Volume 124 — New York Supplement

Action by Sadie Legg, administratrix of Harry P. Legg, deceased, against the Erie Railroad Company. Motion at close of case to dismiss and motion to set aside verdict for plaintiff reserved.

<p>Appeal from Warren County Court.</p> <p>Action by Nora Sullivan against T. Edmund Krumbholz. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading (§ 87*)—Answers.</p> <p>It is not proper practice for the same defendant to file separate answers in the same case to separate causes of action in the complaint.</p> <p>[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 87.*]</p> <p>2. Pleading (§ 362*)—Motion to Correct Answer.</p> <p>Blotions to correct the answer should not be made till defendant has served an answer to the whole complaint, and therefore, where the copy answer submitted by defendant on plaintiff’s motion is in form an answer to only three of the eight causes of action in the complaint, and the copy answer attached to plaintiff’s motion papers is in the same form, except that it purports to be an answer to the whole complaint, but in the notice of motion it is described as an answer to such three causes of action, it must be assumed that the answer to which the motion relates is an answer to such three causes of action alone, and that there is another answer, not submitted on the motion, to the other causes of action, so that the motion will be denied, with leave to renew after defendant has answered the whole complaint by a single answer, or on papers showing that the present answer is an answer to the whole complaint, and, if such is not the case, with leave to defendant to serve an answer to the whole complaint.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1147; Dec. Dig. § 362.*]</p> <p>3. Pleading (§ 120*)—Answer—Denial.</p> <p>The denial in an answer of the complaint, “except as controverted,” is not a good denial.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 244, 258; Dec. Dig. § 120.*]</p> <p>4. Pleading (§ 123*)—Answers—Denials.</p> <p>Where the answer is not required to be verified, though the complaint is verified, the denial may be ax general one, instead of specific.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 255; Dec. Dig. § 123.*]</p> <p>5. Libel and Slandeb (§ 52*)—Justification.</p> <p>Matter pleaded in justification in an action for libel and slander, not being as broad as the charge, is not a justification.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent Dig. § 219; Dec. Dig. § 52.*]</p> <p>6. Libel and Slander (§ 94*)—Justification—Pleading.</p> <p>Defendant in an action for libel and slander, desiring to plead matters in justification, must allege the truth of the particular facts as to which she wishes to justify at the time of the publication, which can be done without admitting that defendant made the publication.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 219, 220; Dec. Dig. § 94.*]</p> <p>7. Libel and Slander (§ 95*)—Matter in Mitigation—Pleading.</p> <p>Matter in mitigation, in an action for libel and slander, should be pleaded as a separate defense, and stated to be a partial defense.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 227; Dec. Dig. § 95.*]</p>

<p>Action by Hobert L- Romig against Charles L. Sheldon, individually and as administrator, etc., of Charles L. Sheldon, Jr., deceased. Demurrer to complaint sustained.</p>

Action by Alice T. Kinsey against William S. Kinsey for separation, in which defendant filed a counterclaim for similar relief. Complaint and counterclaim dismissed.

Action by Henry C. Tiffany, in his own behalf and in behalf of all others similarly situated who shall join in the action, against H.- Wilmot Smith and others, to procure a decree that defendants have acquired the property formerly owned by the Schad Wheel Company, as trustee of plaintiff and other stockholders of the corporation, and for an accounting of the rents, issues, and profits of the property since July 31, 1897; that a trustee be appointed to take charge of the…

Appe'al from Special Term, New York County. Biandamus by the People, on the relation of Jacob Ruppert, to compel 31ay-nard N. Clement, as State Commissioner of Excise, to award a rebate under tile liquor tax law (Consol. Laws, c. 34). Appeal from an order denying a peremptory writ.

<p>Intoxicating Liquors (§ 37*)—Elections—Result—Equitable Relief.</p> <p>Const, art. 6, § 1, declares that the Supreme Court is continued with general jurisdiction in law ánd equity, and Code Qiv. Proc. § 217, provides that the general jurisdiction of the Supreme Court under the Constitution includes all the jurisdiction possessed and exercised by the Supreme Court of the Colony of New York at any time, and by the Court of Chancery in England on July 4, 1776. Helé that, where propositions under the liquor law (Consol. Laws, c. 34) were submitted to the voters, but the board of inspectors falsely certified the result of the vote, the Supreme Court had equitable jurisdiction of an action to remedy the false certification.</p> <p>[Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. § 37.*]</p>

Action by Frank- B. Townsend against Ezekiel C. Perry and others. Judgment for plaintiff. . The plaintiff in this action seeks to have it established that he isi the owner of lands in Yates county formerly owned by Mary J. Townsend, deceased. The action is brought against her heirs at law and their grantees.

