Volume 126 — New York Appellate Division Reports

Appeal by the plaintiff, Maynard N. Clement, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the lltli day of October, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Patrick Devine, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of January, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the blew York Trial Term.

. Appeal by the plaintiff, Edward J. Dunphy, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1905, denying the plaintiff’s motion to vacate and set aside a judgment theretofore entered herein or to modify it by striking therefrom the provision which charges him personally with the costs of the action.

Appeal by the plaintiff, Can dee & Smith, 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 30th day of July, 1907, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint.

<p>Appeal by the defendant, the Plymouth Rubber Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of' the county of Hew York on the 10th day of April, 1908, denying the defendant’s .motion to require the plaintiff to serve an amended complaint in which the causes of action shall be separately stated and numbered.</p>

Appeal by the plaintiff, Bertha II. Adams, from the interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of January, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the plaintiff’s demurrer to three separate defenses contained in the amended answer.

Appeal by the defendant, Frank E. Anderson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1907, directing the defendant to make and serve a bill of particulars of the defenses contained in his amended answer.

Appeal by the defendants, August Ruff and another, from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 11th day of December, 1907, denying their motion for an order to be entered at the foot of the judgment herein directing the plaintiff to permit the defendants, their agents or servants to enter upon her premises, Bo. 157 East Fifty-fifth street, borough of Manhattan, Bew York city, in…

Appeal by the defendant, Robert Johnson, 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 28th day of February, 1908, as denies in part the defendant’s motion for a bill of particulars. ,

Appeal by the plaintiff, The City of New York, 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 3d day of December, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, the New York City Bailway 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 27th day of November, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the 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 27th day of November, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

. Appeal by the defendants, James N. Brown 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 New York on the 19th day of November, 1907, upon the verdict of a jury for $3,407.67, and also from an order entered in said clerk’s office on the 18th day of November, 1907, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Alice Fischer Harcourt King, 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 New York on the 23d day of March, 1908, vacating a warrant of attachment.

Appeal by the plaintiff, Gretchen Bauch, 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 9th day of November, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the Board of Elections of the City of New York and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of October, 1907, directing the said board of elections to publish the call for the Democratic primary election to be held on the 24th day of September, 1907, as required by the Primary Election Law, and in accordance with the statement certified and…

Motion by the plaintiff, The People of the State of Hew York, to dismiss an appeal by the defendant from a judgment of the Court of Special Sessions of the city of Hew York, borough of Manhattan, adjudging the defendant guilty of a misdemeanor for having obtained lodging, food and accommodation at a hoarding house other than an emigrant lodging house, without paying therefor, with intent to defraud the proprietor thereof, and for having surreptitiously removed her baggage…

Appeal by the defendant, the American Woolen Company of Hew York, from a judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 14th day of June, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term, in so far as said judgment is in favor of the plaintiff, and also from an order entered in said clerk’s office on the 29th day of May, 1906,…

Appeal by the petitioner, William E. Montgomery, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 13th day of February, 1908, denying the petitioner’s application for a copy of certain evidence taken before the grand jury.

Appeal in each case by the defendants, David Levy and another, from an order of the Appellate Term of the Supreme Court in each case, entered in the office of the clerk of the county of New York on the oth day of March, 1908, one of which orders dismissed an appeal from a judgment of the City Court of the city of New York, entered in the office of the clerk of said court on the 26th day of November, 1907, and the other dismissed an appeal from an order of the said City…

Appeal by the relator, Norbert Blank, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1908, dismissing an alternative writ of mandamus issued herein after a trial before a jury of „the issues of fact raised by the return.

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 23d day of December, 1907, sustaining a demurrer to an indictment.

<p>Appeal by the defendants, James Lenox and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 15tli day of ¡November, 1907, upon the decision of the court rendered after a trial at the Erie Special Term adjudging the defendant James Lenox to be indebted to the plaintiff in the sum of $2,157, and directing judgment against him personally for that amount, with costs, and also adjudging the plaintiff to have an interest in the premises described in the complaint to that amount, which constitutes a lien upon the same. The judgment also directs that if such amount is not paid by the defendant James Lenox within thirty days after entry of judgment against him and service of a copy thereof upon him, the premises shall be sold according to the usual practice of the court and that out of the proceeds the amount adjudged to be due to the plaintiff and the costs awarded shall be first paid, with interest, and that any sums remaining shall be paid to the defendants Sarah A. Taylor and Frances E. Lenox, share and share alike, and that in case of deficiency the plaintiff shall have judgment against the defendant James Lenox for the amount thereof.</p> <p>The action was commenced on the 13th day of July, 1907, practically to obtain the relief awarded by the judgment.</p>

Appeal by Robert E. Jones, judgment debtor, from an order of the County Court of Oneida county, made at a Special Term of said court and entered in the office of the clerk of said county on the 21st day of January, 1908, adjudging the said judgment debtor to be guilty of contempt of court and directing “ that Robert E. Jones, judgment debtor herein, pay into this court the sum of twenty-five dollars or stand committed to the Oneida County jail ten (10) days on failure to pay…

Appeal by the defendants, William Bowen Haggerty 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 Livingston on the 1st day of August, 1907, upon the decision of the court, rendered after a trial at the Livingston Trial Term, a jury having been waived, awarding damages against the defendant Fitch M. Davis, as administrator, etc., of William Bowen, deceased, for withholding dowez-, with notice of…

<p>Appeal by the defendants, The Delaware, Lackawanna and Western Bailroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of December, 1907, upon the decision of the court rendered after a trial at the Erie Special Term, and also from an order entered in said clerk’s office on the 16th day of September, 1907, denying the defendants’ motion to vacate a temporary injunction theretofore granted herein.</p> <p>The action was commenced on the 4tli day of September, 1907, to procure an adjudication that a certain “ plate girder fixed bridge,” which the defendants are engaged in constructing across the Buffalo river, where the railroad-of the defendants crosses said river northeasterly of Abbott road in the city of Buffalo and which new bridge is to take the place of and be substituted for the bridge now crossing said river, which is used, owned and operated by the defendants, constitutes an unlawful structure and is a nuisance; that the defendants be directed to remove any and all parts of said new bridge already in place and be perpetually enjoined from building or constructing such new permanent fixed bridge across said river, and that a temporary injunction may issue restraining the defendants from erecting said bridge during the pendency of this action.. Such temporary injunction was granted. A motion was made by the defendants to vacate the same, which was denied, and an order entered to that effect. The action was thereafter tried upon the merits and final judgment was entered, which awarded to the plaintiff practically the relief demanded in the complaint. From the final judgment so entered this appeal is taken. The defendants also seek to bring up for review the order heretofore entered denying their motion to vacate the temporary injunction and ask that such temporary injunction be now vacated.</p>

<p>Court—justice of the peace—jurisdiction — amount in controversy — non-resident defendants.</p> <p>A justice of the peace has no authority to determine that the total amount of the accounts of the plaintiff and defendant exceeds the sum of §400 and that, therefore, he has no jurisdiction of the action under subdivision 4 of section 2863 of the Code of Civil Procedure, except upon satisfactory proof Of that fact,.</p> <p>A justice o£ the peace has jurisdiction of an action brought by a non-resident plaintiff against a defendant who is a non-resident of the county in which the town is situate, provided the defendant is within the town at the time of the commencement of the action.</p> <p>Williams and Robson, JJ., dissented.</p>

