>A decision of said court granting the relief demanded in a cross bill to a suit in equity cannot be attacked collaterally here in the absence of statutes or decisions showing that the court lacked jurisdiction to entertain the cross bill. '</p> <p>An order of the Federal court in the Indian Territory sending the accounts- of its receiver to a masterln chancery and ordering the receiver to distribute the assets among the creditors but not winding up the estate and discharging the receiver is not a final order, and does not prevent that court from entertaining a cross bill by said receiver brought to compel restitution by secured creditors who, by fraud, have procured a distribution to them.</p> <p>As the co.ufts of this State are bound to give full faitli and credit to the determination of the foreign- decree granting the prayer of said cross bill,- it is error to dismiss the complaint in an action brought upon said judgment.</p>

<p>Appeal by the defendant, the New York City Eailway 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 15th day of May, 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.</p>

<p>Party— action to restrain revocation of license — complainant.</p> <p>In an action by a licensee to restrain a commissioner of licenses from revoking its license, a person who has preferred charges with the commissioner against .the licensee may not intervene as defendant where he shows no other interest than that of a private citizen.</p>

<p>Appeal by the defendant, the John H. Woodbury Dermatological Institute, from a judgment of the Court of Special Sessions of 'the first division of the city of New York, rendered on the 2d day of January, 1908, convicting defendant of the misdemeanor of unlawfully advertising to practice medicine without lawful authorization and registration, and imposing a fine of $100 therefor.</p>

<p>Fire insurance — action to reform, policy — acts not showing meeting of minds on. agreement to renew prior policy.</p> <p>Where ón applying for the renewal of a fire insurance policy the applicant is requested to make a statement of the amount of outstanding insurance held in other companies and in compliance therewith- states -that it carries §10,000 in the Home Company, and the insurer thereupon notifies the insured that its risks are covered with the following warranty “Home, §10,000,” and thereafter a policy is issued stating that the amount warranted as held by the above-named -company is §10,000, the insured is not entitled to have, the policy -reformed -by striking out the warranty although it did not appear in the original policy, for under the circumstances there, was no meeting of the minds upon an agreement to renew the former policy on its original terms.</p> <p>Although where there is an actual agreement to renew an insurance policy the court will reform it- if it contains new -terms at variance with the policy to be renewed, yet the-theory upon which such relief is given is that, there has been a mutual mistake or some implied fraud on the part of the insurer.</p>

Appeal by the plaintiff from an order of- the Municipal Court of the city of New York, borough of Queens, dated the 17th day of January, 1907, setting aside the verdict of the jury.

<p>Pleading—fraud— complaint not stating action for deceit inducing purchase of stock—failure to state damage,— contract — complaint stating breach of contract to pay notes—allegation of failure to pay at maturity—presumption of non-payment — burden of proof— allegations stating conclusions.</p>

<p>Appeal by the defendant from a judgment for the plaintiff entered upon the verdict of a jury in a trial at the Westchester Trial Term.'</p> <p>Judgment and order affirmed, with costs. ■ No opinion. .Jenks, Hooker,and Rich, JJ., concurred; Gaynor, J., read for reversal; Hirschberg.'P. J., not voting.</p> <p>The action-was for alleged negligence of the defendant by which the plaintiff’s decedent, while an employee of the defendant, was killed. The-defendant was engaged in doing work as contractor on a railroad terminal being constructed of mason work and iron girders. Its superintendent of the work was Lenahan, the. foreman of the iron work was Scott, and the deceased was assistant foreman under him. They worked together and had a gang of men under them. They were receiving heavy , iron girders from trucks when the accident happened. They hoisted the-girders one by one and swung them into place by means of a large derrick with a swinging boom. - It was the usual kind of derrick and rigging used for such purposes. A block and fall was suspended from the upper end of the boom. There was a large iron ball weighing about 850 pounds, shaped something like a boy’s top, with an eye at the .top of it.and another at the bottom. The top eye was to go on the hook of the block, and the bottom eye on the hook of the chain sling of the load, and in that way the load would be hoisted, its weight being thus on the eyes of this ball. The only reason for having this ball between the block and the load, or at all, is that when the load is hoisted and taken off, the weight of the said ball carries the block down again for the next load. When the accident happened the ball was not being used in the way mentioned above; it was not suspended by its top eye from the hook of the fall, and the load suspended from its bottom eye by the hook of the chain sling of the load. The load was not suspended from the ball at all, but directly from the hook of the block. The ball had been removed from the hook of the block, and simply lashed by a rope to the side of the block to serve its purpose of carrying the block down after the load was hoisted and taken oil. This was done because-the foreman (Scott) feared that the eyes of the ball might not be strong enough to bear the unusually heavy weight of the iron girders which were being hoisted, and might give way. While a girder was being hoisted the ball fell down upon the deceased and killed him. The rope which tied or lashed it to the side of the block gave way. One witness testified the rope was “rotten,” but this was only a conclusion, and on further examination he said he did not examine the rope at all after the accident, and never saw it before. The evidence of the only other witness who testified on the subject is that the strands of the rope pulled out and parted. He testified: “It was worn. After it broke it was all fuzzy and cút and its strands all. separated and worn away/’ Tlie deceased was present when the ball was lashed to the block. There is testimony that he took physical part in the doing of it", and testimony that he did not. There was plenty of rope present for use by the men.</p>