<p>1. Wills (§ 302*)—Execution—Evidence.</p> <p>In proceedings to probate a will, evidence held to show that the will was properly executed.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 700-710; Dec. Dig. § 302.*]</p> <p>2. Wills (§§ 55, 166*)—Testamentary Capacity—Undue Influence—Evidence.</p> <p>In proceedings to probate a will, evidence held to show that testator at the time he made the will had testamentary capacity, and that the execution of the will was not procured through undue influence.</p> <p>Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 137-161, 421-437; Dec. Dig. §§ 55, 166.*]</p>

<p>1. Executors and Administrators (§ 181*)—Allowances to Surviving Wife —Personal Property.</p> <p>Under Code Civ. Proc. § 2713, subds. 1-4, directing the setting off of property to the widow and minor children, the property mentioned cannot be set off unless in existence at decedent’s death, and if decedent held a fractional interest in the property, such interest can be set off if the widow is willing to accept it, but under subdivision 5, providing for setting off other necessary household furniture, “provisions or other personal property” to the value of not exceeding $150, money on hand or deposited in a batik may be set off at the discretion of appraisers instead of household furniture.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 681-685; Dec. Dig. § 181.*]</p> <p>2. Executors and Administrators (§ 176*)—Allowances to Surviving Wife —Quarantine—Maintenance.</p> <p>Under Real Property Law (Consol. Laws, c. 50) § 204, giving a widow the right to remain in the chief house of her husband 40 days after his death without rent, and in the meantime to have her "reasonable sustenance out of the estate, where a decedent left real property with a house upon it, his widow to whom no provisions or fuel had been set aside by the appraisers, is entitled to an allowance based upon her reasonable board during her period of occupancy of the real property.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 666; Dec. Dig. § 176.*]</p> <p>3. Executors and Administrators (§ 178*)—'Allowances to Surviving Wife —Quarantine—Maintenance—Amount—“Sustenance During Quarantine.”</p> <p>“Sustenance during quarantine” covers no more than the supplies left on the homestead during the widow’s quarantine, or her reasonable board during the same period, and does not embrace the widow’s mourning outfit or any expenses to attend the funeral of her husband; and the reasonableness of a sum to be allowed depends on the circumstances of the particular case.</p> <p>[Ed. Note.—For other eases, see Executors and Administrators, Cent. Dig. § 667; Dec. Dig. § 178.*]</p>

Certiorari by the People of the State of New York, on the relation of the New York Central & Hudson River Railroad Company, against the State Board of Tax Commissioners. On application for change of place of trial from Albany to New York county.

<p>Criminal Law (§ 1073*)—Appeal—Certificate oe Reasonable Doubt.</p> <p>On a motion for a certificate of reasonablet doubt on a proposed appeal from a conviction under Penal Law (Consol*. Laws, c. 40) § 2460, subd. 4, of knowingly receiving money for procuring, the case shown on an examination of the record helé to entitle accused to the relief asked for.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2730; Dec. Dig. § 1073.*]</p>

<p>1. Insurance (§ 719*)—Mutual Benefit Insurance—Right to Increase Assessments.</p> <p>An agreement by a member of a mutual benefit association to be governed by the rules and regulations of the organization in force at the time or that may be hereafter enacted does not warrant the society in increasing the amount of the separate assessments against him.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719.*]</p> <p>2. Insurance (§ 735*)—BIutual Benefit Insurance—Restraining Advance in Assessments.</p> <p>A member of a mutual benefit society is not barred by laches from restraining the society from increasing his monthly assessments by failure to sue to restrain the society for a few months after the increase had gone into effect, where he had regularly protested against the increase, as he has a new cause of action with every assessment demanded.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 735.*]</p> <p>3. Insurance (§ 735*)—BIutual Benefit Insurance—Advance in Assessments—Estoppel of Member.</p> <p>A member of a mutual benefit society is not estopped by payments of increased assessments made under protest to sue to restrain the society from suspending him, and asking the re-establishment of the former rate of assessment.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 735.*]</p> <p>4. Insurance (§ 712*)—Mutual Benefit Insurance—Contract—What Law ■Governs:</p> <p>Where a mutual benefit society is incorporated in another state, and conducts business in New York under the supervision and permission of the State Insurance Department, contracts made with residents of the state in councils organized and existing in the state, which contracts are to be performed here, are to be interpreted under the laws of the state.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 173-175, 293, 1934; Dec. Dig. § 712.*]</p>