<p>Corporation — unauthorized acts of directors—ratification by stockholders — payment of another’s debt without consideration.</p> <p>The stockholders of a corporation may ratify and affirm the unauthorized acts of its directors and officers, and such ratification hinds the corporation unless the acts offend against the public, or the rights of creditors he impaired.</p> <p>A stockholder cannot disavow the act of.his corporation upon the ground that it was ultra viies after he has affirmed the same, or where the application of the doctrine will work injustice. '</p> <p>The directors of the plaintiff, a corporation, having a claim against an allied insolvent corporation in which they were also directors, officers and stockholders, adopted a resolution authorizing the plaintiff to borrow money on its notes and issue bonds as collateral security. The money was borrowed from the treasurer of the defendant, a corporation, but, instead of being used in the business of the borrower, was without consideration used to pay the obligations of the insolvent corporation. Thereafter one T. having made an examination of the books of the plaintiff, purchased the entire stock of the company, and in determining the purchase price deducted the obligations of the plaintiff on its loan from the amount of its assets. Thereafter T. as treasurer of the plaintiff filed a claim against the insolvent allied company which included the amount of the loan. In an action by the plaintiff corporation to compel the defendants to surrender the notes representing the loan and return the security.</p> <p>Held, that the original stockholders of the plaintiff on selling their stock to T. and permitting the debt to be treated as an obligation of the company, confirmed the same;</p> <p>That T., their transferee, was bound by such confirmation, and that the complaint should be dismissed upon the merits.</p>

<p>Appeal by tlie defendant, Frank M. Cornell, from a judgment of the Supreme Court, rendered on the 27th day of April, 1906, after a trial at the Oswego Trial Term, convicting the defendant of the crime of libel. ■</p>

Appeal by Caroline J. Smith and others from that part of a judgment of the County Court of Livingston county, entered in the office of the clerk of the county of Livingston on the 30th day of September, 1907, directing that the committee of Charles E. J. McMillan, an incompetent person, now deceased, is entitled to a decree declaring her account settled ; also directing distribution of the assets in the custody of said committee to the personal representatives of James…

<p>Appeal by the defendant, the Cayuga Lake Cement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the «county of Tompkins on the 8th day of January, 1907, upon the verdict of a jury and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The appeal in this case was taken to the Appellate Division, third department, and the four justices qualified to hear the appeal were equally divided, and thereupon that court directed the appeal to be sent to this department for hearing and determination pursuant to section 231 of the Code of Civil Procedure.</p>

Appeal by the defendant, The General Accident Insurance Company of Philadelphia, 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 5th day of December, 1907, upon the decision of the court, rendered after a trial at the Erie Special Term, affirming a judgment of the Municipal Court of the city of Buffalo, rendered on the 28th day of August, 1907, upon the verdict of a jury, with notice of an…

<p>Appeal by the plaintiff, the Town of Greece, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of said county on the 28th day of March, 1907, pursuant to an order of said County Court entered on the 28th day of March, 1907, reversing a judgment in favor of the plaintiff theretofore rendered by a justice of the peace of the town of Greece in said county, and also from the said order upon which the judgment appealed from was entered.</p> <p>This action was commenced in Justice’s Court of the town of Greece, Monroe county, in the name of the town and at the instance of John Slater, its commissioner of highways, to recover of the defendant the penalty allowed by law on the non-payment of his poll tax. On the trial had in Justice’s Court a judgment in favor of the plaintiff was rendered, and upon appeal therefrom to the County Court said judgment was reversed on the ground that the justice had no jurisdiction of the subject-matter.</p>

Appeal by the plaintiff, L. J. McDowell, from a judgment of the County Court of Cayuga county in favor of the defendant, entered in the office of the clerk of said county on the 25th day of January, 1907, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at a Trial Term of said County Court, and also from an order entered in said clerk’s office on the 25th day of January, 1907, denying the plaintiff’s motion for a new…

<p>Corporation — dividends on preferred stock.</p> <p>Where a corporation having outstanding preferred stock bearing interest at six per cent “payable semi-annually, cumulative,” issues on October 1,1906, new preferred stock with a similar provision as to interest, a dividend made January 11, 1907, properly makes the rate at three per cent on the former issue and but one and one-half per cent on the new issue.</p> <p>A corporation and its stockholders may agree as they please as to the rights and privileges of preferred stockholders.</p>

Appeal by the defendants, Alfred M. Burdielc and another, as administrators, etc., and others from a judgment of the County Court of Jefferson county in favor of the plaintiff, entered in the office of the clerk of said county on the 25th day of June, 1907, upon the verdict of'a jury and also from two orders respectively denying the defendants’ motions for a nonsuit and for a new trial made upon the minutes.

Appeal by the defendant, the International Railway Company, from a judgment of the Municipal Court of the city of Buffalo in favor of the plaintiff, entered in the office of the clerk of said court on the 9th day of December, 1907, upon facts stipulated by the parties.

Appeal by the defendant, Mew York and Pennsylvania Telephone and Telegraph Company, from a judgment of the County Court of Steuben county, in favor of the plaintiff entered in the office of the clerk of said county on the 24th day of October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the proponent, Charles Young, from parts of a decree of the Surrogate’s Court of the county of Herkimer, entered in said Surrogate’s Court on the 17tli day of July, 1905, denying probate to a paper in writing purporting to be the last will and testament of James Eckler, deceased, in which said proponent is named as executor, with notice of an intention to bring up for review an intermediate order entered in said SuiTogate’s Court on the 6th day of August, 1900.

Appeal by the defendant, The Delaware, Lackawanna and Western 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 9th day of May, 1907, upon the verdict of a jury for $5,750, and also from an order entered in said clerk’s office on the 16th day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Maynard E. Clement, as State Commissioner of Excise, etc., from a judgment of the Supreme Court in favor of the defendant The Empire State Surety Company, entered in the office of the clerk of the county of Eiagara on the 20th day of September, 1907, upon the verdict of a jury, rendered by direction of the court, dismissing the complaint upon the merits as* to the said defendant.

Appeal'by the defendant, the Hyde-McFarlin 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 26th day of October, 1907, upon the verdict of a jury for $1,500, 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>Appeal by the defendant, the Carter-Crume Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 27th day of June, 1906, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 10th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Contract—liquidation agreement—liability of assignee for rent.</p> <p>Under an agreement whereby a defendant bank was to liquidate the affairs of another bank with authority to take possession of all its property for the purpose of disposing of it and to determine when and how it should be disposed of, the interest acquired is more than that of a mere pledgee of the property.</p> <p>Where the insolvent bank held a lease the defendant in possession of the premises under such agreement is liable for accruing rent as assignee of the lease.</p> <p>The fact that the lessor first began an action against the insolvent bank does not, in the absence of a surrender, bar a subsequent claim against the receiver of its assignee.</p>

Appeal by the defendant, the South Shore Natural Gas and Fuel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Chautauqua on the 25th day of May, 1907, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 27th day of May, 1907, denying said defendant’s motion for a new-trial made upon the minutes, with notice of an intention to bring up for review an…

<p>Railroad — negligence — injury while coupling cars — acts of superintendence.</p> <p>Plaintiff and others were operating a train under the direction of a conductor. In uncoupling cars plaintiff gave signals which were repeated by the conductor, it being a well-known rule that when uncoupling cars signals for their movement are to be given only by the one uncoupling. As plaintiff was finishing, the conductor, of his own initiative and independently, gave a signal which resulted in plaintiff’s injury.</p> <p>Meld, that the act of the conductor was within his sphere of action as vice principal, and the railroad liable under the statute;</p> <p>That the conductor’s negligence was his failure to obey the rule to take signals for the movement of the cars at the time only from plaintiff, and assuming of his own initiative to exercise his general authority to direct the movement of the cars.</p> <p>McLennan, P. J., dissented.</p>

