Volume 125 — New York Appellate Division Reports

Appeal by the defendant, the Home Telephone 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 Chautauqua on the 6th day of April, 1907, upon the decision of the court, rendered after a trial at the Chautauqua Special Term, overruling the defendant’s demurrer to the complaint, interposed on the ground that the complaint fails to state facts sufficient to constitute a cause of action.

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the County Court of Ontario county, entered in the office of the clerk of said county on the 9th day of December, 1907, sustaining the defendant’s demurrer to an indictment which charged him with the crime of grand larceny in the first degree, and dismissing said indictment. Such indictment was found by the grand jury of Ontario county on the 9th day of May, 1907.

<p>Appeal by the defendant, Seymour H. Knox, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 11th day of June, 1907, upon the decision of the court rendered after a trial at the Erie Trial Term, a jury having been waived.</p>

Appeal by the defendant, Anna Yinier, from a judgment of the ' Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 17th day of October, 1906, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 18th day of October, 1906, denying the. defendant’s motion for a new trial made upon the minutes.

Separate appeals by the plaintiffs, J. Hewitt Morgan and another, as trustees, etc., and by the defendant, the United States Mortgage and Trust Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 26th day of October, 1905, upon the verdict of a jury for $23,087.33, with interest, and also from respective orders entered in said clerk’s office on the 27th day of October, 1905, denying…

Appeal by the defendant, The Village of Theresa, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 12th day of March, 1907, upon the decision of the court, rendered after a trial at the Jefferson Special Term, enjoining the defendant from cutting down or removing certain poles and wires of the electric lighting system of the plaintiffs.

Appeal by the defendant, the City of Jamestown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 7th day of February, 1907, upon the report of a referee.

Reargument of a motion by the defendant, J. Francis Kellogg, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury rendered by direction of the court, after a trial at the Livingston Trial Term.

Appeal by the defendant, The Hew York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 31st day of January, 1907, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 1st day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Dora Hoy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Cattaraugus on the 23d day of July, 1906, upon the decision of the court, rendered after a trial without a jury, dismissing the complaint upon the merits.

Appeal by the defendant, the Sherwood Metal Working Company, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of said county on the 21st day of June, 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 2d day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the George A. Bay Manufacturing ■Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of March, 1907, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 8th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.

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

Appeal by the defendants, the City of Jamestown and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Chautauqua on the 30th day of September, 1907, upon the decision of the court, rendered after a trial at the Chautauqua Special Term, ad judging that a certain contract entered into between the defendants Walter I. Blystone, Frederick A. Dorman and Charles H. Wiborg, as members of the board of public…

<p>Appeal by the plaintiffs, Maria House and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 10th day of December, 1907, pursuant to an order entered in said clerk’s office on the 2d day of October, 1907, dismissing the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action.</p> <p>The action is brought to restrain the statutory foreclosure of a mortgage given October 13, 1870, to secure the payment of $400, the final payment of which was due and payable four years from the date thereof.</p> <p>The mortgage was given by the husband of one of the plaintiffs, Maria House, she joining in the mortgage. The husband died in 1895, and his son, the coplaintiff, became the owner of the mortgaged premises under and by his last will and testament, subject to the wife’s right of dower. The mortgage was given to one Cynthia Gilbert, who died in 1902, and thereafter the defendant was appointed administrator of her estate. The mortgage contained the usual power of sale, and in April, 1903, notice was published by the administrator, setting forth that there was claimed to be due and payable at that time the sum of $938.75, the full amount unpaid thereon ; and that the mortgaged premises would be foreclosed by a sale at a stated time and place. The above facts were stated in the plaintiffs’ complaint, and it was further alleged upon information and belief that the indebtedness secured by the mortgage did not accrue within twenty years before the commencement of the foreclosure proceeding; that no payments had been made upon the mortgage within twenty years after the mortgage debt became due and payable, followed by the further allegation that the mortgage and the debt secured thereby were barred by the Statute of Limitations, and that the debt had never been revived or extended by any payment or acknowledgment or promise in writing, signed by the party to be charged therewith. The complaint contained the further general allegation that the mortgage had ceased to be a lien upon the premises for the reason that the debt for which the mortgage was given to secure the payment of did not accrue within twenty years.</p> <p>The plaintiffs, after alleging that irreparable injury would be done them by the sale, demanded judgment enjoining the sale, and declaring that the mortgage has ceased to be a lien upon the premises, and directing its cancellation.</p>

Appeal by the defendant, The Koerner Benevolent Association, from a judgment of the Connty Court-of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 6th day of December, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal'by the defendant, the' Penn Yan, Keuka Park and Branohport Bailway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the. 22d day of November, 1906, upon the report of a referee.

<p>Master and servant — when contract of hiring entire — interest on successive balances.</p> <p>Evidence in an action to recover wages examined and held insufficient to establish that the services were rendered under separate contracts ending with each calendar year, but that the contract was single and continuous, terminable at any time at the will of either party.</p> <p>Such contract being single and continuous, the plaintiff is not entitled to recover interest on balances unpaid at the end of each year, but only from the time of the commencement of the action.</p> <p>Spring, J., dissented.</p>

<p>Sale—implied warranty against infringement of patents —estoppel of seller—w\hen buyer entitled to settle with patentee—damage — seller estopped from disputing amount paid in settlement.</p> <p>One who manufactures and sells an article for a special purpose impliedly warrants that the buyer can use the same without infringing letters patent owned by other parties.</p> <p>Actual eviction from the use of such article by process of law is not necessary to give the buyer a right of action against the seller. It is sufficient if there be a paramount outstanding title or patent covering the use of the article.</p> <p>When after the sale of an article action is brought against the buyer by a third party to enjoin the infringement of his patent thereon, and upon complaint being made to the seller, he advises the buyer to settle with the patentee upon the best terms obtainable, and it appears that the seller himself had previously paid a judgment to the patentee for infringement, he is estopped to deny that the use of the article by the buyer infringed the patent, or that his own title to the use of the article was paramount to that of the patentee.</p> <p>When a buyer of such patented article compromises an action for infringement brought by the patentee, he assumes the burden of showing in an action against his vendor for the damages sustained, not only that there was an outstanding paramount title which he could not successfully or prudently resist, but also the amount of damage sustained by reason of the failure of his title. However, as under such circumstances it is the buyer’s duty to minimize the damage, he need not contest by action the claims of the patentee if a successful defense thereto was plainly impossible, as where the patentee’s rights have been established in a prior action against the seller.</p> <p>Moreover, where the seller of such article, called upon by the buyer to defend the use as against a patentee, declines to make the defense and advises the seller to settle the claim, he is estopped from asserting that the plaintiff is not entitled to recover the amount paid in settlement, the same being less than the purchase price of the goods.</p>

<p>Appeal by the plaintiff, the Union Trust Company of Rochester, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 23d day of October, 1907, upon the decision of the court, rendered after a trial at the Monroe Special Term, sustaining the defendant’s demurrer to the complaint.</p> <p>The complaint in substance sets forth that an underwriting agreement was on or about November 23, 1905, made by and between the United States Independent Telephone Company, a foreign corporation, organized and existing under the laws of the State of New Jersey, as party of the first part thereto, one Lackey, who is therein designated the “ Manager,” and one other, parties of the second part, and the subscribers thereto, severally, parties of the third part; that defendant was one of the subscribers, or underwriters, who signed the agreement; that the underwriting agreement was intended to provide for the sale by the manager, as agent of the telephone company, to the persons who should subscribe this agreement for the amounts severally agreed therein, bonds of the company, amounting to $2,500,000 ; that these bonds were secured by a collateral trust mortgage given, by the telephone company to the Security Trust Company of Rochester, N. Y., the total issue of bonds thereby secured not to exceed in the aggregate $25,000,000; that defendant signed this agreement, thereby agreeing to take up and pay for at the times and in the manner stated in the contract bonds of the par value of $15,000 ; that the contract further provided that each underwriter should add an address after his signature to which all notices provided for by the contract might be mailed, and defendant indicated his address as Rochester; that defendant paid for and took up part of the bonds for which'he had subscribed, but failed to take up and pay for the balance, though duly notified to do so; that the telephone company has been at all times and is still in readiness to deliver to defendant the bonds so subscribed for and not yet taken up by defendant upon his paying to plaintiff the amount he agreed to pay therefor; that the telephone company for a sufficient consideration sold and assigned to plaintiff on or about October 16, 1906, the underwriting agreement and all moneys due or growing due thereon.</p>

<p>Beal property — grant to railroad reserving grade crossings — right to subway crossings.</p> <p>A deed of land to a railroad company, which provides that the grantor shall have three surface grade crossings at points to be designated by him shows that the grantor, with full knowledge of the lay of his farm and the uses to which the various parts were put, thought that such crossings were all that were “reasonably necessary,” and he cannot later compel the road to construct a subway crossing for his accommodation, although he offers to surrender some of his rights to grade crossings.</p> <p>It is immaterial that the grantor was ignorant of the contemplated grade,, for, if so, he could have withheld the deed until the grade was established for his information.</p> <p>The parties having established their respective rights between themselves without the assistance of the courts and regardless of the statute, the court has no right to interfere.</p>

Appeal by the Comptroller of the State of New York from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 3d day of July, 1907, modifying a prior decree fixing a transfer tax and denying his motion to dismiss-an appeal by the executors.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. The determination desired involves the constitutionality of chapter 734 of the Laws of 1904. The act is a general one creating a permanent commission with authority to regulate the flow of watercourses in the State “in aid of the public health and safety.” The body vested with the power was designated the River Improvement Commission.