<p>Wills (§ 731*)—Construction—Charges Against Legatee.</p> <p>Testatrix gave a legatee one-third of her cash, bonds, and mortgages, less $3,000, which was to be charged in full satisfaction of previous advances. Held not to establish a debt in favor of testatrix, so as to cut down a gift in the latter part of the will, where testatrix leaves no cash, bonds, and mortgages from which the $3,000 can be deducted.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1795; Dec. Dig. § 731.*]</p>

<p>On motion for reargument. Motion denied.</p>

■ Appeal-from Special Term, Kings County. Action by iCharles R. Thomas against John H. Springer. From an order allowing an amended complaint on the payment of $10 costs, defendant appeals. Modified, so as to require plaintiff to pay all costs and disbursements in the action and $10 costs of the motion.

<p>Appeal from Nassau County Court</p> <p>Action by Andrew Hansen against Lena Vogelsang. Prom a certain order, defendant appeals.</p>

<p>Receivers (§ 18014,* New, vol. 9, Key No. Series)—Voluntary Dismissal-Grounds.</p> <p>An application by a receiver of a bank for leave to discontinue an action against third persons to recover the proceeds of a cashier’s check given in payment of a personal debt, the funds covered being the funds of the bank, on the ground that the receiver had no evidence of notice to the defendants that the funds covered by the check were the funds of. the bank, except the form in which the check itself was drawn, will be denied, where a separate defense, verified on knowledge, alleged that the cashier called on the defendants and stated that he desired to take up certain' bonds and pay for them as the property of the bank, and that he, as cashier of the bank, was empowered to purchase bonds for it and pay out the funds of the bank for them.</p>

<p>Divobce (§ 213*)—Action fob Sepabation—Counsel Fees.</p> <p>Though a wife, suing for separation, will be granted counsel fees where her own statement makes out a prima facie case and her income is insufficient to support her and defray the expenses of the suit, alimony will not be allowed where there is grave doubt as to the merits of plaintiff’s case.</p> <p>[Ed. Note.—For other cases, see Divorce, Dec. Dig. § 213.*]</p>

In the matter of the application and petition of John S. Bens el and others, constituting the Board of Water Supply of the City of New York, to acquire real estate for and on behalf of the city under Laws 1905, c. 734, and acts amendatory thereof, in the- town of Hurley, Ulster county, N. Y., for the purpose of providing an additional supply of pure and wholesome water for the use of the city of New York.

<p>Lawrence Gres ser was indicted, and he moves for leave to inspect the minutes of the testimony presented to the grand jury and to set aside and dismiss the indictment.</p>

Suit by Orland E. Way against Augustus Hayes and another, commissioners for the loaning of money of the United States of the county of Ulster. On application for temporary injunction.

<p>Appeal from Special Term, Kings County.</p> <p>Action by William George Foster against William J. K. Kenny. From an order modifying an order of the Supreme Court so as to permit a receiver to obey a subpoena duces tecum, plaintiff appeals.</p>

<p>Action by Rebecca Vernon and others against John English. .Complaint dismissed.</p>

In the matter of the application and petition of John A. Bensel and others, constituting the Board of Water Supply of the City of New York, to acquire real estate for and on behalf of the city under Laws 1905, c. 724, and the acts amendatory thereof, in the towns of Olive and Hurley, Ulster county, for the purpose of providing an additional supply of pure and wholesome water for the use of the city Ashoken reservoir, section 13.

<p>Action by Louisa Jackson and others against Enrico V. Pescia and others. Judgment for plaintiffs.</p> <p>Judgment affirmed in Jackson v. Meister & Bache Realty Co., 124 N. Y. Supp. 1118.</p>

<p>Application by J. Edward Simmons and others, as the Board of Water Supply of New York City, to acquire lands in the town of Olive, Ulster county, for the city, under Laws 1905, c. 724, and the acts amendatory thereof. On motion to confirm a report of the commission. Partly confirmed.</p>

