Volume 127 — New York Appellate Division Reports

Appeal by the defendant, the American Bridge 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 8th day of August, 1907, upon the verdict of a jury for $2,650, and also from an order entered in said clerk’s office on the 24tli day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporation —' dismissal of police officer.</p> <p>The fact that a policeman did not report the loss of á pocketbook by a prisoner, of which he did not know until after the prisoner’s discharge; and on subsequently finding the pocketbook, kept it for the owner at his request, and denied to the police captain that it contained pawn tickets, does not justify his dismissal, when it is undisputed that it contained no tickets when found by. the officer.</p>

Reargument upon a writ of certiorari issued out of the Supreme Court and attested oh the 26th day of May, 1905, directed to Nicholas J. Hayes, as fire commissioner of the city of New York, Commanding him to certify and return to the' office of the clerk of the county of Kings all and singular his proceedings had concerning the dismissal of the relator from the-fire department of the city of New York. . (See 124 App. Div. 909.)

<p>Appeal by the defendant, the Hew York and Queens County Railway Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, rendered on the 4th day of October, 1907.</p>

<p>Appeal by the defendant, the New York and Queens County Bail way Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 28th day of October, 1907.</p>

<p>Municipal Court — trial—jury of twelve.</p> <p>Where in the Municipal Court of Hew York city the court directs the trial of an - issue of fact by a jury under section 282 of the Municipal Court Act, the jury must consist of twelve men if the damages claimed exceed 8100.</p> <p>Where defendant’s oh j ection to a j ury of six, made before any evidence is offered, is overruled and the trial proóeeds, a judgment for plaintiff will he reversed. By continuing the trial the defendant does not waive his objection.</p>

Appeal by the plaintiff, Joseph Staskowski, an infant, by his guardian ad litem, 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 27th 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 Hew York Trial Term.

<p>Appeal by the defendant, J. Varnum Mott, 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 25th day of March, 1907, upon the .verdict of a jury for $4,200, and also from an order entered in said clerk’s office on the 6th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Will —probate — disposition of realty only— executor and administrator — personalty.</p> <p>A will disposing of realty only is entitled to-probate as a will of personalty if the testator appointed an executor.</p> <p>A testator leaving such will does not die intestate as t.o personalty, but the executor holds the same in trust for those entitled thereto under the Statute of Distributions.</p>

<p>Appeal by the defendant, David. Albrecht, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings oh the 3.1st day of January, 1908, upon the decision of the. court, rendered after a trial at the Kings County Trial Term, a jury having been waived.</p>

<p>Appeal by the defendants, Pasquale Patrono and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the loth day of March, 1907, upon the decision of the court rendered after a trial at the Westchester Special. Term.</p>

<p>Master and servant — safe place to work—scaffold — inspection— charge — Labor Law.</p> <p>Since a master is not liable to his servant for defects of which he had no notice,, and which he could not have discovered in the exercise of ordinary cafe, it is error to refuse to charge “ That if the plank (of a scaffold) broke because of a ■ defect which was not discoverable upon inspection, there is no negligence shown oh the part of the master and the defendant would not be liable in this case,” where the court in its previous charge had not touched upon this point. ■ Under section 18 of the Labor Law a master is not an insurer of an employee while working on a scaffold. ■ ■</p> <p>A refusal to charge except as already charged is an instruction to the jury that the rule requested is hot wholly sound.</p>

<p>Appeal by- the. defendant, the Revolving Airship Tower Company, from an order of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered on the 2oth day of February, 1908.</p>

<p>Practice — Municipal Court — action, against corporation oñ note.</p> <p>Section 1778 of the Code of Civil Procedure, requiring a corporation when sued on a note or other evidence of debt for the absolute payment of money to serve with a copy of the answer or demurrer a copy of an order of a judge directing a trial of the issues or else at the expiration of twenty days after the service of a copy of the complaint judgment may be taken as in default in pleading, applies to cases brought in the Municipal Court of the city of New York.</p> <p>That said section gives the plaintiff a right to take judgment only at the expiration of twenty days after service of the complaint, does not prevent it from applying to Municipal Court practice.</p>