<p>Appeal by the plaintiff from a judgment entered in the Kings county clerk’s office'on the 3d day of June, 1907, upon a dismissal of the complaint at the close of the evidence at the Kings Trial Term, and also from an order denying a motion for a new trial.</p> <p>Judgment and order affirmed, with.costs. 2STo opinion. Woodward, Jenks and Miller, JJ., concurred; Gaynor, J., read for reversal, with whom Hooker, J., concurred.</p>

<p>Appeal by the defendant from a judgment'-of the Supreme Court in favor Of the plaintiff, entered in. the office of the clerk of the county of King's on the 6th-day of February, 1907. .'</p> <p>* Judgment affirmed, with costs, on the opinion of Hr. Justice Burr at Special Term.* Jenks, Hooker, Gay nor and Rich, JJ., concurred; Hirschberg, P. J., not voting.</p>

Appeal by the plaintiff from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of-the county of Kings on the 14th day of March, 1907. •Interlocutory judgment affirmed on the opinion of Mr. Justice Kelly at Special Term, with costs. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. «

Appeal by the board of elections from an order entered in the New York county clerk’s office on the 19th day of September, 1907, compelling the said board to strike the name of William Heineman from the primary enrollment book.

. Appeal by the plaintiff from an order entered December 11, 1907, in the New York .county clerk’s office, providing that answers may remain in lieu of demurrers.

Appeal by the plaintiff from a judgment of the Suprem'e Court, entered in the clerk’s office of the county of New York on the 22d day of October, 1907, on a verdict in favor of defendants; and also from an order entered in said clerk’s office on the 21st day of October, 1907, denying plaintiff’s motion for a new trial.

<p>Appeal from an order entered in the office, of the clerk of the county of New York on the 8th day of November, 1907, denying a. motion for a change of venue from New York county to Greene county.</p>

<p>-Appeal from an order of .the Special- Term denying the defendant’s motion for a bill of particulars,</p>

<p>Appeal from an order denying a motion for an injunction.</p>

<p>Appeal from orders entered in the office of the clerk of the county of New York on the 18th day of December, 1907, striking out parts of answers as irrelevant.</p>

<p>Appeal — absence of exception — new theory from that at trial.</p>

<p>Appeal from an order entered in the office of the clerk of the county of New York on the 13th ddy of January, 1908, denying a motion for a stay of jiroceedings.</p>

<p>Appeal from an order entered, in the office of the clerk of the county of New. York on the'4th day of February, 1908, denying the plaintiff’s motion to be relieved from a certain stipulation.</p>

<p>Appeal by plaintiff from a judgment of the Supreme Court entered in the clerk’s office of the county of New York on the 22d day of May, 1907, dismissing the complaint. ■</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 9th" day of December, 1907, denying a motion to set aside a prior order.</p>

<p>Appeal from an order entered in'the New York county clerk’s office on the 33d day of December, 1907, denying a motion to compel an attorney to pay moneys.</p>

<p>Appeal from part of an order entered in the New York county clerk’s office on the 14th day of December, 1907, granting motion for a bill of particulars.</p>