<p>Master and servant — injury in mine — failure to support roof — evidence — harmless error.</p> <p>A common laborer in a mine while transporting props in tram cars to be used by a “propsetter” to support the roof of the tunnel, is not engaged in making the mine safe, and his representative may recover for his death, caused by the fall of the roof, on the ground that the master failed to provide a reasonably safe place in which to work.</p> <p>• Where the top of the tunnel was composed of a stratum of ash-roclc which slacked on exposure to air, and was likely to fall when jarred by blasting, unless supported, a master is negligent in allowing a surface of fifty or sixty square feet to remain unsupported for more than a month.</p> <p>A common laborer employed in a mine who, following directions, transports props by tram cars to be used by the propsetter to support the ceiling without knowledge of danger from falling rock, is not guilty of contributory negligence, nor does he assume the risk, being entitled to assume that the roof will be supported in a reasonably proper manner.</p> <p>Where the negligence of a master in failing to support the roof of a mine is beyond question, and a verdict for the plaintiff is not excessive, it is immate rial that the plaintiff was allowed to introduce inadmissible evidence as to the condition of the mine some time prior to the accident.</p> <p>Keuse and Robson, JJ., dissented.</p>

<p>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 Westchester on the 7th day of March, 1907, upon the verdict of a jury for $27,500, 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..</p>

<p>Conspiracy — conversion — failure to connect attorney with conspiracy — when mortgagee not liable for conversion.</p> <p>Evidence in an action for a conspiracy to deprive the plaintiff of his property by converting it examined, and held, insufficient to connect a defendant attorney at law who had acted for both parties in drawing bills of sale with the conspiracy.</p> <p>Where the vendee of a business has secured the payment of the purchase price by a chattel mortgage and subsequently abandons the business and refuses to pay the rent of the premises, he cannot hold the mortgagee for conversion in taking possession of the property, as he had that right under the mortgage.</p>

Appeal by the defendants, Louis Magenheimer 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 17th 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, as amended by an order entered on the 28th day of January, 1907, denying said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of March, 1907, upon .the verdict of a jury for $1,500, and also from an order entered in said clerk’s office oil the 8th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Emil Reibstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of 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 plaintiff, Kate Schramme, as administratrix, etc., of Frederick Schramme, deceased, from a judgment of the Supreme Court in favor of the defendants Maximilian Lewinson and George A. Just, entered in the office of the clerk of the county of Queens on the 26th day of April, 1905, upon the verdictof a jury rendered by direction of the court after a verdict for $11,000 in favor of the plaintiff had been set aside, the court having reserved decision of a motion of…

Appeal by the defendant, the Long Island Realty Company, from a judgment of the Municipal Court of the city of Rew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 23d day of May, 1907, overruling defendant’s demurrer to the .complaint.

Appeal by the Title Guarantee and Trust Company, as committee of the estate of Chandler D. Starr, an incompetent person, and another, from certain portions of a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 17th day of April, 1907.

Appeal by the defendant, Theodore A. Bingham, as police commissioner, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of February, 1908, granting an application for a peremptory writ of mandamus.

Appeal by the defendant, Louis W. Haight, 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 25th day of May, 1907, denying the defendant’s motion to open his default.

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 18th day of February, 1907, upon the verdict of a jury for $16,500, 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, A. E. Ridgely, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 5th day of June, 1907, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial.

Appeal by the plaintiff, William J. Purdy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of October, 1907, upon the dismissal of.the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, the National Saw 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 10th day of October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

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

<p>Principal and agent — commissions on sale of lands.</p> <p>A broker who, pursuant to an agreement with a corporation, made through its president, has procured a purchaser for lands who is ready and able to purchase and is acceptable to the corporation, can recover the commissions earned, although the president, having ’authority to bind defendant, refused to sell because of a prior conveyance to another party.</p>

<p>Equity — vendor and purchaser — specific performance.</p> <p>Where a-vendee of lands suing for specific performance or the return of earnest money paid is neither actuated hy honest motives nor brings the action in good faith, but urges only trivial objections to the title, and the vendor is willing and able to obviate all tangible defects, equity will refuse relief.</p>

Appeal by the plaintiff, Charles Bausert, 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 18th day of June, 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, and also from an order entered in said clerk’s office on the 17th day of June, 1907, denying the plaintiff’s motion for a new trial made…

<p>Beal property—dower—election—insanity of widow — vendor and purchaser— conveyance subject to dower.</p> <p>A widow’s right of election between dower and a testamentary provision in lieu thereof is wholly personal, and where she is insane at the time of the testator’s death and continues so, her silence or failure to enter or to commence action for dower is not an election to accept the testamentary provision under section 181 of the Real Property Law.</p> <p>Even though a committee has been appointed and the widow is confined in an asylum, the State Commission in Lunacy has no authority to elect on her behalf.</p> <p>Hence, the grantee of the husband’s executors takes subject to the dower rights of the insane widow, and his title is not unincumbered.</p>

Beargument of an appeal by the defendants, Frank Carney and others, individually and as assessors, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of July, 1907, denying the defendants’ motion to change the place of trial of the action. (See 124 App. Div. 904.)

<p>Negligence—fire caused by automobile — repair of gasoline leak by aid of lighted lamp.</p> <p>Action to recover damages for negligently causing the burning of the plaintiff’s buildings. On the trial it appeared that there was a leak in the gasoline system of the defendant's automobile, in charge of its chauffeur, who started to repair the break at night aided by a lighted lamp which he detached from the machine. It further appeared that after the defendant’s witness K., who was conducting a hotel in plaintiff’s building, had entered the house he was alarmed by a cry of fire, and on descending discovered that the automobile had been drawn under one of the sheds connected with the buildings and was on fire. On the following morning the remains of an automobile lamp were found under the car at a point whore the chauffeur had been attempting to fix the leak. On all the evidence,</p> <p>Held, that it was for the jury to say whether the defendant’s chauffeur was negligent in attempting to repair the leak under the plaintiff’s shed with the aid of a lighted lamp.</p> <p>Jenks, J., dissented.</p>

Appeal by the defendants, Martha Douglas and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25tli day of November, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to a separate defense contained in the answer of the said defendants.

<p>Appeal by the defendant, the Staten Island Midland Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, rendered on the 20th day of September, 1907.</p>

Appeal by the plaintiff, Morris Grossman, from a judgment of the Municipal Court of the city of New York in favor of the defendant dismissing the complaint.

<p>Municipal corporations — dismissal of police officer — evidence.</p> <p>Evidence taken in proceedings resulting in a dismissal of a police officer in the city of New York examined, and held, insufficient to justify his discharge.</p>

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 7th day of June, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 5th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Ernst Smith, 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 December, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 20th day of December, 1906, setting aside the verdict of a jury in favor of the plaintiff and against the…

Appeal by the defendant, Judah Jacobson,,from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 20th day of March, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term, certain issues of fact having been submitted to a jury.

Appeal by the plaintiffs, John G. Deubert and another, from an order of the Supreme Court, made at the Queens County Special Term, held in the county of Kings, and entered in the office of the clerk oE the county of Queens on the 24th day of October, 1907, granting the defendant’s motion that the complaint be made more definite and certain.

Appeal by the defendant, the city of Hew Fork, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff.