<p>1. Mandamus (§ 165*)—Return—Demurrer— Statutes.</p> <p>Code Civ. Proc. § 2077, provides that in mandamus each complete statement of facts assigning a cause why the writ ought not to be obeyed, is regarded as a separate defense, and must be separately stated and numbered. Section 2078 declares that the people or the relator may demur to the return, or to any complete statement of facts therein separately assigned as a cause for disobeying the writ as insufficient in law, and section 2079 provides that an issue of fact arises on a denial contained in the return of the material allegation of new matter contained in a return, unless a demurrer thereto is taken; that, where the people or the relator demur to a statement of facts separately assigned as a cause for disobeying the writ, an issue of fact arises as to the remainder of the return. Held, that the Code permits a demurrer only to the whole return or to such portion thereof as constitutes a complete statement of facts separately assigned as a cause for disobeying the writ, so that, where a statement of a single cause for disobeying the writ was stated in two separately numbered paragraphs of the return, a demurrer to one of such paragraphs was unsustainable.</p> <p>[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 360%-364; Dec. Dig. § 165.*]</p> <p>2. Mandamus (§ 164*)—Return—Denials—Forms—Negatives Pregnant-Conclusion.</p> <p>Where, in mandamus by a contractor against a county treasurer to compel payment of certain moneys applicable to the payment for work done on a road within the county, the petition alleged performance of the contract, the issue of drafts by the state engineer, a separate defense in the return following the language of the petition, denying that the drafts were issued “in accordance with the contract,” and “in accordance with the statutes,” and assigning that the fund held by the treasurer was “subject to the order of the state engineer,” and that the engineer’s drafts “were duly issued by said state engineer,” but stating no facts indicating any respect in which the orders were not duly issued, were mere negatives pregnant or mere conclusions of law, insufficient to raise an issue of fact, and were therefore demurrable.</p> <p>[Ed. Note.—For other cases, see Mandamus, Gent. Dig. §§ 344-360; Dec. Dig. § 164.*]</p>

<p>Action by the New York Life Insurance Company against Elvira Manning, administratrix, and others. Judgment directed.</p>

<p>Claims by Charles B. Taylor and wife, William D. McFadden, and Norman A. Fowler against the State. Claimants in the second and third claims remanded to the award made in the first claim.</p>

Claim by Martin J. Moroney against the State for a leasehold interest in property appropriated for the Barge Canal. Claim dismissed unless the owner of the land be brought in as a party, and consent to have claimant’s interest determined by the Court of Claims.

<p>In the matter of the transfer tax of the estate of Maria E. Green. From an order assessing the same, the administrator appeals.</p>

<p>1. Alteration of Instruments (§ 29*)—Insertion of Clause in Lease—Evidence—Weight.</p> <p>Evidence held to show that a renewal clause was not fraudulently inserted after execution of lease.</p> <p>[Ed. Note.—For other cases, see Alteration of Instruments, Dec. Dig. § 29.*]</p> <p>2. Alteration of Instruments (§ 27*)—Insertion of Clause—Burden of Proof.</p> <p>The burden was on lessor to show that a renewal clause was fraudulently inserted after the lease was executed.</p> <p>[Ed. Note.—For other cases, see Alteration of Instruments, Cent. Dig. §§ 230-247; Dec. Dig. § 27.*] .</p>

<p>Action by Frank H. Downey against Albert O. Fenn and others. On attachment proceedings against a witness. Proceeding dismissed, and witness discharged.</p>

<p>1. States (§ 102*)—Contracts by Officers—Ratification.</p> <p>While the state has placed limits on the authority of its officers to contract and incur debts on its behalf, it may nevertheless ratify any of their acts which are not void under the Constitution.</p> <p>[Ed. Note.—For other cases, see States, Cent. Dig. §§ 99, 100; Dec. Dig. §■ 102.*]</p> <p>2. Attorney General '(§ 6*)—Contract—Ratification by State.</p> <p>The Attorney General employed a stenographer in a certain litigation, and the stenographer continued to perform his duties under the successor of the Attorney General. Thereafter the Legislature, by Laws 1907, c. 9, § 1, appropriated moneys for the expenses of the Attorney General in his office, including stenographic services. Held, a ratification of the entire contract, though the moneys appropriated were not applied to the payment for such services, but were expended for other purposes.</p> <p>[Ed. Note.—For other cases, see Attorney General, Dec. Dig. § 6.*]</p>