<p>Corporation.— expulsion of director — amendment to by-laws.</p> <p>In'the absence of any specific statutory authority or provisions in the articles of incorporation, or in by-laws duly adopted by the stockholders, the. directors of' ,¡‘ a business .corporation have no power to expel a fellow-director from the .....board, and, hence, no power to pass a valid amendment to the by-laws under which the directors may assutiie to exercise that power.</p> <p>The tefrn'"existing law’’' as üséd in subdivision 5 of section 11 of the General ;' ''Corporation Law regulating the power to make by-laws refers not only to s'tat- • rites but'to decisions of the court.</p>

<p>Crime — burglary, first degree — identification of defendant.</p> <p>Evidence on the trial of an indictment for burglary, first degree, examined, and held, sufficient to identify the defendant as one of the persons who committed the crime, and judgment of conviction affirmed.</p>

<p>Municipal corporation.— dismissal of policeman.</p> <p>Evidence taken on a proceeding resulting in the dismissal of a police officer examined, and held, that, he was improperly discharged.</p>

<p>Appeal by the defendant, the Garden City Company, from a .judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the- 21st day of June, 1907, upon the verdict of'a jury for $2,700, and also from an order entered in said clerk’s office on the 31st day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes. _</p>

<p>Master and servant — Employers’ Liability Act — injury on runway — assumption of risk — contributory negligence — appeal from nonsuit.</p> <p>Where, in an action under the Employers’ Liability Act, the plaintiffs evidence shows that a runway was defective,'and that while wheeling a heavy load he stepped into a depression, slipped on an imbedded nail, fell and was injured, the questions of. assumption of risk and of contributory negligence are for the jury even though the runway were sufficiently lighted, and it is error to dismiss the complaint.</p> <p>On appeal from a nonsuit at'the close of the plaintifi’s case he has a right to the most favorable view of the evidence that the jury could have taken had the case been submitted.</p>

Appeal by the defendant, The Hew York Central and Hudson Eiver Eailrbad 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 20th day of June, 1907, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the 20tli day of June, 1907, denying the defendant’s motion fór a new trial made upon the minutes.

■ Appeal by the plaintiff, Mary Reilly, in one case, from a judgment of the Supreme Court in favor of the .defendant, entered in the office of the cleric of the county of Richmond' on the 16th day óf August, 1907, upon'tlie decision of the court, rendered after a trial at the Richmond Special Term, dismissing the'complaint upon the- merits, and in the other case from an'order entered in said clerk’s office on the 19th day of November, 1907, denying the plaintiff’s motion for…

Appeal by the defendant, Henry E. Schwab, 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 Suffolk on the 14th day of April, 1908, denying the said defendant’s motion to change the place of trial from the county of Suffolk to the county of Kings.

<p>Appeal by the defendant, Margaret F.-Wynne, 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; 1907, upon the decision of the court, rendered after a trial 'at the Kings County Special Term, relieving the 'plaintiff ' from the obligation of a certain contract.</p>

Appeal by the defendant, Samuel Bikoff, f\pm a judgment of', the Municipal Court of the city of Hew York in favor of the plaintiff, rendered óñ the. 30th day of January, 1908.:

Appeal by Elizabeth M. Duffy, individually and ás administratrix, etc., from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 12th day of December, 1907, and also from an order entered in said Surrogate’s Court on the 15th day,of January-, 1908, denying the appellant’s motion to resettle the said decree.

Appeal by the relator, The Mount Vernon Trust Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the'30th day of March, 1908.

Appeal by the plaintiff, Ida Applegate Drake, from a final order of the Municipal Court of the city of Dew York, dismissing the petition in summary proceedings brought for non-payment of rent.

Appeal by the defendants, The Brooklyn Union Elevated Railroad 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 Kings on the 9th day of December, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, enjoining the defendants from maintaining and operating a certain elevated railroad structure along the side of the plaintiff’s premises, unless a…

Appeal by the plaintiff, Patrick Martin, 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 30th day of October, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Queens County Trial Term.

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 18th day of November, 1907, upon the verdict of a jury rendered by direction of the court, as amended by an order entered in said clerk’s office on the 29th day of January, 1908, and also from an order entered in said clerk’s office on the 18th day of December, 1907, denying the defendant’s motion for…

Appeal by the plaintiff, Robert Y. Y. Sewell, from a judgment of the Supreme Court in favor of the defendant, entered.in the office of the clerk .of the county of Nassau on the lltli day of October, 1907, upon the verdict of a jury, rendered by direction of the court after a trial at the Uassau Trial Term, dismissing the complaint upon the merits.