<p>Negligence — injury on sidewalk under repair.</p> <p>A contractor restoring the surface of a street after the completion of a tunnel is engaged in a lawful work and not liable for injuries to a pedestrian who in the day time fell into a depression left by the temporary removal of a flagstone for the purpose of relaying it.</p> <p>The condition of the street being obvious it was the duty of the pedestrian to take care.</p>

<p>Appeal by the defendant, Pauline Gallin, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 14th day of January, 1908, denying-the defendant’s motion to settle the issues and for trial by a jury.</p> <p>The action is to foreclose a mortgage on real estate made by the defendant.</p>

<p>Appeal by the defendant, Frederick Idler, from, a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff rendered on the 31st day of January, 1907.</p>

<p>Will—real property—life estate with contingent remainders — title from life tenant —judgment — unborn remainderman not bound.</p> <p>Where certain realty is devised to one grandchild for life, remainder to her issue, or, on her death without issue, a life estate to another grandchild, remainder to her "issue, and if both grandchildren died without issue then remainder to a third party, the two grandchildren united cannot give a marketable title even though the third party has died.</p> <p>That the grandchildren have been held to take as heirs at law in- an action to construe the will, the will not having been declared void, does not estop their unborn issue who were not parties to the action, from claiming title.</p>

Appeal by the defendant, Charles Browning, from a judgment of the Municipal Court of the city of New York in'favor of the plaintiff, rendered on the 2d day of December, 1907.

Appeal by the defendant, the Edison Electric Illuminating Conn pany of Brooklyn, from a judgment of the Municipal Court of the city of blew York in favor of the plaintiff.

Appeal by the defendants, Jacob Grant 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 29th day of August, 1907.

Appeal by the defendant, The American Manufacturing Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, rendered after a trial without a jury.

Appeal by the defendant, The Morris Building Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the 18th day of December, 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, which averred that two causes of action, one founded upon fraud, the other upon contract, not arising out of…

Beargtoment of an appeal by the defendant, Joseph J. Cahill, from a judgment of the County Court of Kings county, rendered on the 8th day of December, 1905, convicting him of the crime of perjury.

Appeal by the defendants, Gaetano Chiangone and another, from a judgment of the County Court of Westchester county in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of said county on the 12th day of January, 1907, confirming the report of a referee, and also from an order entered in said clerk’s office on the 5th day of July, 1906, denying the said defendants’ motion to set aside said report.

Appeal by the plaintiff, James P. Graham, from a judgment of the Municipal Court of the city of Rew Y ork, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of March, 1907.

Appeal by the defendant, Mary B. Cusick, individually and as executrix, etc., from a judgment of th.3 Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of April, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Isaac Moritz, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 9tli day of October, 1907.

Certiorari issued out of the Supreme Court and dated the 6tli day of January, 1908, directed to The Board of Education of Union Free School District Uo. 1 of the Town of Haverstraw, etc., and to Alonzo Wheeler and others, as trustees of said union free school district, etc., directing them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in relation to the rejecting of certain claims for a refund of a part…

Appeal by the plaintiff, Ike Sprintz, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 15th day of October, 1907, dismissing the complaint.

Appeal by the plaintiffs, Max Walar and others, copartners, etc., 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 19th day of June, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1907, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary Aldrich, 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 28th day of March, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term.

Appeal by the defendants, William H. Townsend, Jr., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Westchester on the 15th day of January, 1906, upon the verdict of a jury, also from an order entered in said clerk’s office on the 27th day of December, 1905, denying the defendants’ motion for a new trial made upon the minutes, and also from an order entered on the 29th day of December, 1905,…

<p>Cross-appeals by the plaintiffs, Sarah II. Barnes and others, and by the defendant, the Midland ¡Railroad Terminal Company, from parts of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 26tli day of June, 1906, upon the report of a referee.</p> <p>This action is brought to perpetually enjoin the defendant, first, from maintaining certain of its buildings and structures in a public highway called the Sea Side boulevard, and from erecting structures therein in any manner interfering with the passage of the plaintiffs and the public generally along said highway; second, from maintaining its pier in such manner as to interfere with or obstruct the convenience of persons in passing over the land thereunder lying between high and low-water mark; third, from using any sand pump, and from pumping sand in any way in violation of the statutes or the plaintiffs’ rights ; fourth, from pumping or dumping sand upon a highway known as Red lane ; fifth, from causing water to flow upon the beach abutting its land between high and low-water mark; sixth, from doing anything which shall prevent, obstruct or interfere with the convenience of persons desiring to use the land between high and low-water mark as a means of passage to and from plaintiffs’ premises; seventh, from casting or permitting to flow sewage upon plaintiffs’ premises, and eighth, for an accounting to ascertain plaintiffs’ damages sustained through defendant’s wrongful and unlawful acts.</p> <p>The facts found by the learned referee are abundantly sustained by the evidence. Upon them he found as conclusions of law:</p> <p>“First. That the acts of the defendant in building and maintaining its pier, and in the construction of a shed on the platform adjoining the bulkhead at Red Lane and in building the trestles to its sand-bin at the foot of Red Lane and in its operation of the same ■—■ although by such acts the public were and are prevented from having free passage to Woodland Beach over the platform and over the beach between high and low water mark; and although its pier is built and maintained in violation of the conditions in the grant to it from the State of the lands under water — are not such as entitle the plaintiffs or either of them to relief. There being no right in the public to pass over the beach between high or low water mark and the State alone having the right to enforce the conditions on which the grant was made.</p> <p>“ Second. That the plaintiffs are entitled to judgment granting the following relief:</p> <p>“I. Perpetually enjoining and restraining the defendant</p> <p>“ (1) From maintaining any building, sluice-way or structures of any bind within the limits of said Boulevard, unless it provides an equivalent, by constructing a road seventy feet wide, in good condition for public travel, between the terminal station of the trolley railroad and Red Lane at the point where the latter crosses the Boulevard, and dedicating the same to public use.</p> <p>“ (2) From causing or permitting any sewage to flow into the ditch forming the southeasterly boundary of plaintiffs’ salt meadow land.</p> <p>“ Third. That the jflaintiffs, or either of them recover such damages as they, or either of them, may be found upon an accounting thereof to have sustained by reason of the acts of the defendant against which relief is hereby granted, and that it be referred to a referee to ascertain and report to the Court the amount of any damage so sustained by the plaintiffs, or either of them.”</p>

Appeal by George B. Conklin, as executor, etc., from certain parts of a decree of the Surrogate’s Court of the county of Kings, entered in the said Surrogate’s Court on the 30tli day of ¡November, 1907.

Appeal by the defendant, Peter Groth, from an order of the Supreme Court, made at the ■ Kings County Special Term and entered in the office of the cleric of the county of Kings on the 30th day of August, 1907, denying the defendant’s motion that the respondent, as a person beneficially interested in the recovery in this action, be directed to pay costs to the defendant’s attorneys.

Appeal by the plaintiff, John J. Tierney, 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 22d day of November, 1907.

Appeal by the defendant, Annie O. B. Foster, as administratrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 25th day of June, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of June, 1907, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John L. Dodge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 11th day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Long Island Railroad 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 Suffolk on the 29th day of November, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, overruling the defendant’s demurrer to the complaint in an action brought to recover penalties in consequence of defendant’s alleged violation of various…

<p>Trial — summing up — statements not justified by evidence.</p> <p>Statements made by plaintiff’s counsel in summing up in a close case, which are wholly immaterial, not justified by the evidence, but designed only to prejudice the jury, call for a reversal.</p>

Appeal by tlie plaintiff, Auito Vincenzo, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 24th day of October, 1907, upon the dismissal of the complaint by direction of the court-after a trial at the Clinton Trial Term.