<p>1. Accord and Satisfaction (§ 13*)—Agreements Constituting.</p> <p>An assistant to a principal claimed that Greater New York Charter (Laws 1897, c. 378) § 1091, as amended by Laws 1900, c. 751, § 4, fixing the salary of an assistant to a principal at not less than $1,600 per year after 10 years of service, was self-executing, while the board of education believed that a passage of a by-law on the subject was 'necessary. She had been a teacher since 1873, and from December 1, 1897, to March 27, 1902, she had acted as assistant to a principal, and from May, 1900, to March, 1902, she had been paid $1,260 per annum. She executed a paper which recited that she had submitted) an application for rank and pay as assistant to a principal; that there was doubt as to the validity of her assignment; that, to protect the board of education froni any litigation, she waived all claims for any arrears of salary as assistant between May, 1900, and March, 1902, and released the board therefrom. On the execution and delivery of the paper, her application was favorably acted on, and she was recognized and paid from March, 1902, as such assistant. Held, that the agreement was an accord and satisfaction, and she could not sue for salary due to her from May, 1900, to March, 1902.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Dec. Dig. § 13.*]</p> <p>2. Accord and Satisfaction (§ 26*)—Agreement—Fraud.</p> <p>Evidence held not to show that an instrument constituting an accord was obtained by fraud or duress, or in ignorance of the terms contained in it.</p> <p>[Ed. Note.—For other cases, see Accord and Satisfaction, Dec. Dig. § 26.*]</p> <p>3. Fraud (§ 11*)—Opinions Constituting Fraud.</p> <p>An opinion as to the effect of an instrument executed by another is not a representation of an existing fact, and the person giving the opinion is not liable for error therein.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. .§§ 12, 13; Dec. Dig. § 11.*]</p>

<p>One Rosenthal and' others brought an action against the American Bonding Company of Baltimore, and defendant moved to set the complaint aside.</p>

<p>Appeal from Municipal Court of City of Buffalo.</p> <p>Action by the City of Buffalo against the George P. Ray Manufacturing Company for violation of a smoke ordinance. Judgment for plaintiff, and defendant appeals.</p>

Action by Richard Gibbons against the Lehigh Valley Railroad Company. Motion by defendant for nonsuit or for a new trial on exceptions and for direction of verdict for defendant after rendition of a verdict by the jury for plaintiff for $7,500.

<p>1. Contbacts (§ 147*)—Construction—Intent.</p> <p>While a written contract is to be construed according to the intent of the parties, to be determined from the whole writing, the determination must not be influenced by any considerations save those justified by the agreement itself.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*]</p> <p>2. Landlord and Tenant (§ 322*)—Cropping Contract—Construction.</p> <p>A farm lease on shares provided that plaintiff should pay defendant as rent one-half of the crops and products except stock, cornstalks, beans, and fodder, and that until division the crops and products, including the money derived from the sale of milk, should be defendant’s property as security for plaintiff’s faithful performance of the contract and for advances, and as security that plaintiff would pay one-half of the taxes. A subsequent provision declared that defendant might retain title to the crops and products of the farm and the avails of the milk as security for the faithful performance of all the provisions of the lease. The cows on the farm belonged to defendant, and plaintiff agreed to pay $1.50 as interest on each cow, one-third to be deducted from plaintiff’s share of the milk checks received in June, July, and August, respectively. The milk checks during the year prior to November, 1909, had in fact been divided on the 15th of each month. Plaintiff was also bound to clean, bag, and prepare grain, corn, beans, and potatoes for market, and to feed his own. grain after division to his horses and poultry, and give three days’ notice in writing before division of the crops. Relé, that such notice requirement did not apply to the division of the proceeds of the milk, and that defendant was not entitled to keep the proceeds of the milk checks undivided until the termination of the contract as security for plaintiff’s-performance of its terms; such retention as security being authorized only to the extent necessary for defendant’s protection as to any part of the contract unperformed at the time when there were proceeds to be divided.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. §• 322.*]</p>