Appeal by the plaintiff, Charles L. Chappell, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Miagara on the 13th day of January, 1908, granting the defendant’s motion for a change of venue from the county of Miagara to the county of Schenectady.

Appeal by the defendant, the Gustave Stiokley Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 27tli day of February, 1907, upon the verdict of a jury for $200, and also from an order bearing date the 21st day of February, 1907, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by The People of the State of New York, by John K. Patterson, Jr., district attorney of Chautauqua county, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Chautauqua on the 9th day of December, 1907, discharging the relator from the custody of the keeper of the Erie County Penitentiary upon the return to a writ of habeas corpus.

Appeal by the defendants, The City of Rome and others, from . an order of the County Court of Oneida county, entered in the office of the clerk of said county on the 15th day of May, 1907, seting aside the verdict of a jury theretofore rendered in favor of the defendants and granting a new trial of the action.

Appeal by the defendants, Caroline Houck and others, as surviving executors, etc., 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 Erie on the 9th day of October, 1907, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the said defendants’ demurrers to the complaint.

Separate appeals by Charles E. Congdon, as executor, etc., and Charles B. McCoy from certain parts of a decree of the Surrogate’s Court of the county of Cattaraugus, entered in said Surrogate’s Court on the 12th day of October, 1906, distributing a trust fund.

Appeal by the plaintiff, George Clinton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 3d day of July, 1906, upon the report of a referee. Judgment and order affirmed, with costs, upon the opinion of Tuttle, referee.

Appeal by the defendant, Henry H. Goldsmith, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, and from an order denying, the defendant’s motion for a new trial.

Appeal by the petitioners, Edward E. Warren and another, Horn an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of September, 1907.

Appeal by the plaintiffs, Mary J. Bennett and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16th day of March, 190.7, upon the decision of the court rendered after a trial at the Westchester Trial Term, both parties having moved for the direction of a verdict, with notice of an intention to bring up for review an order dated the 29th day of January, 1907 and entered in said…

Appeal by the plaintiff, Amelia P. Stanton, from an interlocutory judgment of the Supreme Court in favor of the defendant Ralph Granger, entered in the office of the clerk of the county of Kings on the 25th day of June, 190.7, upon the decision of the court rendered after a trial at the Kings County Special Term, sustaining the said defendant’s demurrer to the amended complaint.

<p>Appeal by the plaintiff, Hattie C. Lamb, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 29th day of October, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Nassau Trial Term.</p> <p>This is an action for damages for trespassing on the plaintiff’s land and cutting down and carrying away growing timber.</p> <p>The complaint is that “ the defendant, by his agents and servants, entered into and upon the plaintiff’s said premises ” and cut down and carried away the said timber.</p> <p>The evidence was as follows:</p> <p>In February, 1905, the defendant sold the standing timber on his woodland to one Christ by a simple contract. In the following May the defendant conveyed the said land to the plaintiff by a full covenant warranty deed, which was at once recorded. Afterwards Christ entered on the land and cut down part of the timber and took it away.</p> <p>The defendant did not notify Christ that he had sold the land, and the latter did not know of that fact when he entered, etc., nor did the defendant inform the plaintiff nor did she have knowledge when he conveyed to her that he had sold the timber to Christ.</p> <p>The learned trial Judge granted a non-suit.</p>

<p>Appeal by the defendant, the Whale Creek Iron Works, 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 22d day of March, 1907, upon the verdicL of a jury for $1,500, and also from an order bearing date the 21st day of March, 1907, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Jeremiah G-lynn, from an order of the Supreme Court, made at the Dutchess County Trial Term and entered in the office of the clerk of the county of Dutchess on the 5th day of December, 1906, setting aside the verdict of a jury in favor of the plaintiff for $5,000 and granting a new trial.

<p>Appeal by the defendants, Peter H. Havey and others, composing the firm of Peter H. Havey and Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 16th day of April, 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 10tli day of May, 1907, denying the defendants’ motion for a new trial made upon the minutes.</p>

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

Appeal by the defendants, Henry S. Stearns and another, from an interlocutory judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 12tli day of September, 1907, upon the decision of the court, a trial by jury having been waived. This is an action of partition of real estate.

<p>Cebtioeaei issued out of the Supreme Court and attested on the 3d day of August, 1906, directed to John H. O’Brien, as fire commissioner of the city of Hew York, and another, commanding them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings had in relation to the dismissal of the relator from the fire department of the city of Hew York.</p>

<p>Municipal corporation — certiorari to review dismissal of police officer, city of Mew York — order confirmed.</p> <p>Certiorari to review the dismissal of a police officer for intoxication. Evidence examined, and held, that the relator was properly fonnd guilty.</p> <p>The courts have no power to review the punishment inflicted on a police officer by the commissioners, unless they act without evidence or legal cause. Woodward and Rich, JJ., dissented.</p>

Appeal by the defendant, the Pioneer Iron Works, 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 6th day of November, 1907, denying the defendant’s motion that the complaint be made more definite and certain.

Appeal by Franklin S. Holmes from so muck of 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 4th day of Hovember, 1907, as confirms the report of a referee and directs the appellant to complete his purchase of the property sold at a partition sale herein.

Appeal by the defendant, The Moore Blind Stitcher and. Overseamer 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 Richmond on the 23d day of November, 1907, denying the defendant’s motion to open a default.

Appeal by the defendant, William Schimper and 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 17th day of June, 1907, upon the verdict of a jury for $1,500, 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.

<p>Appeal by The City of Hew York from so much of 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 Nassau on the 20th day of June, 1907, as taxes the fees and expenses of the commissioners and the costs, allowances, etc., of various attorneys for the claimants.</p>

Appeal by the plaintiff, Celia Kister, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of January, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of January, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Anna Springstead and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of March', 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Joseph Simmons, from a judgment of the County Court of Kings county, rendered on the 27th day of May, 1907, convicting him of the crime of grand larceny in the first degree.

Appeal by the defendants, Charles H. Acker and another, from a judgment of the Municipal Court of the City of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 15th day of November, 1907, in an action brought to recover damages for personal injuries sustained by the plaintiff, a journeyman plumber while working upon premises owned by the defendants.

<p>Appeal by the defendant, Edward Stone, from a judgment of the County Court of Kings county, rendered on the 27th day of May, 1907, convicting the defendant of the crime of grand larceny in the first degree.</p>

Appeal by the defendant, Daniel O’Brien, from a judgment of the Children’s Court, second division, borough of Brooklyn, rendered on the 19th day of June, 1905, convicting the defendant of the. crime of arson in the second degree, and also from an order made on the 29th day of June, 1905, denying the defendant’s motion for a new trial.

Appeal by the defendants, George 0. Hendrickson and others, board of education of the Huntington Hnion School, 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 Suffolk on the 11th day of June, 1907, granting a peremptory writ of mandamus.

<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, Israel Mesohneck, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 30th day of September, 1907.

<p>Appeal by the defendant, the Morse Dry Dock and Repair Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of December, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of December, 1906, as amended nunopro tunc by an order entered on the 21st day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Executor and administrator — Services rendered to decedent — failure of, proof.</p> <p>Evidence in an action to recover for services alleged' to have been rendered to a decedent during his lifetime examined, and held, that the plaintiff had failed to establish her case by the clear and convincing evidence required in such actions, and that it was error to submit the issues to the jury.</p>

Appeal by the plaintiff, Jeannie L. Conklin, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of January, 1907.

Appeal by the plaintiff, Jeannie L. Conklin, from an order of ' the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of January, 1907, denying the plaintiff’s motion to punish the defendant for contempt of court for failing to pay alimony under a final judgment of divorce.