Oertiorari issued out of the Supreme Court and attested on the 27th day of April, 1907, directed to George W. Aldridge and others, commissioners, etc., commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in relation to the granting of an application of the West Shore Traction Company for a certificate of public convenience and necessity under section 59 of the Railroad Law (Laws of 1890, chap. 565,…

<p>■ Arrest — power of police constable of Mechanicville — intoxication —• town — rejection of claims—estoppel on appeal.</p> <p>A constable of a town in a county, being a peace officer of the county, may arrest without warrant persons found intoxicated upon the highways of any town of the county, and the police constable of the village of Mechanicville under its revised .charter (Laws of 1891, chap. 106), having the powers of a town constable, can likewise make such arrest without warrant outside the village.</p> <p>A board of town auditors having rejected claims on a specific ground is restricted to that ground on appeal and cannot assert that there were other grounds for rejection.</p>

Cebtioeabi issued out of the Supreme Court and attested on the 11th day of April, 1907, directed to the Board of Eailroad Commissioners of the State of Hew York and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in relation to the granting to the Schenectady and Margaretville Eailroad Company a certificate of public convenience and necessity under section 59 of the Eailroad Law (Laws of…

<p>Pleading — negligence — commissioner of highways.</p> <p>In an action against a town to recover damages for injuries caused by the negligence of a commissioner of highways in failing to repair a road, it is not necessary to allege that the commissioner had funds, as the lack of funds is a matter of defense.</p> <p>An allegation of negligence on the part of the commissioner implies that he was in a position to act and ought to have acted, and yet failed to do so.</p>

Appeal by the defendant, The City of Bensselaer, 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 25th day'of May, 1906, upon the verdict of a jury for $550, and also from an order entered in said clerk’s office on the 25th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Lawrence Alher, an infant, by Conrad Alber, his guardian ad litem, from an order made by a justice of the Supreme Court, and entered in the office of the clerk of the county of Rensselaer on the 12th day of December, 1907, granting the defendant’s motion to vacate an order of arrest theretofore granted herein.

<p>Parent and child—habeas corpus —mother’s right to custody—husband and wife — right to dispose of custody of child.</p> <p>By virtue of section 51 of the Domestic Relations Law a married woman is joint guardian of her children with her husband with equal powers, rights and duties, and the husband cannot lawfully give the custody of his children to third persons without her consent.</p> <p>The Supreme Court in its equitable power may in a proper case, having regard ior the welfare of an infant, take its custody from one legally entitled thereto and give it to another.</p> <p>Where, on habeas corpus by a mother to recover the custody of a child which the father before his death had given to his relatives, it appears that the relator’s character is good, that she lives with her relatives in fairly good circumstances, possesses property in her own right, is self-supporting and has taken good care of her other children, etc., her maternal rights are paramount.</p> <p>The fact that the persons with whom the child was placed by the father are in better financial circumstances than the mother, and the fact that they hold the child in affectionate regard, standing alone, are insufficient to overcome the mother’s natural right to his custody.</p>

<p>Appeal by the plaintiff, Gilbert Ward, 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 25th day of October, 1907, denying the plaintiff’s motion for leave to amend the complaint, and also from an order entered in said clerk’s office on the 29th day of February, 1908, denying the plaintiff’s motion for judgment upon the report of a referee appointed in an action for the foreclosure of a mortgage.</p>

<p>Appeal by the plaintiff, Harley S. Bateman, from an order of the Supreme Court, made at the Clinton Trial Term and entered in the office of the cleric of the county of Clinton on the 24th day of Hay, 1907, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial.</p>

<p>Appeal by the plaintiff, George B. Lewis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 24th day of July, 1906, upon the report of a referee dismissing the complaint upon the merits.</p>

<p>Appeal by the defendant, James T. Mosher, tenant, from a judgment of the County Court of Albany county in favor of the respondent landlord, entered in the office of the clerk of said county on the 20th day of December, 1907, upon an order of said County Court entered on the 20tli day of December, 1907, affirming a final order of the City Court of the city of Albany dispossessing the defendant of certain premises, and also from said order upon which the judgment appealed from was entered.</p>

<p>Judgment against State — interest — effect of failure to enforce judgment.</p> <p>While the ordinary debtor must seek out and pay his creditor, the rule does not apply to the State, and a judgment creditor must apply to the proper State official and present his claim and vouchers in the required form before he becomes entitled to payment.</p> <p>A plaintiff in the Court of Claims who, having recovered against the State for an appropriation of her lands, has failed to file with the Comptroller the vouchers and other papers required by section 269 of the Code of Civil Procedure is only entitled to interest for twenty days after her recovery, where the Comptroller has funds upon which he could have drawn a warrant for the payment of the judgment. She is not entitled to interest for the period covered by an unsuccessful appeal from the judgment in her favor.</p> <p>Although section 269 of the Code of Civil Procedure requires as a prerequisite to payment of a judgment against the State that a certificate of the Attorney-General be filed stating that no appeal will be taken, a plaintiff who has failed to notify the Attorney-General of her judgment so as to limit his time to appeal gains no right to a longer period of interest because such certificate was not filed.</p> <p>Nor can she complain because the Attorney-General failed to furnish the Comptroller with the searches and certificates required by said section, where she has not served a copy of her judgment upon either of said officers, for until such service they owed to her no active duty.</p> <p>Chester, J., dissented.</p>

Appeal by James Bradley from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Warren on the 24th day of February, 1908, denying the appellant’s .motion to vacate an order made by a justice of the Supreme Court on the 12th day of February, 1908, and entered in. said clerk’s office on the 15th day of February, 1908, revoking a liquor tax certificate, and also to vacate the petition and order to show cause…

Appeal by the defendants, Wilmer H. Fitch and others, comprising the board of supervisors of Clinton county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Clinton on the 4th day of January, 1907, upon the decision of the court rendered after a trial before the court without a jury at the Clinton Trial Term.

Appeal by the defendant, Helen E. Foulds, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 9th day of January, 1908, upon the decision 6f the court, rendered after a trial at the Saratoga Special Term, sustaining the plaintiff’s demurrer to certain defenses in the amended answer of the said defendant.

<p>Appeal by the defendant, The City of Elmira, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Chemung on the 8'th day of May, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Clark Witbeck, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 21st day of February, 1907, upon the decision of the court rendered after a trial at the Schenectady Special Term.

<p>Grift — savings bank deposit in trust for another — evidence — burden on trustee claiming gift — privileged communications between attorney and client — waiver.</p> <p>A son who receives money drawn by his mother from her savings bank account and deposits it in another bank to the credit of himself in trust for his mother occupies a fiduciary relation and, when asserting title under an alleged gift inter vims from his mother, is under the burden of showing that the gift was fair and fully comprehended by the donor and was her free and voluntary act without restraint or coercion.</p> <p>In an action by the representative of the mother to recover the deposit from the alleged donee, the testimony of the donor’s attorney at law who drew and witnessed the instrument of gift as to occurrences at the time of execution and to prior communications made by the deceased relative to the subject-matter of the instrument, not made in the presence of a third party, is inadmissible over the plaintiff’s objection.</p> <p>The deceased by requesting the attorney to witness the instrument did not waive the privilege of her communications. A waiver thereof to be effectual must be made upon trial, except in the case of an attorney who is a subscribing witness to a will.</p>

Appeal by the plaintiff, George W. Kennedy, from so much of an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Saratoga on the 4th day of January, 1908, as affirms the rulings of the county clerk overruling certain of the plaintiff’s objections madé on the retaxation of costs. After the cause was at issue the plaintiff died. The present plaintiff was substituted by an order entered May 7, 1907.