<p>1. Mortgages (§’25*)—Consideration.</p> <p>There is no sufficient consideration for a mortgage and the bond secured thereby, where the transaction was intended merely as a gift by a father to his daughter, of age, married, and living apart from him with her husband, and it was not intended lie should be called on to pay it or any interest during his life.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 29-32; Dec. Dig. § 25.*]</p> <p>2. Estoppel (§ 83*)—Denial of Validity of Mortgage.</p> <p>A mortgagor is not estopped to deny validity of a mortgage merely by indorsing notes of the mortgagee for renewal at a bank, after knowing the bank held the mortgage by assignment; he having previously informed the bank that it was invalid.</p> <p>[Ed. Note.-—For other cases, see Estoppel, Cent, Dig. § 228; Dec. Dig. § 83.*]</p> <p>3. Judgment (§ 204*)—Relief Not Suggested Till After Trial.</p> <p>Plaintiff a second assignee of mortgage may not in an action to foreclose it, on the mortgage and bond secured being held invalid, have a personal judgment against the mortgagor and mortgagee, on the theory of subrogation to the rights of the first assignee, on notes of the mortgagee to it indorsed by the mortgagor, right to such a judgment not having been suggested during the trial, but only in plaintiff’s brief submitted after the trial.</p> <p>[Ed. Note.—For other cases, see Judgment, Dec. Dig. §' 204.*]</p> <p>4. 'Costs (§ 51*)—Amendment of Pleading.</p> <p>A defendant in an action to foreclose a mortgage holding another mortgage on the property which the original complaint seeks to have adjudged inferior to that of plaintiff, having appeared by attorney and mswered, is entitled to taxable costs accruing prior to plaintiff subsequently serving an amended complaint admitting the priority of his mortgage.</p> <p>[Ed. Note.—-For other cases, see Costs, Dec. Dig. § 51.*]</p>

<p>Appeal from Special Term, Tioga County.</p> <p>Certiorari by the People, on relation of George F. Andrews and another, as temporary administrators and as executors of Frederick C. Hewitt, deceased, against Del Rey A. Cameron and others, as Assessors of the Village of Owego, Tioga County, N. Y., to review an'assessment of the property of Hewitt in their hands as representatives of such estate. From an order relators relief in both ties appeal.</p>

<p>Appeal from Special Term, Tioga County.</p> <p>Certiorari by the People, on relation of George F. Andrews and Gurdon H. Pumpelly, as executors of the estate of Frederick O. Hewitt, deceased, against Harry B. Tilbury and others, as Assessors of the Town of Owego, Tioga 'County, N. Y., to review assessments of relators as personal representatives of decedent. From a judgment at Special Term for less than the relief demanded, both parties appeal. Affirmed on opinion of Mr. Justice Lyon at Special Term, for which see 124 N. Y. Supp. 949.</p>

Action by Minnie J. Nester and others against Harold A. Nester and others for construction of a will. Will construed.

<p>1. Religious Societies (§ 7*)—Incorporated Church—Members—Expulsion.</p> <p>The governing body of an incorporated church has no power arbitrarily to expel members, where property rights are involved.</p> <p>[Ed. Note.—For other cases, see Religious Societies, Dec. Dig. § 7.*]</p> <p>2. Religious Societies (§ 14*)—Discipline—Doctrines—Expulsion of Members—Injunction.</p> <p>Though all questions of faith, doctrine, and discipline belong exclusively to the church and its spiritual officers, and the question of church membership is purely ecclesiastical, courts have power by injunction to restrain the expulsion of members, where it is sought to -be exercised as a' mere pretext to deprive individuals of their membership,' so that their property rights will fall with the expulsion.</p> <p>[Ed. Note.—For other cases, see Religious Societies, Cent. Dig. §§ 100-102; Dec. Dig. § 14.*]</p> <p>3. Religious Societies (§ 7*)—Expulsion of Members—By-Laws—Change.</p> <p>Where a portion of the members of an incorporated church desired a change in the by-laws, and a committee appointed by the congregation had prepared new by-laws to be voted on, notice of which is required to be given at church service on two successive Sunday mornings by an officer of the church, by Religious Corporation Act (Consol. Laws, c. 51) § 194, the church committee and those having control of the organization o£ the church, being opposed to the change, had no authority to expel members and officers favorable to the change, in order to prevent notice and an election to determine whether the change should be effected.</p> <p>[Ed. Note.—For other cases, see Religious Societies, Dec. Dig. § 7.*]</p>

- Suit by Charles D. Holcombe and others against Annie V. C. Leavitt and others. On application for an order fixing attorney’s fee, and for an allowance for services and disbursements.