Appeal by the defendant, George Gordon Hastings, as executor, etc., from a judgment of the Supreme Court in favpr of the-plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of December, 1907, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Appeal by the plain tiff, Claudius F. Beatty, 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 4th day of January, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.</p>

Oebtiobaei issued out of the Supreme Court and attested on the 4th day of November, 1907, directed to Charles F. Lewis, county treasurer of Nassau county, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in relation to the denial of the relator’s application to set aside and vacate a cancellation of a tax sale.

Appeal by the Methodist Episcopal Hospital in the City of Brooklyn and others from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 4th day of December, 19.07.

Appeal by the defendant, Grover Cleveland Poole, from a judgment of the Supreme Court in favor of the 'plaintiff, rendered on the 19th day of June, 1906, upon the verdict of a jury after a trial at the Nassau Trial Term convicting the defendant of the prime of murder in the second degree, and also from an order made at the Kings County Special Term on the 18th day of December, 1907, and entered in the office of the clerk of the: county of Nassau, denying the defendant’s…

Appeal by the plaintiff, Michael Tracey, 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 November, 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 22d day of November, 1907* denying the plaintiff’s motion ,for a new.…

<p>Appeal "by tlxe defendant, the Central blew England 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 Dutchess . on the 20tli day of June, 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 3d day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, Caroline W. Young and another, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 27th day of September, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint as to said defendants and canceling and discharging of record the lis pendens herein.

Appeal by the defendant, the New York Contracting Company —Pennsylvania Terminal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 21st day of November, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn, Queens County and Suburban Railroad Company, from an order of the Municipal Court of the city of Hew York, borough of Brooklyn, entered on the 24th day of December, 1907, granting a new trial.

<p>Appeal by the plaintiff, Max Lacher, from a judgment of the Municipal Court of the'city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 1st day of April, 1907, upon the verdict of a jury allowing the defendants’ counterclaim.'</p>

Appeal by the defendant, John McGee, from a judgment of the Municipal Court of the city of Mew York, borough of Richmond, in favor of the plaintiff, rendered on the 21st day of January, 1908.

Appeal by the defendant, Sophie Novak, from a judgment of the Municipal Court of the city of New York, borough of Brook lyn, in favor of the plaintiffs, rendered on the 9th day of October, 1907.

Appeal by the plaintiff, Esther Cramer, from an order of the Municipal Court of the city of Kew York setting aside the verdict of a jury in an action to recover for the loss of a scarf intrusted to the defendant.

Appeal by the plaintiff, Adolph Pape, from an interlocutory judgment of the Supreme Oonrt in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of February, 1908, upon the decision of the court, rendered after a trial at the Kings. County Special Term, sustaining the demurrer interposed by the defendant upon the ground that the complaint failed to state facts sufficient to constitute a cause of action.

o Appeal by the defendant, the Village of Hyack, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the comity of Eockland on the 5tli day of April, 1907, upon the report of a referee appointed to hear, try and determine the issues.

Appeal by the petitioner, Francis A. Curry as executor, etc., of Julia O’Gorman, deceased, and another, from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 30th day of December, 1907.

Appeal by the - defendant, William Muir, 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 21st day of April, 1908.

<p>Appeal by the defendant, the Kathairo Chemical 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 15th day of April, 1907, upon the verdict of a jury in so far as said judgment awards plaintiff any sum in excess of $237, and also from two orders entered in said clerk’s office on the 16th day of April, 1907, and on the 9th day of May, 1907, respectively, denying the defendant’s motions for a new trial made upon the minutes.</p>

Appeal by the defendants, Joseph J. O’D'onohue, Jr., and others, from a judgment of -the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Kings'on the 16 th day of January, 1908, upon the decision of the court rendered after a trial at the Kings County Special-Term.

Appeal by the defendant, Isidore Schwob, 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 11th day of January, 1907, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

Appeal' by the proponent, Margaret Duffy, an executrix named ■in the alleged will of Owen Duffy, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 13th day of September, 1907.