<p>Appeal by the defendant, Catherine A. Byan, 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 June, 1907, upon the verdict of a jury for $4,875, and also from an order entered in said clerk’s office on the 5th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence— pedestrian killed by surface car — facts establishing case for jury— duty of pedestrian— evidence — presumption.</p> <p>In an action to recover for the death of a pedestrian who was run over on a public highway by one of the defendant’s cars, which was moving south on the north-bound track, it is error to nonsuit at the close of the plaintiff’s case, where it is presumptively established that the intestate was walking south as pedestrians were accustomed to do along the north-bound track; that there was no headlight on the car; that no signals were given and that the motorman, within 300 feet of the intestate, after passing a delivery wagon, leaned out to speak to its occupants, to whom the intestate was then visible under an electric light. Gross negligence by the motorman is established by these facts. The intestate was not bound to do any specific thing to discover what he had no reason to expect, and it was for the jury to say what care, if any, should have been exercised under the circumstances disclosed to guard against such a danger, and whether in the exercise of such care he should have discovered and avoided the same.</p> <p>As it is presumed that the intestate knew the custom of running only northbound cars on the east track, and that he did not know that this custom had been temporarily abandoned because of an obstruction to the west track, the burden was upon the defendant to show that he had knowledge of the change.</p>

Appeal by the defendant, Ludwig & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 2d day of December, 1905, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 26th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the International Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 3d day of August, 1907, upon the decision of the court, rendered after a trial at the Fulton Trial Term without a jury, in an action brought to enjoin the maintenance of a dam upon the outlet of Lake Pleasant, Hamilton county, 27. Y.</p>

<p>Tort — malicious assessment — when action does not lie.</p> <p>A town assessor having jurisdiction of the property and person of one assessed is not liable as for a malicious assessment in erroneously assessing personal property which the plaintiff claimed to have' sold.</p> <p>The remedy of the party illegally assessed is by certiorari. •</p> <p>Appeal by the plaintiff, Lewis E. Hopkins, from an order of the County Court of Madison county, entered in the office of the clerk of said county on the 29th day of August, 1907, reversing a judgment of the Justice’s Court of the town of Eaton in favor of the plaintiff and. granting a new trial before another justice.</p>

Cebtiobabi issued out of the Supreme Court and attested on the 12th day of September, T903, directed to Nathan L. Miller, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in regard to the assessment of a license fee to be paid by the relator under section 181 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap. 558),* and the amount of…

Appeal by the defendant, Jesse H. Leonard, 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 23d day of March, 1907, upon the report of a referee. In 1896 one David H. Stanwix operated a brick yard in the city of Albany, and was the owner of certain horses, wagons and other personal property used in the business, and also of a quantity of brick.

.1 Appeal by the plaintiffs, Stephen Lee and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of, the county of Saratoga on the 31st day of May, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiffs’ case, upon a trial at the Saratoga Trial Term, and also from an order entered in said clerk’s office on the 31st day of May, 1907, directing the dismissal of the complaint.

<p>Appeal by the relator, Harry G\ Lake, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 22d day of April, 1907, denying the relator’s application for a writ of mandamus requiring the respondents to classify him into a grade as the treasurer of the Rome State Custodial Asylum.</p>

Appeal by the defendant, Willis A. Bayner, 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 Chemung on the 3d day of May, 1907, upon the report of a referee.

Appeal by the defendants, The Village of Waverly 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 Tioga on the 27th day of August, 1907, upon the decision of the court, rendered after a trial at the Broome Special Term, overruling the defendants’ demurrers to the complaint.

Appeal by the defendant, the International Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 15th day of April, 1907, upon the verdict of a jury for $1,375, and also from an order entered in said clerk’s office on the 16th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Ithaca Street 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 Tompkins on the 23d day of April, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 22d day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Troy Brick Company, fi;om a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bensselaer on the 14th day of January, 1907, upon the verdict of a jury for $2,200, and also from two orders entered in said clerk’s office on the 14th day of January, 1907, respectively denying the defendant’s motion for a new trial made upon the minutes and granting the plaintiff’s motion for an extra…

Certiorari issued out of the Supreme Court and attested on the 22d day of May, 1907, directed to Martin H. Glynn, as Comptroller of the State of ¡New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the fixing of a license fee and the assessment of a franchise tax to he paid by the relator for the year ending October 31,1905, under sections 181 and 182 of the Tax Law.

<p>Tax — sale of lands for non-payment of taxes — effect of invalidity of portion of assessment — evidence — presumption as to notice of assessment— title of State not perfected by subsequent tax sales — Statute of Limitations — period postponed until plaintiff can sue—party — ejectment to recover lands purchased by State — Comptroller proper defendant — champérty — conveyance of lands held adversely — when State not in actual possession — when possession of part not possession of whole — statutory construction— when State not a “person.”</p> <p>Where trustees of a school district have levied a 1ax on forest lands outside the district without notice to the non-resident owner, the defect is jurisdictional and invalidates a sale made by the Comptroller although it was also made to satisfy unpaid State, county, town and highway taxes, the assessment of which was valid.</p> <p>Where the State sells lands for unpaid taxes levied at different times, some of which are valid and others invalid, the title of dhe against whom the sale is made is not thereby divested. By mingling good and bad together the State cannot give a valid title to the property thus assessed.</p> <p>Where the trustees of a school district instead of ascertaining the value of property taxed and giving notice to the owner as required by sections 68 and 74 of title 7 of chapter 555 of the Laws of 1864, have merely taken the valuation on the last assessment roll of the town which included lands outside the school district, it will be presumed that they gave no notice to the owner, for no notice was required by the statute where the valuation was so obtained.</p> <p>The title of the State to lands bid in on such invalid sale is not perfected by a title acquired on subsequent tax sales, where they were bid off to the State as required by section 5 of chapter 402 of the Laws of 1881 without an opportunity ' for competition.</p> <p>Until there is a tribunal of some kind before which a claimant may assert his rights, the Statute of Limitations does not begin to run.</p> <p>As the State itself, as grantee, could not be made a party to an action or proceeding contesting the validity of a tax sale of vacant forest lands, and as any judgment against the Forest Commission having care and custody of such lands owned by the State would not have been binding upon the State, the owner of the lands sold bad no opportunity to contest the validity of the sale to the State until the Comptroller had advertised the sale as required by chapter 453 of the Laws of 1885, and hence the six months after chapter 448 of the Laws of 1885 took effect, upon the expiration of which time said act made the</p> <p>• Comptroller’s deed conclusive evidence of the validity of prior proceedings, did not begin to run until the advertisement by the Comptroller.</p> <p>An action of ejectment to recover possession of lands sold to the State under a void tax sale is properly brought against the Comptroller.</p> <p>The' Forest Commission cannot be deemed to be in actual adverse possession of lands held by the State under a void tax deed, so as to entitle the Comptroller to assert that a conveyance by the owner was champertous under .the Revised Statutes, providing that “ every grant of lands shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.”</p> <p>Spirit and purpose of the Champerty Law stated.</p> <p>The actual possession required by the statute to avoid a grant must be shown by plain and unequivocal proof. Actual adverse possession by the State is not shown by the fact that an employee of the Forest Commission collected money for a trespass, that fire notices were posted, that taxes were paid by the State, and that the Foi'est Commission executed leases covering small portions of the land for temporary camping purposes.</p> <p>In any event, the possession by the State was limited to the small portions actually leased, and did not extend to the whole tract.</p> <p>A deed of lands held adversely is good as against persons not standing in legal privity with him who holds adversely, and hence, as there is no privity between the Forest Commission and the State Comptroller, their rights being created by different statutes, possession by the Commission is not sufficient to make a deed of the owner whose lands were sold on a void tax sale champertous as against the State.</p> <p>The word “person,” as defined in section 5 of the Statutory Construction Law, does not include the Forest Commission, nor is the State a “ person ” within the meaning of that word as used in the Champerty Law.</p> <p>Kellogg, L, dissented.</p>

Appeal by the plaintiff, Tlialas S. Kilmer, as executor, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schenectady on the 9th day of August, 1907, upon the dismissal of the complaint by direction of the court as to the defendant Anthony Quackenbush, and upon the verdict of a jury as to the defendant Maggie E. Quackenbush, and also from an order entered in said clerk’s office on. the 12th day of…

<p>Appeal by Charles M. Higgins, one of the permanent receivers of the Brooklyn Bank in the City of Hew York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 5th day of February, 1908, approving a contract made by Bruyn Hasbrouck, the other receiver of said defendant, designating and employing counsel for both of said receivers and fixing the compensation of said counsel.</p>

Appeal by Jacob Wenner, individually, as sole executor and as trustee, etc., from a decree of the Surrogate’s Court of the county of Greene, entered in said Surrogate’s Court on the 7th day of June, 1907.

Appeal by the plaintiff, the Trojan Railway Company, from a judgment of the Supreme Court in favo'r of the defendants, entered in the office of the clerk of the county of Rensselaer on the 13th day of September, 1907, upon the decision of the court, rendered after a trial at the Rensselaer Special Term, sustaining the defendants’ demurrers to the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action, and dismissing said complaint,…

Appeal by the defendants, Edward F. Murphy, individually, etc., 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 7th day of February, 1908, directing that the trial of this action be preferred and set down for trial on a day specified.