<p>Appeal by the plaintiff, Joseph Marone, from a judgment of the Supreme Court in favor of the defendant brewery company, entered in the office of the clerk of the county of Albany on the 31st day of J anuary, 1901, upon the dismissal of the complaint by direction of the court at the' close of the plaintiff’s case upon a trial at the Albany Trial Term.</p>

Appeal by the plaintiff, George F. Troutwine, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, entered in the office of the clerk of the county of Fulton on the 8th day of January, 1907, upon the decision of the court rendered after a trial at the Fulton Trial Term, a jury having been waived.

Appeal by the plaintiff, Charles B. Andrus, from so much of an interlocutory judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Sara-toga on the 14th day of November, 1907, upon the decision of the court, rendered after a trial at the Saratoga Special Term, as overrules the plaintiff’s demurrer to the third and fifth answers and defenses set up in the amended answer to the first cause of action set up in the…

Appeal by the plaintiffs, John W. Shook and another, from a judgment of the Supreme Court in favor of the defendant Catherine Fox, entered in the office of the clerk of the county of Rensselaer on the 26tli day of October, 1907, upon the decision of the court, rendered after a trial at the Rensselaer Trial Term, a jury having been waived, dismissing the complaint.

Appeal by the plaintiff, Roderick Morison, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 26th day of August, 1907, upon the verdict of a jury dismissing the complaint upon the merits.

<p>Wills—action to determine validity — parties—sufficiency of complaint.</p> <p>A complaint in an action under section 2658a of the Code of Civil Procedure to determine the validity of the probate of a will, which fails to allege that the parties, other than the husband, are the only next of kin and heirs at law of the deceased, and that deceased died possessed of real or personal property, does not state facts sufficient to constitute a cause of action.</p> <p>A husband and sister of a testatrix have a common interest in an action to invalidate her will, and may join as parties plaintiff.</p> <p>On sustaining a demurrer to their complaint it should not be dismissed on the merits, but leave should be given to amend.</p>

Appeal by the defendant, the Trojan Laundry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 4th day of January, 1908, upon the decision of the court rendered after a trial at the Albany Trial Term, a jury having been waived.

Appeal by the plaintiff, Eugene B. Curtis, from a judgment of the Supreme Court in favor of the defendants, Harry Curtis and others, entered in the office of the clerk of the county of Saratoga on the 5th day of October, 1907, upon the decision of the court, rendered after a trial at the Saratoga Special Term, sustaining the said defendants’ demurrers to the amended complaint.

<p>Insurance—false statements in application—policy void.</p> <p>Where one who has within two years suffered from an abscess in the middle ear with mastoiditis and received treatment therefor, makes out an application for health insurance wherein he states that he has not had medical treatment during the past five years except for stomach trouble, and it is provided that if any statement in the application be untrue the policy shall be void, he cannot recover for a disability caused by an abscess in the ear, even though he told the agent that he suffered from deafness, since that is not the same as inflammation of the inner ear.</p>

<p>Equity — specific performance — severance of action — evidence — costs — disbursements.</p> <p>Where the plaintiff agreed to saw certain timber cut by defendant from certain land at a fixed price and guaranteed that the lumber obtained from the land would aggregate a certain amount, and defendant in turn agreed that whenever the guaranteed amount of lumber was sawed or the deficiency, if any, made up he would convey certain land to plaintiff, and it appears that the timber cut was mingled by plaintiff with other timber at the saw mill, an estimate by defendant based on the amount cut by the choppers and the application of a customary rule of measurement is admissible as evidence.</p> <p>In a suit in equity for the specific performance of such contract, where the timber cut was less than the guaranteed amount, a decree for conveyance of the land will be made only on condition that the deficiency be made up, and the deficiency as found becomes res adjudicate, between the parties.</p> <p>An order granted at defendant’s instance, requiring a litigation to be severed and prosecuted as two separate actions, inures to the plaintiff’s benefit.</p> <p>Where a referee has found the facts and erred only in legal deductions, the Appellate Division may direct a proper judgment without granting a new trial.</p>

<p>Contracts— condition precedent—appeal — direction of judgment without new trial.</p> <p>Under a contract whereby plaintiff agreed to saw certain timber cut by defendant from certain land at a fixed price and guaranteed that the lumber obtained from the land would aggregate a certain amount, and defendant in turn agreed that whenever the guaranteed amount of lumber was sawed or the deficiency, if any, made up he would convey certain land to plaintiff, defendant cannot recover a deficiency found to exist unless he has alleged and proved a tender of a deed of the land, that being a condition precedent to recovery.</p> <p>Where a referee has found the facts and has erred merely in the legal deductions the Appellate Division may direct a proper judgment without granting a new trial.</p>

Appeal by the plaintiff, Nellie M. Freeman, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 27th day of December, 1907, denying the plaintiff’s application for an interlocutory judgment in an action for divorce and setting aside all proceedings in the action since the issuance of the summons.

Reargument of an appeal by George W. Gamble, individually and as administrator, etc., of Elizabeth Gamble, deceased, and others, from a decree of the Surrogate’s Court of the county of Sullivan, entered in said Surrogate’s Court on the 12th day of November, 1906, judicially settling the accounts of the personal representatives of the deceased executors of the last will and testament of Elizabeth Gamble, deceased. (See 121 App. Div. 381; 122 id. 904.)

Appeal by the defendant, The State Board of Tax Commissioners, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Albany ■ on the 11th day of September, 1907, upon the decision of the court, rendered after a trial at the Albany Special Term, canceling the defendant’s assessment of a special franchise tax against the relator for the year 1905.

<p>Public officers — right of Attorney-General to sue not exclusive — State lands—judgment impairing State’s title entered on stipulation of Forest Commission — right óf Attorney-General to move to vacate judgment.</p> <p>The Attorney-General is not the sole person authorized to represent the State as attorney in bringing actions in the name of the People, for various State boards are permitted by statute to bring such actions through special counsel.</p> <p>Under the statutes in force on May 31,1904, the Forest, Fish and Game Commission had authority to sue in the name of the People for damages for trespass upon lands in the forest preserve, and the Attorney-General has no right to be substituted as attorney in place of special counsel acting for said Commission.</p> <p>But the Attorney-General, being the chief law officer of the State, may move the court to vacate a judgment iu such action entered against the State upon a stipulation by the Forest, Fish and Game Commission upon' the ground that said Commission, knowing the State to be owner of the lands in question, stipulated that judgment might be taken against it dismissing the complaint and adjudging that the State was not the owner.</p>

<p>Appeal by the defendant, Martin P. Byrnes, from so much of a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of September, 1907, pursuant to an interlocutory judgment entered in said clerk’s office on the 23d day of May, 1907, upon the report of a referee, divorcing the parties to this action, as awards the sum of eight dollars per week alimony to the plaintiff.</p>

Appeal by the plaintiff, Eva K. Conlon, 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 April, 1908, denying the plaintiff’s motion to resettle an order entered in said clerk’s office on the 3d day of March, 1908, by striking from the recitals in said order reference to two affidavits and two judgment rolls as being papers upon which the motion was decided.

Appeal by the plaintiffs, Ernst Eichard Fuhrmann and another, from a judgment of the Supreme Court in favor of the defendant August Heckseher, entered in the office of the clerk of the county of Hew York on the 3d day of March, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the said defendant’s demurrer to the amended complaint, and dismissing the said complaint as to him.