<p>1. Counties (§ 139*)—County Charges—Support op Convicts—Disorderly Persons.</p> <p>The offense of a disorderly person being quasi criminal, his support, when committed to jail, is to be provided for by the county.</p> <p>[Ed. Note.—For other cases, see Counties, Dec. Dig. § 139.*]</p> <p>2. Paupers (§ 47*)—Town Charges—Vagrant Children—Committal—Support.</p> <p>By analogy to Code Cr. Proc. § 892, providing that the care of adult vagrants shall be at the expense of the town where they resided at the time of their commitment, the care of vagrant children would also be at • the town’s expense.</p> <p>[Ed. Note.-—For other cases, see Paupers, Dec. Dig. § 47.*]</p> <p>3. Counties (§ 139*)—County Charges—Disorderly Infants—Committal to a Reformatory—Support.</p> <p>By analogy to Code Cr. Proc. § 903, providing for the committal of disorderly persons to the county jail, disorderly children, committed to a charitable reformatory or other institution, are at the expense of the county, and not the city.</p> <p>[Ed. Note.—For other cases, see Counties, Dec. Dig. § 139.*]</p> <p>4. Municipal Corporations (§ 264*)—Municipal Charges—Truants—City Charges.</p> <p>Under Education Law (Consol. Laws, c. 16) § 635, subd. 9, as amended by Laws 1910, c. 140, providing that the support of any truant residing in any city employing a superintendent of schools shall be a charge against the city, truant children residing in Buffalo are city charges.</p> <p>[Ed. Note.—For other cases, see Municipal "Corporations, Dec. Dig. § 264.*]</p> <p>5. Counties (§ 139*)—County Charges—Committal of Disorderly Persons—Support—Presumption.</p> <p>The presumption is that children properly committed to the St. Agnes Training School for Girls, a charitable reformatory, are classified as disorderly persons, so that, as such, they are county charges.</p> <p>[Ed. Note.—For other cases, see Counties, Dec. Dig. § 139.*]</p>

<p>1. Principal and Agent (§ 22*)—Proof—Evidence of Relation—Declarations of Agent.</p> <p>Agency cannot be proved by the declarations of the agent made in the absence of the principal.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §' 40; Dec. Dig. § 22.*]</p> <p>2. Principal and Agent (§ 170*)—Liability of Principal — Acts of Assumed Agent—Ratification.</p> <p>While a principal cannot be deemed to have ratified the act of an assumed agent, unless he has full knowledge of the facts, yet where he received," retained, and exercised dominion over goods shipped to him on the assumed agent’s order, and promptly received statements of account without making a seasonable objection, he is liable.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ G38-G43; Dec. Dig. § 170.*]</p> <p>3. Principal and Agent (§ 173*)—Acts of Agent—Ratification—Evidence.</p> <p>Evidence hold to show a ratification by principal of purchases made by assumed agent so as to render the principal liable for the price.</p> <p>[Ed. Note.—For other .eases, see Principal and Agent, Cent. Dig. §§ G59-0G1; Dec. Dig. § 173.*]</p> <p>4. Justices of the Peace (§ 185*)—Appeal—Questions of Fact.</p> <p>The weight and value to be given conflicting testimony as to the ratification by a principal of the act of an assumed agent was for the justice’s court in which the case was tried, and not the County Court to which it was appealed.</p> <p>[Ed. Note.—For other ‘ cases, see Justices of the Peace, Cent. Dig. §§ 716-720; Dec. Dig. § 185.*]</p> <p>5. Appeal and Error (§ 1051*)—Improper Testimony—Harmless Error.</p> <p>In an action to hold a principal liable for the act of an assumed agent in ordering goods, although evidence was improperly admitted of declarations by the agent to prove agency, yet, where there was sufficient other testimony to .hold the principal liable, the judgment against him will be sustained on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p>

<p>Application of Seth Low and others, constituting the Board of Rapid Transit Railroad Commissioners of New York City, for the removal of T. Ellet Hodgskin as commissioner of appraisal.</p>

<p>Records (§ 9*)—Registration of Title to Lands—Pleading—Judgment.</p> <p>Under Real Property Law (Laws 1908, c. 444, Laws 1909, c. 52 [Consol. Laws, c. 50, art. 12]) § 379, as amended by Laws 1910, c. 627, § 2, providing that, in proceedings for registration of title, the complaint shall state what claim, if any, the state of New York makes to the property in question, or any interest it has therein, other than the general governmental interest, or such as exists as to all lands in private ownership, and section 385, as amended, providing that service of the summons on the Attorney General shall be made by mailing a copy thereof, together with a copy of the complaint, etc., and section 391, as amended, providing that no judgment of registration shall be made unless the court is satisfied that the title to be registered is free from reasonable doubt, while a complaint filed and acted on by an order of court before the amendment could not be held defective in regard to notice to the state for failure to set out the interest of the state, plaintiff was not entitled to judgment on an answer denying on information and belief knowledge by the people as to the truth of the matters alleged.</p> <p>[Ed. Note.—For other cases, see Records, Dec. Dig. § 9.*]</p>

Action by Louis J. Kahn against Adolph Hollander and another. Plaintiff sued defendant for damages resulting from an alleged breach of contract to dye and dress certain furs, and procured a warrant of attachment on the ground of defendants’ alleged nonresidence, after which defendants applied to vacate the attachment on the ground that the affidavits therefor were insufficient.