<p>Appeal by the defendants, Stephen S. Whitney and others, from various portions of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 31st day of December, 1907, upon the report of the referee determining the title to real estate and directing a sale in an action for partition.</p>

<p>Appeal to Appellate Division — default in filing papers — jurisdiction to excuse default.</p> <p>When the case on appeal to the Appellate Division has been settled and filed, all subsequent proceedings with reference to the filing and serving the printed papers upon which the appeal is to be heard are part of the appeal, and a motion to excuse a default therein must be made to the Appellate Division, not to the Special Term.</p>

<p>Deposition—husband and wife — separation—misconduct of plaintiff prior to marriage.</p> <p>A defendant husband sued for separation is not entitled to examine a witness before trial de Tiene esse for the purpose of preserving testimony that the plaintiff prior to her marriage had fraudulently stated that she was a person of good moral character while as a matter of fact she maintained meretricious relations with another person. As such fact would be no defense to the action for separation, and is not material upon the question of alimony, the testimony of the witness sought to be examined is not material and necessary, as required by the Code of Civil Procedure.</p>

Appeal by petitioner, John E. Nitchie, 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, denying the petitioner’s application for a peremptory writ of mandamus.

<p>Appeal by the defendant, Albert F. Mando, 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 February, 1908.</p>

Appeal by the defendant, the Degnon-McLean Contracting 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 16th day of February, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 26th day of February, 1907, denying the said defendant’s motion for a new trial made upon the minutes.

<p>' Tenement House Act — sections 91 and 61 construed — height of ceilings.</p> <p>Booms in a tenement house whose ceilings are only two feet above the curb level, although in the rear they open on a court sunk seven feet six inches below the level of the curb, cannot, under section 91 of the Tenement House Act, be used for living purposes.</p> <p>The curb level is the primary factor in determining the height of ceilings, and the statute cannot be evaded by excavating a court for the purpose of creating an artificial surface below the street level.</p> <p>Such sunken courts being separated at the back from a private way which is at the curb level, are to be treated as inner courts, and under section 61, where such courts on adjoining lots meet to form one, that court must be twenty-four feet wide for a house sixty feet in height.</p> <p>In construing statutes the intention of the Legislature is controlling, and the words “and” and “or” are convertible as the sense and intent of the lawmakers may require. The court in construing the Tenement House Act will take judicial notice of the report of the commission from which it emanated.</p> <p>Any waiver of water-proofing by the commissioner of the tenement house department before it was intended to use rooms for human habitation is not available if they are to be so used.</p> <p>A demurrer to an alternative writ of mandamus admits the facts alleged, but not the deductions drawn therefrom.</p>

<p>Eminent domain — damages to leasehold — fixtures.</p> <p>By the surrender of a leasehold estate to the lessor, upon the property being taken in condemnation proceedings, the lessee necessarily parts with every claim to damage, not only to the leasehold estate itself, but to everything appurtenant thereto, notwithstanding an attempted reservation in the instrument of surrender.</p> <p>Damage to permanent fixtures is part of the damage to the leasehold estate, and not to the fixtures considered separately, and a right to any award for such damage is surrendered with the lease. The usability of fixtures which remain personalty for railroad purposes is terminated by and in consequence of the surrender of the leases.</p> <p>A structure erected under a lease of a ferry franchise revocable by the city at will, even though extending in front of a bulkhead leased by the company, must be only temporary in character, and the revocation of the city lease revokes the right to maintain the structure.</p>

<p>Trial — preference—notice of motion.</p> <p>It is not necessary that a notice of motion for a preference be served at the same time as the notice of trial. It is sufficient if it be served at any time within which the cause might have been noticed for trial.</p>

Appeal by the defendants, William P. Homans 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 Hew York on the 26th day of December, 1907, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, Count W. W eeks, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 8th day of November, 1906, upon the decision of the court rendered after a trial at the New York Special Term. Also an appeal by the plaintiff, Oakley Weeks, from the same judgment except so much thereof as directs a payment in his favor.

Appeal by the applicant, James L. Watson, 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 February, 1908.*

Appeal by the plaintiff, Amzi L. Barber, 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 blew York on the 6th day of December, 1907, denying the plaintiff’s motion to strike out certain allegations from the answer of the defendant Arthur W. Sewall and of the other defendants.

Appeal by the defendant, Ida F. Grote, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 12th day of December, 1907, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the plaintiff’s demurrer to three separate defenses set up in the answer of the said defendant.

<p>Appeal by the plaintiff, Sigmund Heftelberger, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1908, upon the verdict of a jury, and also from an order entered inlaid clerk’s office on the 2d day of January, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

review the order of reference entered in said dent’s office on the 1st day of August, 1907. h, Appeal by Henriette Muller from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of'ALeAV York on the 2d day of January, 1908, confirming the report of aVefmee and determining an attorney’s lien, with notice of an intentioh to bring up for

Appeal by the defendants, Harry Solomon and another, from a judgment of the Oourt of Special Sessions of the first division of the city of New York, rendered on the 16th day of December, 1907, convicting the defendants of a violation of section 675 of the Penal Code.

Appeal by the plaintiff, Edwin P. Shattuck, as receiver, etc., from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day of February, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the plaintiff’s demurrer to a separate and partial defense contained in the amended answer.

<p>Municipal corporation — lease of subways, city of New York — use of ducts for transmitting electric current to others—general rights of lessees.</p> <p>The Interborough Rapid Transit Company under its lease of subways in the city of New York, executed pursuant to the Rapid Transit Act, may use the ducts in said subways for the purpose of transmitting to other city railways the excess of electric current manufactured by it, provided that such use does not interfere with the primary object for which the city built the subway, or interfere with the operation of the Rapid Transit railroad, or the comfort and convenience of passengers.</p> <p>The lessee of real property is entitled to the exclusive use of demised premises for any purposes not prohibited by the lease and not amounting to waste or destruction of the subject-matter.</p> <p>Scott and Clarke, JJ., dissented, with opinion.</p>

<p>Appeal by the defendant, Marcus A. Eosenthal, 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 17th day of August, 1907, upon the decision of the court rendered after a trial at the Mew York Special Terra.-</p>

Separate appeals by John E. Roosevelt and by Nannie V. Roosevelt from certain specified parts of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of November, 1907, providing, in substance, that John E. Roosevelt and Constant A. Andrews, the surviving members of the committee of the estate of the incompetent, be removed as such committee and prepare and file an account of their…

Appeal by the plaintiff, Manhasset Point Company, 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 13th day of January, 1908, upon the dismissal of the complaint by direction of the court on the opening of the case at the New York Trial Term, upon the ground that the complaint fails to state facts sufficient to constitute a cause of action.

Appeal by the plaintiff, Thomas O’Donnell, 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 November, 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.

<p>Mechanic’s lien — counterclaims not available to contractor and owner.</p> <p>In an action brought by a sub-contractor to foreclose a mechanic’s lien the general contractor cannot counterclaim for the plaintiff's delay in completing the work where the delay was caused by its own failure to prepare the foundations for the ironwork within the time specified and the plaintiff after being permitted to proceed with the work completed it within a reasonable time.</p> <p>Nor can the owner counterclaim against the sub-contractor, which is under no contract obligation to him, without having his damages fixed as between himself and the general contractor and introducing in evidence the contract between them.</p>

Appeal by the petitioner, The City of Mew York, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 18th day of December, 1907, confirming the first partial and separate report of the commissioners of estimate and assessment herein.

Appeal by the defendants, The Hew York Central and Hudson ¡River ¡Railroad Company 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 Hew York on the 16th day of ¡December, 1907, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the plaintiff’s demurrer to the fifth separate defense of new matter contained in the said defendants’ answer…

<p>Appeal by the defendants, Catherine E. Pierce 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 New York on the 26th day of April, 1907, upon the decision of the court rendered after a trial at the New York Special Term canceling a deed upon the ground of fraud, directing that a sufficient warranty deed be executed, and also directing an accounting.</p>

Appeal by the defendant, Arthur B. Proal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Flew York on the 30th day of April, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Edward L. Coster and another, as executors, etc., and by the defendants, Edward L. Coster 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 6th day of December, 1907, denying the appellants’ motion to vacate a certain judgment in favor of the defendant Charles O. Maas.

Appeal by the defendant, The American Law Book Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 11th day of May, 1905, tipon the decision of the court, rendered after a trial at the Hew York Special Term, granting an injunction.