Appeal by the defendant, Margaret E. Hughes, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 12th day of December, 1907, affirming a judgment of the City Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said court on the 13th day of February, 1907, and also affirming an order of said City Court denying the defendant’s motion for a new trial.

<p>Appeal by the plaintiff, Joseph Strauss, 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 6th day of January, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the plaintiff’s demurrer to the second, third and fourth separate defenses contained in the amended answer.</p>

<p>Appeal by the defendant, James McCreery & 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 Mew York on the 27th day of March, 1908, upon the decision of the court, rendered after a trial at the Mew York Special Term, sustaining the plaintiff’s demurrer to the second separate defense contained in the second amended answer.</p>

Appeal by the defendants, John Wanamaker and others, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 27th day of March, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the first and second separate defenses in the defendants’ amended answer.

Appeal by the plaintiff, the Fifth Avenue Coach Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 27th day of January, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Elias L. M. Bristol, from a final judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of New York on the 5th day of February, 1908, confirming a sale made by a referee in an action for partition.

Appeal by the defendant, Walter R. Gillette, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 28th day of October, 1907, after a trial at the Mew York Trial Term, criminal branch, convicting the defendant of the crime of perjury.

<p>Appeal by the plaintiff, Louis F. Haffen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York,on the 28th day of April, 1908, denying the plaintiff’s motion to strike out certain parts of the answer as irrelevant and redundant.</p>

Appeal by the plaintiff, Austin C. Trowbridge, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 3d day of October, 1907, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 1st day of October, 1907, granting an additional allowance to the defendants.

Sep abate appeals by the defendants, Joseph H. Hoadley and Joseph Leiter, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 14tli day of May, 1907, upon the verdict of a jury, and also from respective orders entered in said clerk’s office on the 14th day of May, 1907, and on the 22d day of May, 1907, denying the said defendants’ respective motions for a new trial made upon the minutes.

<p>Will — trust — failure of remainderman — distribution of principal.</p> <p>Where a testator leaves property in trust during the lives of his widow and a daughter and the only provision in the will relating to the disposition of the principal gives the same to the children of the daughter should she have any, and the daughter dies childless the principal at the termination of the trust should he distributed as intestate property.</p> <p>Where it is personal property, one-third goes to the administratrix of testator’s widow and two-thirds to the administratrix of his daughter, his only child, to the exclusion of a grandnephew.</p>

<p>Appeal by the relator, John H. Ludwig, 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 25 th day of February, 1908, denying the relator’s application for a peremptory writ of mandamus commanding and requiring the respondent Ludwig & Company, a domestic corporation, to forthwith exhibit to the relator or to his attorney and accountants “ all books of account, records and papers of said corporation of Ludwig and Company from the commencement of the year 1905 to the time of Such exhibition, and to permit them to fully examine the same and to take extracts therefrom.”</p>

Appeal by the plaintiff, Samuel Wiener, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 4th day of March, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the plaintiff’s demurrer to five separate defenses contained in the amended answer of the defendants Boehm and -Heine to the first cause of action set forth in the…

Appeal by the plaintiff, Samuel Wiener, from an interlocutory judgment of the Supreme Court in favor of the defendants Mayer, entered in the office of the clerk of the county of Hew York on the 26th 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 certain separate defenses contained in the amended answer of the defendants Mayer.

<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 defendant, Isaac Heineman,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Mew York on the 31st day of October, 1907, upon the verdict of a jury rendered by direction of the court, and also (as stated in the notice of appeal) from an order entered in said clerk’s office in Movember, 1907, denying the defendant’s motion for a new trial.

Appeal by the defendant, the David Stevenson Brewing 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 6th day of November, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Joseph Russo, from a judgment of the Court of General Sessions of the Peace in and for the county of Rew York, rendered on the 25th day of June, 1907, convicting the defendant of the crime of robbery in the first degree, and also from an order denying the said defendant’s motion for a new trial.

Appeal by the defendants, Frank Raymond and others, as commissioners, 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 8tli day of February, 1907.

Appeal by the plaintiffs, Leon Tanenbaum and another, copartners, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 24th day of June, 1907, upon the verdict of a jury, rendered by direction of the court, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 25th day of June, 1907, denying the plaintiffs’ motion for a new trial made upon…

<p>Appeal by the petitioner, 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 20th day of March, 1907, denying the petitioner’s motion to confirm the report of the commissioners of estimate and assessment herein as to the assessment for benefit contained therein, and remitting the said report to the commissioners for revision and correction.</p>

<p>Appeal by the defendants, Rudolph T. McCabe and another, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 9th day of March, 1908.</p>

Appeal bv the defendant, Clair Foster, 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 April, 1908, denying the said defendant’s motion to strike one of the issues herein from the Special Term calendar.

Appeal by the defendant, the Cobre Grande Copper Company, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 12th day of March, 1908.

Appeal by the defendant, John L. Miller, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 6th day of June, 1907, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 7tli day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, August P. Wagener, as surviving administrator, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of December, 1907, upon t'lie decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint. °

Appeal by the defendant, the Zeltner Brewing 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 12th day of March, 1908, 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.

<p>Railroad—negligence—injury to passenger by collision—damages.</p> <p>Evidence in an action to recover for personal injuries alleged to have been received by a passenger in a subway train during a collision examined, and held, that a verdict in favor of defendant was improperly set aside, as the plaintiff had failed to show that an apoplectic stroke resulting in paralysis, . from which he was suffering, was caused by the accident, or that he received any other injury.</p>

<p>Negligence — liability of contractor to employees of sub-contractor — injury by fall from ladder — facts not showing negligence — appeal.</p> <p>Where the complaint is dismissed at the close of the plaintiff’s case, every fact and every inference must be viewed in the light most favorable to him.</p> <p>The employees of a sub-contractor engaged in installing plumbing in a building under construction do not enter as trespassers or mere licensees, but by reason of the contract enter hy invitation.</p> <p>Where the only means of access between the floors of a building under construction are ladders erected by the general contractor, he must be deemed to have invited the employees of a sub-contractor to make use thereof while installing plumbing.</p> <p>Although the contract of a sub-contractor did not require him to furnish ladders, the general contractor who erects ladders forming the only means of access between the floors of the building cannot escape liability for injuries suffered by an employee of the sub-contractor by reason of a defective ladder, on the theory that there was no privity between the general contractor and the plaintiff.</p> <p>Where, in an action to recover for injuries received by a plumber who fell from a ladder leading between floors of a building under construction, it appears that the ladders were strong with hickory rungs and that nothing broke or gave way, but that plaintiff’s fall was caused solely by the turning of a rung which had been loose for only two days, which condition had not been called to the attention of the defendant, there can be no recovery.</p>

Appeal by the defendant, Louis Pinkus, 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 9th day of March, 1908, granting the plaintiff’s motion for leave to issue an execution against the defendant’s property.

Appeal by the relator, Constant A. Andrews, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1908, denying the relator’s petition for the discharge of an alleged incompetent, and dismissing a writ of habeas corpus granted thereon.