Action by George A. Houseman against James C. Eargo, as president of the American Express Company. There was a judgment for plaintiff, and the cause was removed to the Supreme Court.

Proceedings for the probate of the will of Charles Ferdinand Hoffman, deceased. From a decree of the Surrogate’s Court (65 Mise. Rep. 126, 121 N. Y. Supp. 100), admitting the will and a codicil thereto to probate and construing the provisions thereof, Rosalie A. Avery and others appeal.

<p>Action by Margaretha Behrens against Sarah S. Sturges and others.</p>

<p>Action by Alfred H. Bond against -the Atlantic Terra Cotta Company and others. G. Sumner, for appellants. J. M. Perry, for respondent.</p>

<p>In the matter of the mortgage, lease, or sale of the real property of Martha Lauraine Catlin, deceased, for the payment of her debts.</p>

<p>Action by Benjamin Cohen and another against Isaac Cohen and others.</p>

<p>Action by Emma Frances Duncan, individually and as executrix of the last will and testament of Lorenzo Duncan, deceased, against the Nassau Electric Railroad Company and another.</p>

<p>Action by Francis Foerster against Anton Silers.</p>

<p>Action by Aimee S. Guggenheim against Grace B. Wahl. S. Untermyer, for appellant. J. J. Lordan, for respondent.</p>

<p>Action by Clara Holmes against Alfred Hem-street.</p>

<p>In the matter of the judicial settlement of the account of Percy Hinchman, as administrator, etc.</p>

<p>Action by Lee Jackson against Edward A. Perkins.</p>

<p>Action by Max Kliger against Samuel Rosenfeld and others.</p>

<p>Action by Isaac Lobsitz against Leffler, Thiele & Co.</p>

<p>Action by Daniel B. McCoy against the Gas Engine & Power Company and Charles L. Seabury & Co., Consolidated, and Joseph A. Flannery.</p>

<p>Action by Irwin Merkel, an infant, against William J. Murray.</p>

<p>Action by John M. Moe against the Thomas McNally Company.</p>

<p>Action by John Muller against the Brooklyn Heights Railroad Company.</p>

<p>Action by Robert B. Murphy against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Onondaga County against the City of Amsterdam.</p>

<p>Proceeding by the People of the State of New York against the Santa Clara Lumber Company.</p>

<p>Action by Frank L. Perley against the Morning Telegraph Company.</p>

<p>Action by the People’s Milk Company against John W. Doty.</p>

<p>Action by Joseph T. Quinn against Rose Bracken.</p>

<p>Action by Ignatz Rosenberg against the People’s Surety Company of New York.</p>

<p>Action by Charles D. Rood against the Bank of Cattaraugus.</p>

<p>Appeal from Special Term, New York County. Action by John H. Rogan, as executor, against William, J. Moore, as administrator, and others. From a judgment in favor of plaintiff, defendant Moore appeals.</p>

<p>Action by Emma M. Shepheard against the Edison Electric Illuminating Company of Brooklyn.</p>

<p>In the matter of the application of J. Edward Simmons and others, constituting the Board of Water Supply, etc., to acquire real estate, etc.; Hill View Reservoir, section No. 1.</p>

<p>Action by Clifford N. Searle against Halstead & Co.</p>

<p>In the matter of George Smith, deceased.</p>

<p>Action by Edward V. Slauson, as trustee in bankruptcy, etc., against Adolph Woehlkins.</p>

<p>In the matter of James Taylor, an attorney.</p>

<p>Action by Mary B. Tower against Albert E. Tower.</p>

<p>Action by Rose M. Urtz, as administratrix, etc., of Richard M. Urtz, deceased, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Georgianna B. White and others against Florence A. Bloore.</p>

<p>Action by Charles G. Willoughby against Dana A. Patten.</p>