<p>Appeal by the defendant, Charles Jordan, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 25th day of June, 1907, convicting the defendant of the crime of robbery in the first degree as a ¡second offense, also from separate orders denying respectively the defendant’s motions for a new trial and in arrest of judgment, and also from an order entered on the 27th day of December, 1907, denying his motion to resettle the proposed case on appeal.</p>

<p>Appeal by the defendants, Louis Seiferd 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 Hew York on the 2d day of December, 1907, upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

<p>Sale ■— goods to be manufactured — measure of damages.</p> <p>Upon the breach of an executory contract for the sale of a chattel the vendor has three remedies —to store the property for the vendee and sue for the purchase price; to sell it as agent for the vendee and recover any deficiency, or to keep the property and recover the difference between the contract price and the market value.</p> <p>On the vendee’s breach of a contract for the sale of goods to be manufactured, before they are manufactured, the measure of damages is the difference between the cost of manufacture and delivery and the contract price.</p> <p>It may be shown that the vendor sold a portion of the manufactured articles after the commencement of the action, and the profits he made upon the sale should he deducted from his damage.</p>

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

<p>Mortgage — foreclosure — receiver.</p> <p>Where, in an action to foreclose a mortgage the time limited for appearance of the defendant has not expired and no order directing service of the summons by publication has been made and the mortgage itself does not provide for the appointment of a receiver without notice and no affidavit showing that the security is insufficient has been filed, an order appointing a receiver without notice to the adverse party is void.</p> <p>A receiver clause in a mortgage gives no absolute right to the appointment of a receiver, that being regulated by sections 718 and 714 of the Code.</p>

<p>Application to remove Abraham A. Joseph from his office as an attorney and counselor at law.</p>

Appeal by the defendant, The Provident Life and Trust Company of Philadelphia, 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 January, 1908, denying the defendant’s motion that Henry W. Thurston be substituted in its place and stead as defendant herein, and that the defendant be discharged from liability on its paying into court the amount to be paid by its policy No.…

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 19th day of July, 1907, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 20tli day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Conditional salo — action for conversion against depositary of vendee — jurisdiction of Municipal Court—judgment — prior foreclosure res adjudicata.</p> <p>The Municipal Court of the city of Mew York has no jurisdiction to entertain an action for conversion brought by the vendor of a chattel, or his assignee, claiming under a contract of conditional sale, against a warehouseman with whom the chattel was stored by the conditional vendee. Article 4 of title 8 of the Municipal Court Act, limiting the jurisdiction of said court to actions to foreclose a lien upon a chattel sold on conditional sale, prohibits such action for conversion.</p> <p>Moreover, when the plaintiff in such action has obtained a judgment against the vendee foreclosing the lien upon the chattel, it is res adjudicata, establishing that the vendee, not the vendor, is the owner and bars a subsequent action for conversion against the depositary of the vendee.</p>

<p>Statute of Frauds — employment for a year commencing at a future date — master and servant — contract.</p> <p>An oral contract of employment for a year to commence at a future date is void under the Statute of Frauds.</p> <p>Evidence in an action to recover for the breach of an alleged contract of employment examined, and held, that a verdict for the plaintiff was against the weight of the evidence.</p>

Appeal by the defendant, Henry J. Hasenbein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 5tli day of June, 1907, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’,s office on the 13th day of June, 1907, denying the said defendant’s motion for a new trial made upon the minutes, in an action brought to recover damages for personal injuries alleged to have…

Appeal - by the defendant, Arthur S. Cooper, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1908, restraining the defendant, the International Bank, pendente lite from delivering to any person other than the plaintiff, any moneys or property now in its possession oiVned by plaintiff’s intestate during his lifetime, or in which lie had any interest, and…

<p>Judgment by stipulation—relief from legal error— partition.</p> <p>When an interlocutory judgment in partition has been entered on the stipulation of the parties as to their proportionate shares the judgment cannot be amended on motion because the parties were mistaken as to their shares under the statutes of descent.</p> <p>It seems, that relief should be obtained by a motion for relief from the stipulation and to vacate the interlocutory judgment.</p>

<p>Appeal by the defendant, Eugene Loeb, from an order of the Court of Special Sessions of the Peace of the first division of the city of Hew Y ork, entered in the office of the clerk of said court on the 15th day of January, 1908, denying the defendant’s motion for a new trial made upon the ground of newly-discovered evidence.</p>

Appeal by the defendant, the United Engineering and Contracting 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 7th day of November, 1907, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 18th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Uegligence — injury by fall into water tank— questions for jury.</p> <p>A plaintiff who entered defendant’s premises for the purpose of inspecting work in progress is not guilty of contributory negligence, as a matter of law, in stepping into a tank of scalding water which was sunk into the floor of a dimly-lighted cellar, even though he himself had installed the tank, if it appears that the tank was designed to be covered, that the plaintiff knew it was normally covered, and that he was given no warning that the cover had been removed.</p> <p>Under the circumstances the contributory negligence of the plaintiff and the' negligence of the defendant are questions for the jury.</p>

<p>Principal and agent — consignment of goods for sale — liability of agent.</p> <p>There can be no recovery as for goods sold when it appears that they were received by the defendant on consignment and he has neither sold nor withheld the goods, but merely retains them subject to the plaintiff's orders without asserting title or right to possession other than that derived from the consignment.</p>

Appeal by the defendant, Max Zucker, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered upon the verdict of a jury.

Appeal by the defendant, William A. Ringe, from a judgment of the Court of Special Sessions of the second division of the city of Hew York, rendered on the 9th day of December, 1907, convicting the defendant of a violation of the provisions of chapter 572 of the Laws of 1905,* and also from an order denying the defendant’s motion in arrest of judgment.

<p>Appeal by the defendants, James Johnston 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 Kings on the lltli day of January, 1908, upon the verdict of a jury, with notice of an intention to bring up for review an order entered in said clerk’s office on the 19th day of June, 1907, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the Orange County Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Orange on the 17th day of July, 1907, upon the verdict of a jury for §2,000, and also from an order entered in said clerk’s office on the 18th day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Arthur A. Clappe, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 20th day of May, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 29th day of May, 1907, denying the plaintiff’s motion for a new trial made…

<p>Principal and agent — broker’s action for commissions — immaterial technicality.</p> <p>Where a real estate broker has produced a purchaser willing and able to comply with the owner’s terms, the latter cannot escape liability for commissions by refusing to sell on the mere technical objection that the memorandum of acceptance presented by the broker did not provide for exactly the same interest terms, it the broker then and there offered to pay the difference.</p>

Appeal by the defendants, Marcus Michel and another, from a judgment of the Municipal Court of the city of Mew York in favor of the defendants Leder and Zellermeyer.

<p>Appeal by the defendant, The Terry and Tench Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tlie county of Westchester on the 10th day of J une, 1907, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

Appeal by the plaintiff, Max Colien, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 13th day of November, 1907, dismissing plaintiff’s complaint.

<p>Appeal by the defendant, Herman Joerg, as executor, etc., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 31st day of May, 1907.</p>

<p>Appeal by the defendants, Harry Crabtree and others, from an order of the Supreme Court, entered in the office of the clerk of the county of Orange on the 19th day of September, 1907, granting the plaintiff’s motion made upon the minutes to set aside the direction dismissing the complaint at the close of plaintiff’s case at the Orange Trial Term, and for a new trial of the action.</p>

Appeal by the petitioner, Arthur J. Heaney, the sole legatee under the will of Mary J. Heaney, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 19th day of ¡November, 1907.

<p>Negligence — collision of truck with trolley pole — reasonable care.</p> <p>A street railroad company is not negligent in maintaining a trolley pole outside ■ the curb on the lands of a ferry company where it appears that a pole was necessary at or near that place and that all the surrounding land was owned by the ferry company which had, on request, refused to allow the defendant to move the pole inside the curb or to make any change whatever in the physical situation at the spot.</p> <p>Nor under the circumstances was the failure of the railroad company to maintain a hubstone negligence.</p> <p>Tire reasonable care required of defendant did not require it to attempt condemnation proceedings to acquire laud to move the pole inside the curb, when its right to maintain such proceedings was doubtful.</p> <p>It seems, that the remedy of the plaintiff, who was injured because of his truck striking the pole, is against the ferry company.</p> <p>Rich, J., dissented.</p>

<p>Practice — renewing motion.</p> <p>The practice of moving before one judge at Special Term for the same relief which has theretofore been denied at a Special Term held by another judge is pot sanctioned by any provision of the Code and cannot be too strongly condemned. It is virtually an appeal from one Special Term to another.</p>

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

Appeal by the defendants, Louis Eoseno and others, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury.

Appeal by the defendant, the Long Island 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 29th day of January, 1907, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 30th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William B. Conrad and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in'the office of the clerk of the county of Kings on the 27th day of March, 1907, upon the verdict of a jury for $8,000, as reduced by the court to $3,500, and also from an order entered in said clerk’s office on the 20th day of March, 1907, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Rebecca Shuldiner, 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 1st day of April, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term. The action was to foreclose two mechanic’s liens, each one on a separate house on the same plot of land.