<p>Bills and notes — payment of forged check — estoppel of drawee — application of proceeds to pay taxes of third party — subrogation.</p> <p>It is incumbent upon the drawee of a bill of exchange to be satisfied that the signature of the drawer is genuine, for he is presumed to know the handwriting of his correspondents, and if he accept or pay a bill on which the drawer’s name is forged, he is bound by his act and can neitlier repudiate the acceptance nor recover the money paid.</p> <p>Hence a bank which has paid a forged chock purporting to be drawn by one of its depositors to the order of the collector of assessments of the city, cannot recover the sum paid from third persons, although the amount of the check was credited by the municipal authorities in payment of taxes on lands owned by them and the bank has been compelled to restore the amount to the credit of the person whose name was forged.</p> <p>As the drawee could not recover the amount of the forged check from the city, it is not entitled to be subrogated to any right the city may have against the third person whose taxes were paid.</p> <p>Houghton and Laughlin, JJ., dissented, with opinion.</p>

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

Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the .clerk of the county of Rew York on the 22d day of April, 1908, denying the defendant’s motion for a bill of particulars.

Appeal by the defendant, Lemuel H. Costikyan, 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 defendant, the Iroquois Bealty Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of February, 1908, denying the defendant’s motion for a discovery of the books and accounts of the plaintiff.

Appeal by the defendant, The Conried Metropolitan Opera 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 4th day of December, 1907, upon the verdict of a jury for $2,705, and also from an order entered in said clerk’s office on the 26th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frederic B. Studwell, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York, nunc pro tuno, as of the 6th day of March, 1908 (as amended by an order entered in said clerk’s office on the 10th day of March, 1908), upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s ease upon a trial at the New York Trial Term.

Appeal by the defendants, Frederick J. Herrick and another, 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.

Appeal by the defendant, The Dunmore Realty Company, in the first above-entitled action and by the defendant, John L. Murray, in tlie second above-entitled action, each from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered respectively in the office of the clerk of the county of Mew York on the 28th and 24th days of February, 1908, in each case upon the decision of the court rendered after a trial at the Mew York Special Term.

Appeal by the defendant, Jacques Kahn, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 12th day of May, 1908, denying the defendant’s motion to resettle an order entered herein on the 4th day of May, 1908.

Appeal by the defendant, Reinhard Ralimeyer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of April, 1908, granting a motion to appoint defendant receiver of certain partnership property.

Appeal by the defendant, Charles Curie, 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, and also from an order bearing date the 14th day of November, 1907, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, 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 4th day of April, 1906, as amended mono pro tuno by an order entered in said clerk’s office on the 1st day of May, 1906, as amended and resettled by an order entered in said clerk’s office on the 20th day of Hovember, 1907, in the office of the clerk of the county of Hew York on the 22d…

Appeal by the defendant, George W. Hopkins, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 5th day of December, 1907, convicting the defendant of the crime of grand larceny in the second degree, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

<p>Eminent domain—condemnation of easements — damages — evidence.</p> <p>An order remitting to new commissioners the assessment of damages caused by the condemnation of easements of light and air taken on the construction of a stairway to an eleva! ed railroad is appealable.</p> <p>In estimating the damage caused by taking easements of light and air, the possible benefits to the realty may be considered.</p> <p>It is not error to reject evidence of what was paid to other owners, whose estates differ radically from that of defendant.</p>

Appeal by tbe defendants, tbe Chicago and Eastern Illinois Railroad Company and others, from a judgment of tbe Supreme Court in favor of tbe plaintiffs and tbe defendant Colonial Trust Company, entered in tbe office of tbe clerk of tbe county of New York on tbe 28tli day of June, 1906, upon tbe decision of tbe court, rendered after a trial at tbe New York Special Term, declaring a certain traffic agreement between tbe defendant railroad companies to be void and en joining…

<p>Appeal by the defendants, the St. Louis and San Francisco Railroad Company 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 Flew York on the 23d day of April, 1908, granting an injunction penclente lite restraining the defendant railroad companies from disposing in any manner of the bonds, stock, trust assets or other obligations of the Chicago and Eastern Illinois Railroad Company.</p>

<p>Appeal from an order denying a rehearing of a previous motion.</p>

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

<p>Default — costs imposed on opening default.</p>

<p>Injunction to restrain unfair competition — question for trial.</p>

<p> Attorney—disbarment proceedings—default in appearance by respondent. </p>

<p>Appeal from an order granting a motion for a new trial on the ground of newly-discovered evidence,</p>

<p>Appeal from an order denying plaintiff's motion for an injunction.</p>

<p>Appeal from an order granting a motion to vacate a warrant of attachment.</p>

<p>Appeal from an order opening the default of the respondent.</p>

<p>Appeal from an order denying a motion for a retaxation of costs.</p>

<p>Cross-appeals by plaintiff and defendant from a judgment entered upon the report of referee.</p>

<p>Pleading—permission to amend complaint — time to answer.</p>

<p>Trial — calendar —preference.</p>

<p>Appeal from an order vacating an order for the examination of plaintiff before trial.</p>

<p>Appeal from judgment entered after trial at Special Term.</p>

<p>Appeal from a judgment dismissing the complaint and from an order denying plaintiffs’ motion for a retaxation of costs.</p>

<p>Appeal from a determination of the Appellate Term.</p>

<p>Appeal from an order of reference.</p>

<p>Appeal from an interlocutory judgment entered after trial at Special Term.</p>

<p>Appeal from a judgment entered upon the report of a referee dismissing the complaint upon the merits.</p>

<p>Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.</p>

<p>Trade name — corporation — adoption of name similar to rival’s — fraud —- certificate of incorporation — conclusiveness of.</p>

<p>Negligence — collision with train at crossing in city—evidence of caution — effect cf ordinance as to speed of trains on care required.</p>

<p> Judgment—erroneous entry of judgment by clerk on dismissal of appeal from order —resettlement. </p>

<p>Principal and agent — real estate broker — evidence not showing right to commissions for sale of land.</p>

<p>Judgment affirmed, with costs, on the opinion of Mr. Justice Kelly at Special Term. Woodward, Jenks, Hooker, Gay nor and Miller, JJ., concurred. The following is the opinion delivered at Special Term :</p>

<p>Appeal from an order granting a motion for a bill of particulars.</p>

<p> Court—proceeding to remove magistrate—right of respondent to present oral testimony. </p>

<p>Appeal from an order denying a motion to reduce the amount of alimony.</p>

<p>Appeal from a judgment and order denying the defendant’s motion for a new trial.’</p>

<p>Appeal from a judgment dismissing the complaint at Trial Term.</p>

<p>Appeal from an order setting aside the verdict in favor of appellant and granting a new trial.</p>

<p>Appeal from a judgment entered in the Mew York county clerk’s office on the 5th day of July, 1907, and an order entered on the 3d day of June, 1907.</p>

<p>Appeal from a judgment entered on a verdict directed by the court, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order denying a motion for a bill of particulars.</p>

<p>Appeal from a judgment entered on a verdict and from an order denying motion for a new trial.</p>

<p>Appeal from an order restraining defendants Samuels and Goldenberg from interfering with plaintiff’s possession of premises-pending trial of action.</p>

<p>Appeal from an order awarding a preference.</p>

<p>Practice — calendar — negligence — no preference of action for personal injuries.</p>

<p>Appeal from an order denying a motion for a receiver of the rents and profits of certain premises.</p>

<p>Principal and surety — indemnity — bond given to referee to secure balance of payment on land purchased on foreclosure — liability of sureties — discharge of principal—facts net showing trust of personal property—evidence of conversations with deceased by interested witness.</p>

<p>Tax ■—assessment of lands — effect of stipulation.</p>

<p>Appeal from an order denying a motion made by defendant to vacate or modify an attachment.</p> <p>Order affirmed, with ten dollars costs and disbursements. No opinion. Present — Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ. Dissenting memorandum by McLaughlin, J.</p>