Appeal by the defendant, Grant Hugh Browne, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Orange on the 4th day of March, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes. The complaint is for the price of a stallion and mares sold by the plaintiff to the defendant.

Appeal by the relator, the Tillage of North Pelham, from an order of the Supreme Court, made at an adjourned term of the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of January, 1908,.deny-ing the relator’s motion for a peremptory writ of mandamus directing The New York, New Haven and Hartford Eailroad Company to change the name of its station of “ Pelham ’' to the name of “ North Pelham.’

Appeal by the plaintiff, IVIauiice J. Breen, 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 10th day cf January, 1905, upon the dismissal of the complaint upon the pleadings ai, the Kings County Trial Term.

Appeal by William J. Burlee, trustee in bankruptcy of the Marine Construction and Dry Dock Company, from a judgment of the Supreme Court in favor of the petitioners, entered in the office of the clerk of the county of Kings on the 11th day of June, 1907, upon the report of a referee. The proceeding is to enforce a lien on a vessel under section 3420 et seq. of the Code of Civil Procedure.

Appeal by the plaintiff, the De La Vergne Machine 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 4th day of Hovember, 1907, directing that all proceedings in this action be stayed until the entry of judgment in an action pending in the Supreme Court, brought by the Mew York and Brooklyn Brewing Company against the De La Yergne Machine Company.

<p>Cross-appeals by the defendants, Albert O. Fenn and others, and by the plaintiff, Julia Diefendorf, 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 3d day of February, 1908, granting a motion to vacate an order for the examination of the defendants and certain others before trial and denying the said motion as to the defendant A. 0. Fenn.</p> <p>The order was obtained after service of summons and before service of complaint.</p>

Appeal by the defendant, John B. West, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of November, 1907, upon the decision of the court, rendered after -a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, S. Pearson & Son, Incorporated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of December, 1906, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 10th day of December, 1906, denying the defendant’s motion fqr a new trial made upon the minutes.

Appeal by the plaintiff, The Excelsior Brewing Company, from a judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Kings on the 13th day of June, 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 31st day of May$ 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Certiorari — removal of police officer — when proceeding commenced — amendments.</p> <p>A proceeding by certiorari to review the action of the police commissioner under section 303'of the charter of Greater Mew York is commenced when the petition is presented to the court.</p> <p>An amendment to a petition and writ, though allowed two years after the issuance of the writ, which docs not change the averments, but states them more in detail and which is made before the respondent has filed his return, is not equivalent to the commencement of a new proceeding.</p> <p>The question as to whether an amendment was improperly allowed cannot be raised by an averment in the return, but only on motion to quash the writ at Special Term.</p> <p>Tha police commissioner of Mew York city is without power to remove a policeman from the force upon the report of a deputy that he has found the officer guilty, unless he has before him the evidence given upon the hearing held by the deputy.</p>

Appeal by Jennie G. Cusick from a judgment of the Supreme Court in favor of the petitioner, entered in the office of the clerk of the county of Suffolk on the 25th day of ¡November, 1907, pursuant to an order made at the Kings County Special Term and entered in said clerk’s office on the 14th day of ¡November, 1907, canceling and revoking a liquor tax certificate issued to the appellant for the excise year ending April 30, 1908, and also from the said order directing the…

Appeal by the plaintiff, Lucy II. Randolph, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 20th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.

<p>Labor Law — statutory construction —■ “ structure ” defined — negligence — injury on scaffold — height of scaffold.</p> <p>A scaffold consisting of single planks resting on the rungs of painters’ ladders erected in a car barn around the-sides of a street car in order to repair the roof of the car is “ furnished ” for the performance of labor in the repair of a “ structure ” within the meaning of section 18 of the Labor Law (Laws of 1897, chap. 415), which prohibits the erection of unsafe or unsuitable scaffold, hoists, etc., for the use of employees erecting, repairing or altering “ a house, building or structure.”</p> <p>The word “ structure ” in said section is not limited by the use of the words “house” and “building” to structures ejusdem generis, but includes all structures which like a “house” or “building,” require the use of scaffolding, hoists, etc., in their construction, alteration or repair.</p> <p>The statute was not intended for the protection of any particular 'class of mechanics, but to guard against the dangers arising from defective scaffolds.</p> <p>The height of a scaffold above the floor is not controlling, for it cannot be said that a scaffold must be at a given height to make the statute applicable.</p>

<p>lüegligence — death by fall from, scaffold — evidence — Labor Law —. charge.</p> <p>A staging in a subway constructed by placing boards on joists which are fastened by hooks to the iron work to enable workmen to scrape and paint the iron work is a scaffold within the meaning of section 18 of the Labor Law.</p> <p>Where it appears that a painter working on such a scaffold, which had been erected by a gang of “riggers," stepped upon the unsupported end of a short plank resting upon the long planks which formed the scaffold, and that the short plank tipped up and precipitated him head foremost upon the track below, fracturing his skull and lacerating the brain, the jury is justified in finding that death resulted from the fall, although there is expert testimony, based on an examination of the brain, that death was caused by apoplexy.</p> <p>In the absence of proof that the short plank was placed on the scaffold by one of the workmen for his own convenience, the jury was justified in finding that it was a part of the scaffold a's originally constructed.</p> <p>The master’s duty is continuing. He must maintain, as well as furnish, a safe scaffold, and where it appears that the foreman knew of the position of the short plank, the jury may find that the master adopted it as a part of the scaffold.</p> <p>It is not error for the court to refuse to charge that it was the duty of the master to provide merely “ a reasonably safe and secure scaffold,” for the statute requires that it be “safe,” not “reasonably safe.”</p>

<p>Landlord and tenant —negligence — death by fall down elevator shaft — lease construed — negligence of operator —• damages.</p> <p>A lease made out on a printed form furnished by the landlord must be construed most liberally in favor of the tenant, and a clause which exempts the landlord from liability “for damage to either person or property occasioned by the elevators, boilers, machinery or anything pertaining thereto, th.e risk of- such damage being assumed by the tenant,” will not be held to grant immunity to the landlord from the negligence of a servant in charge of the elevator.</p> <p>In an action to recover damages for the death of a tenant killed by falling down an elevator shaft, evidence tending to show that the accident was caused by the negligence of the elevator man in starting the elevator as the deceased was about to step upon it examined, and held, that a verdict for the plaintiff was justified.</p> <p>A verdict of §40,000 for negligence causing the death of aman who contributed from §8,000 to §10,000 a year to the support of his family, consisting of himself, his wife and three infant daughters, is not excessive.</p>

<p>Appeal by the plaintiff, Fred H. Dittman, 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 8th day of October, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

Appeal by the plaintiff, Louis Tolkon, from a judgment of the Supreme Court in favor of. the defendant, entered in the office of the clerk ot the county of Kings on the 11th day of February, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term.

Appeal by the defendant, Adenria Jeina, from a judgment of the Supreme Court rendered on the 26th day of January, 1907, after a trial at the Kings County Trial Term, convicting the defendant of the crime of murder in the second degree, and also from an order denying the defendant’s motion for a new trial.

<p>Appeal by Francisco L. Farrell and others from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 31st day of October, 1907.</p>

<p>Trial — right of plaintiff to sue admitted hy answer — estoppel of defendant — insurance — failure to pay premium caused by act of insurer.</p> <p>When the answer of a life insurance company expressly alleges that the policy sued upon was issued in favor of the plaintiff and litigates the case upon the sole issue as to whether the policy had lapsed, it is an election to pay the amount of the policy to the plaintiff in case the technical defense fails and the defendant is not after verdict rendered entitled to a dismissal of the complaint upon the ground that the action should have been brought by the representatives of the insured, especially when an action by such representative is barred.</p> <p>Evidence in such action examined, and held, that the question as to whether a default m payment of premiums was due to the wrongful act of the defendant was properly left to the jury and that a verdict for the plaintiff was warranted by the evidence.</p>

Appeal by the plaintiff, Francis Lawless, an infant, by James Lawless, his guardian ad litem, from an interlocutory judgment of the Supreme Court in favor of the defendant, Emma August, entered in the office of the cleric of the county of Kings on the 12th day of October, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the said defendant’s demurrer to the complaint upon the ground that it fails to state facts…

<p>Cross-appeals by Margaret ¡N". Harteau and others, as trustees, etc., of Henry Harteau, deceased, and others, and by Harriette A. H. Berry, the contestant, from various parts of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 22d day of July, 1907, settling the accounts of the executors and trustees of Henry Harteau, deceased.</p>

<p>Evidence — impeachment of witness by his affidavit —• practice.</p> <p>Where the defendant’s witness has testified that he was asked by the plaintiff to give perjured testimony as to the manner in which the plaintiff received Ilia injuries and has denied that he had sworn to a statement as to the manner in which the injuries occurred, the sworn statement is admissible to contradict him. It is unnecessary that the statement he proved by the testimony of the witness himself or that he he cross-examined and asked if the statements in it were true.</p> <p>The custom of cross-examining a witness not a party as to whether he signed a paper or made oral declarations is merely for the purpose ol giving notice to the adverse party, so that he may keep the witness in court to contradict the statements if they be subsequently put in evidence. If this be not done, notice must be given in some other way, otherwise if the witness be gone the evidence will not be allowed. Where the witness is in court, there is no occasion to invoke the rule.</p>

Appeai by Louisa B. Van Nostrand, individually and as execu trix, etc., from an order of the Supreme Court, made at the Kings County Special Term aud entered in the office of the clerk of the county of Kings on the 28tli day of September, 1907, in so far as such order denied the appellant’s motion to vacate a judgment entered herein on the 31st day of July, 1907, upon an order of the Appellate Division dismissing an appeal from an order.

Appeal by defendant, Theodore A. Bingham, as police commissioner of' the city of Hew 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 26th day of Hovember, 1907, granting the relator’s motion for an alternative writ of mandamus. Also an appeal by the relator, Joseph Price, from so much of said order as denies his application for a peremptory writ of mandamus.

Appeal by the defendant, Andrew Logan, 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 March, 1908, as amended, appointing a receiver of certain real property owned by the defendant.

<p>Appeal by the defendants, George W. Loft and another, from a judgment of the Supreme Court in favor of the plaintiff and the defendant Blom, entered in the office of tire clerk of the county of Dew York on the 6th (jay of December, 1906, upon the decision of the court rendered after a trial at the Dew York Special Term.</p>

Appeals by Edward Warren Henck 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 2d day of March, 1908, directing Edward Harding, as assignee, to sell certain securities held by him and to distribute the proceeds.

<p>Actions — splitting causes — rule in law and equity — assignment of portion of claim —joinder of all parties in interest — demurrer for defect of parties — pleading — effect of failure to allege non-payment.</p> <p>There can be but one action at law for a single breach of contract, and if several actions be brought for different parts of a claim, the pendency of the first may be pleaded in abatement of the other and a judgment upon the merits in either is a bar to the other.</p> <p>But in equity the assignee of a part of a claim may maintain a suit to enforce the same, and if a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in as provided in section 452 of the Code of Civil Procedure.</p> <p>The court, however, has no power to bring in additional parties in an action at law to recover a money judgment.</p> <p>The assignee of a portion of an indivisible claim for commissions due for procuring a sale of real estate cannot bring a legal action against the debtor without making all persons who have an interest in the claim parties, so that the rights of all may he determined in one action.</p> <p>Where it appears upon the face of the complaint of such assignee that the assignors have retained an interest in the original claim and that a final and complete determination of the defendants’ liability cannot he ascertained without their presence there is a defect of parties and the objection may be taken by demurrer.</p> <p>As the owner of an indivisible claim must enforce the same in a single legal action he can convey no greater right to his assignee.</p> <p>A complaint to recover for the breach of a contract to pay commissions for procuring a sale of lands does not state a cause of action if it fail to allege nonpayment, the same being of the essence of the action.</p>

Appeal by the plaintiff, John J. Gibbons, as director, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19th day of March, 1908, granting a motion made on behalf of the defendant San Luis Mining Company to vacate a subpoena duces tecum.

Appeal by the plaintiff, John T. Eagan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 6th day of January, 1908, upon the decision of the court rendered after a trial at the Hew York Trial Term, a jury having been waived, dismissing the complaint.

Appeal by Ferdinand R. Bain from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 21st day of December, 1907, denying his motion to vacate a decree theretofore entered herein, as to him, and for leave to file objections to the accounts of the administrators.

Appeal by the defendant, Herman Hubbard, Jr., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 18th day of February, 1908, granting, upon terms, the said defendant’s motion to open a default.

<p>Costs — recovery of less than $500 in Supreme Court, New York and Kings counties.</p> <p>Where the plaintiff recovers less than $500 in an action in the Supreme Court in the county of New York which could have been laid, except for the amount claimed, in the City Court of the city of New York or the County Court of Kings county, in which the defendant could have been personally served, he is not, by virtue of subdivision 5 of section 3338 of the Code of Civil Procedure, entitled to costs or disbursements.</p> <p>The mere fact that the plaintiff’s counsel alleged that he knew of no method of making personal service is not sufficient to overcome the fact that such service could bavebeen made, where the defendant is a domestic corporation with its principal office in the county of Kings, and the residence of its president and directors is in. the county of New York.</p>

Appeal by the plaintiff, Mary E. Maurer, from a judgment of the Supreme Court in. favor of the defendants, entered in the office of the cleric of 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 plaintiff’s complaint.

Appeal by the defendant, J. M. Guffey Petroleum. 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 Y.orlc on the 16th day of October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of October, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Fitzgibbons Boiler Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rew York on the 23d day of October, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Rew York Trial Term.

Appeal by the plaintiff, Adolph Baumann, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 13th day of January, 1908, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial.

<p>Trial — inadequate verdict — power of trial court — erroneous charge.</p> <p>l</p> <p>While in an action to recover for personal injuries the trial court may set aside a verdict and grant a new trial on the ground that the verdict is inadequate, it is without power to instruct the jury that the verdict is insufficient and that they must reconsider the case and give the plaintiff reasonable and adequate compensation.</p> <p>Scott, J., dissented.</p>

Appeal by the defendant, the Forty-second Street, IVIanhattanville and St. Nicholas Avenue 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 Hew York on the 17th day of June, 1907, upon the verdict of a jury for $2,500, 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.

Appeal by the defendant, Theodore A. Bingham, individually and as police commissioner of the city of Hew'York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of January, 1908, continuing a temporary injunction pendente lite.

Appeal- hy the defendants, Theodore A. Bingham, as police commissioner of the .city of New York, 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 14th day of February, 1908, continuing a temporary injunction pendente lite.

Appeal by the defendants, Theodore A. Bingham, as police commissioner of the city of Mew York, 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 14th day of February, 1908, continuing a temporary injunction pendente lite.

Appeal by the defendants, Theodore A. Bingham, as police commissioner of the city of New York, 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 Mew York on the 14th day of February, 1908, continuing a temporary injunction pendente lite.

Appeal by the defendants, Theodore A. Bingham, individually and as police commissioner of the city of Mew York, 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 14th day of February, 1908, continuing a temporary injunction pendente lite.

<p>Appeal by the relator, C. Austin Crane, from an order of thé Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of March, 1908, denying an application for a peremptory or alternative writ of mandamus to compel the respondent to certify the relator’s bill for services rendered the city.</p>

Appeal by William Schuyler Jackson, as Attorney-General 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 the clerk of the county of Mew York on the 24th day of October, 1907, denying the appellant’s motion for leave to bring an action against the Interborough-Metropolitan Company for the purpose of vacating its charter and annulling its corporate existence.

Appeal by the defendant, the New York Contracting Company Pennsylvania Terminal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of October, 1907, upon the verdict of a jury for. $16,500, and also from an order entered in said clerk’s office on the 8tli day of November, 1907, denying the defendant’s motion for a new trial made upon the lhiiuites, in an action to recover damages for…

Motior by the plaintiff, George H. Lamprecht, Jr., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term held in November, 1907.

Appeal by the defendant, Post & McCord, from án order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1908, denying the defendant’s motion for a bill of particulars.

Appeal by tbe plaintiff, William M. Amory, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 24th day of December, 1907, upon tbe dismissal of the complaint by direction of the court after the plaintiff’s opening on a trial at the Mew York Trial Term.

Appeal by Harry L. Horton from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of February, 1901, as confirms the award of the commissioners of estimate and assessment as to certain designated land.

Appeal by the plaintiff, Michael O’Rourke, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 18th day of December, 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 Hew York Trial Term.

Appeal by the defendant, the Utopia Land 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 30th day of November, 1907, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered in the office of the clerk of said court on the 30th day of April, 1907.

<p>Malicious prosecution — defense—termination of prior action.</p> <p>The termination of a criminal proceeding brought about by the fraud of the accused, or by compromise, or by acts which prevent a judicial investigation of the charge, is not sufficient to support an action for malicious prosecution.</p> <p>It is a good defense to an action for malicious prosecution that the dismissal of the proceedings on which the action is based was due to the fact that before the warrant could be served the plaintiff to avoid trial left the country where it was issued and remained absent therefrom, thereby procuzing the dismissal of the proceedings by lapse of time.</p>

<p>Contempt — effect of affirmance on appeal — corporation—examination — default of retired officer — punishment.</p> <p>Where an order adjudging one guilty of contempt was affirmed on appeal, the question of guilt is resacljvMcata,, but the question of punishment is still open.</p> <p>A person will not be punished as for a contempt for failure to do an act which he cannot do. Thus a corporation which has been adjudged guilty of contempt because of the failure of its president to appear for examination will not be punished where it is shown that before the order for examination was made the person named therein as president had in good faith disposed of his stock, ceased to be either president or director and severed all connection with the corporation so that it had no control or jurisdiction over him. Under such circumstances the imposition of a penalty would be unjust.</p>

Appeal by the plaintiff, Jane L. Barton, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of January, 1908, upon the dismissal of the complaint by direction of the court upon the plaintiff’s opening at the New Yopk .Trial Term.

<p>Husband and wife — pleading — separation — adultery of defendant — answer — marriage.</p> <p>A mere allegation of adultery does not state a cause of action for separation under section 1762 of the Code of Civil Procedure.</p> <p>An answer, in such an action, which denies knowledge or information §ufficient to form a bblief as to the marriage, cannot be stricken out as frivolous where it appears by affidavit that defendant knows of no such marriage, and that if ever entered into it was at a time when he was either drugged or so intoxicated as to be unable to understand that he was contracting a marital relation.</p> <p>And where the complaint avers specific acts of adultery within five years and that prior to and subsequent to those dates defendant committed the same offense, an answer denying that five years have not elapsed since plaintiff discovered the adultery is not frivolous.</p> <p>McLaughlin, J., dissented in part, with opinion.</p>

<p>Appeal by the plaintiff, the ¿Etna Elevator Company, from an order of the Appellate Term of the Supreme Court, bearing date the 29th day of November, 1907, and entered in the office of the clerk of the county of New York, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan in favor of the defendants. (See 56 Misc. Rep. 565, and 57 id. 632.)</p>

Appeal by the defendants, Alexander McDonald and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of April, 1908, granting the plaintiffs’ motion for a reference on the ground that the trial of the action would involve the examination of a long account.

<p>Blaster and servant — negligence■—-death by fall from stepladder — ¿ontributory negligence-—Employers’ Liability Act — insufficient notice —negligence of fellow-servant and assumption of risk.</p> <p>The plaintiff's intestate, a painter of sixteen years’ experience, was killed by falling from a stepladder five and a half feet high which he selected for use at the direction of the defendant’s foreman. The legs of the ladder were held from spreading by ropes instead of iron rods or side pieces. There was no proof as to what caused intestate to fall, and when last seen he was standing upon the extreme top of the ladder reaching out to paint the ceiling or upper part of the side walls. After the accident, the ladder was found unbroken. On all the evidence,</p> <p>Hihl, that the-plaintiff had failed to prove the intestate free from contributory-negligence.</p> <p>There can he no recovery under the Employers’ Liability Act unless the person injured was at the time exercising due care and diligence.</p> <p>A notice stating that the cause of injury was due to negligence in not providing a safe and proper place to work and in omitting to furnish safe and proper appliances and implements with which to work, does not meet the requirements of the Employers’ Liability Act. While such notice need not state the defective conditions complained of, it must state what caused the injury and how the accident happened in such a way that the employer may be apprised of what took place and thus be enabled to make an intelligent investigation.</p> <p>When a notice is insufficient to bring the case within the Employers' Liability Act and the plaintiff therefore relegated to the rule of the common law the negligence, if any, of a foreman in directing the use of a defective stepladder, good ones having been provided, is that of a fellow-servant, and the person injured assumes the risk of using such ladder even if defective, having the same knowledge of its condition as the defendant.</p>

Appeal by the defendant, Herbert H. Yreeland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d day of January, 1908, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 3d day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The San Domingo Improvement Company of Hew York, from an order of- the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of January, 1908, denying the defendant’s motion to strike out part of the complaint as redundant and irrelevant.

Appeal by the defendant, James L. Crawford, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the fourth cause of action in the amended complaint.

<p>Appeal by the plaintiff, Melissa Walton Compton, 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 29th day of August, 1907, denying the plaintiff’s motion to punish the defendant for contempt of court in failing to pay alimony, awarded by a judgment theretofore entered herein.</p>

<p>Appeal by the defendants, Morris Bedeff and another, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 14th day of October, 1907, convicting the said defendants of the crime of burglary in the third degree, and also from an order denying the defendants’ motion for a new trial.</p>

Appeal by the defendant, the Union Railway 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 1st 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 amended complaint upon the ground that it fails to state facts sufficient to constitute a cause of action.

.Appeal by James Bartlett Hammond, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of March, 1908, fixing the amount to be allowed petitioner herein for his costs and expenses in this proceeding.

Appeal by the defendant, John W. Ferguson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dew York on the 26th day of Dovember, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Cornelius J. Jackson, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 19th day of February, 1907, convicting the defendant of the crime of manslaughter in the second degree, and also from an order denying the defendant’s motions for a new trial and in arrest of judgment.

Appeal by the defendants, the Crown Perfumery Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 11th day of January, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term in a stockholder’s action brought to set aside certain resolutions of the board of directors aiid to compel the repayment to the corporation of moneys received by certain…

Appeal by Gus Reed, the defendant above named, 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 JSTew York on the 27th day of March, 1908.

Appeal by the relator, H. Koehler & Co., 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 March 1908, denying the relator’s motion for a peremptory or alternative writ of mandamus.

<p>Incompetent persons — commission de lunático inquirendo—who may petition — facts essential to appointment of committee — discretion of court — appeal to Appellate Division — evidence — facts not warranting appointment of committee.</p> <p>By virtue of the statute, any person, even a stranger, may present a petition for the issuance of a commission to inquire into the mental condition of an alleged incompetent, and hence a distant relative may present such petition although not a resident of this State.</p> <p>In order to justify the issuance of such commission two things must presumptively appear to the satisfaction of the court: First, that the person proceeded against is incompetent, and, secondly, that a committee ought in the exercise of a sound discretion to be appointed. Incompetency alone is insufficient, for the situation may be such that no committee is necessary.</p> <p>The court is required, to exercise a “sound" discretion, which means that special care must be exercised, as a citizen may be deprived not only of possession of his property, but of his personal liberty.</p> <p>The Appellate Division may review the discretion of the Special Term in granting an order directing that a commission de lunático inquirendo issue.</p> <p>On an application for such commission the Special Term is not limited to matters set out in the petition and affidavits supporting it, but interested parties may be heard in opposition.</p> <p>Evidence examined, and held, that the court in the exercise of a sound discretion should not appoint a committee of the property of a man ninety-five years of age who lived in his own home under the care of a housekeeper and others and who had placed his property in. trust with competent persons to pay the income to him for life with remainders over to charitable purposes, even though he was suffering from senile debility and dullness of intellect common to persons of his age.</p>

Appeal by the defendant, Albert Blackburne, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of May, 1908, granting the plaintiff’s application for an inspection and leave to copy a certain alleged libelous paper.

<p>Appeal — calendar.</p> <p>An order placing a cause on a particular calendar is not appealable, as no substantial right is affected.</p>

Appeal by the defendants, Charles Jackson and another, as trustees, 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 27th day of March, 1908, denying the defendants’ motion to vacate a prior order for their examination before trial to enable the plaintiff to frame her complaint.

<p> Negligence—bailment—loss of grain stored in elevator—charge as to liability of owner of elevator and its lessee, who was the bailee. </p>

<p>Eminent domain — city of New York — discretion of court in granting motion to include other property confirmed.</p>

Appeal by defendant Beloe from so much of an order of the Supreme Court, made at Kings County Special Term and entered in the Kings county clerk’s office on the 1st day of November, 1907, as directs the payment by the substituted trustee of the sum of §1,000 to the plaintiff’s attorneys as a condition of the withdrawal of the plaintiff’s appeal from the judgment herein.

<p>Appeal from a judgment of the Supreme Court in favor of the plaintiff, dated the 3d day of June, 1907, and entered in the Sullivan county clerk’s office; also from an order entered in said clerk’s office on the 15th day of July, 1907, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Negligence — Labor Law — injury from, fall of scaffold — charge as to effect of proof of violation of Labor Law — use for purpose other than that intended.</p>

<p>Appeal from part of an order, entered on the 80th day of January, 1908, denying in part a motion for bill of particulars. .</p>

<p>Appeal from part of an order imposing conditions on opening a default.</p>

<p>Appeal from an order entered on the 18th day of October, 1907, denying a motion for the modification of an order for the examination of plaintiff before trial.</p>

<p>Appeal from an order entered on the 13th day of February, 1908, denying a motion for a change of venue.</p>

<p>Appeal by the applicant, The City of Hew York, from an order of the Special Term, entered in the office of the clerk of the county of Westchester on the 20th day of Hovember, 1907, taxing commissioners’ fees and expenses.</p>

<p>Bills and notes — action on promissory note—evidence of payment—sham pleading —failure to separately state defenses—waiver of right to raise objection.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 22d day of May, 1907, in favor of the plaintiff, and also from an order entered in the same office on the 7th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.