Appeal by the plaintiff, Frederick F. ISTolte, from an order of the Municipal Court of the city of Kew York requiring the plaintiff to furnish a bill of particulars.

Appeal by the defendant, Daniel Gruenapple, as president, etc., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of January, 1908.

<p>Appeal by the defendant, Hubert O. Seale, from a judgment of the Municipal Court of the city of Hew York in favor of the ■plaintiff. .</p>

Appeal by the defendants, Adrian H. Joline and another, as receivers, etc., from a judgment of the Municipal Court of the city; of New York,' borough of Brooklyn, in favor of. the plaintiff, rendered on the 3d day of March, 1908.

<p>Appeal by the defendant, the Staten Island Midland Railway Company, from a judgment of the Municipal Court of the city of Hew York, borough of Richmond, in favor of the plaintiff, rendez*ed on the 20th day of September, 1907, after a trial without a jury.</p>

<p>Contract — construction of sewer — condition precedent to recovery.</p> <p>Where a contract for the construction of a sewer provides for payment on the completion of the work and the delivery of a certificate from the building department, or any department of the city of New York,, that the work has been properly done, the contractor as a condition precedent to recovery must procure such certificate or show that the same has been unreasonably or unjustifiably withheld.</p>

Appeal by the plaintiffs, Samuel Lippmann and another, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 11th day of February, 1908, dismissing the complaint after, a trial of the issues.

Appeal by the defendant, Frank Lopardo, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 7th day of April, 1908.

■ Appeal by the defendant, Times Square Automobile Company, from a judgment of the Municipal Court of the, city of. Ñew York, borough of Queens, in favor of the plaintiff, rendered on the 30th • day of March, 1908, upon the verdict of a jury..

Appeal by the defendants, Harris Cohen and another, partners, etc., from a judgment of the Municipal Court of the city' of Hew; York, in favor of the' plaintiffs, entered' after a trial before the court without a jury. .

Appeal by the defendant,- The Employers’ Liability Assurance Corporation, Limited, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 1st day of June, 1907, upon the report of a referee. ' Action on a fidelity policy of insurance issued in this state to the plaintiff a resident’ thereof.

<p>Appeal by the defendant. The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plsfintiff.</p>

Motiox by the plaintiffs, Patrick H. McGratty and others, for a new trial upon a case containing exceptions, ordered to be heard at ■ the Appellate Division in the first instance after a trial upon a non-suit directed by the court at the close of the plaintiff’s case upon a tidal at the Kings County Trial Term in October, 1907.

Appeal by the plaintiff, Frank Malizia, 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 11th 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 Queens County Trial Term.

Appeal by the defendant, the Fiss, Doerr & Carroll Horse 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 8th day of Hovember, 1907, Upon the verdict of a jury for $1,200, and also from an order entéred in said-clerk’s office on the 6th day of Hovember, 1907, denying the defendant’s motion for a new trial made upon the minntés. The action is for negligence.

Appeal by the plaintiff,. Margaret Molloy, as executrix, 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 26th day of October, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term, on default of the plaintiff to comply with the conditions on which he. was allowed to withdraw a juror.

Appeal by the plaintiff, Steven Zajdak, an infant, by JosephZajdak, his guardian ad litem, 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 2d day of November, 19Ó7, ujion the dismissal of the complaint by direction of the.court at the close óf the. plaintiff’s case, upon a trial at the Queens County Trial Term. The action was by servant against master for damages for negligence.

Appeal by the defendant, Charles S. Whiting, 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 Nassau on the 28th day of March, 1908, denying the defendant’s motion to modify an order for his examination before trial.

<p>Crime — admission of minors to place of entertainment — proof essential to conviction — “ guardian ” defined.</p> <p>The owner of an establishment where moving pictures are exhibited cannot be convicted of a violation of section 290 of the Penal Code in admitting minors under sixteen years of age, in the absence of proof that the place was injurious to the health and morals of the minors.</p> <p>Moreover, in a prosecution under said section it must be shown that the minors were unaccompanied by “parent or guardian,” and by the latter is meant not a guardian appointed by the court, but a proper custodian.</p>

Certiorari issued out of the Supreme Court and attested on the 6th day of May, 1907, directed to Herbert S. Harvey, as sheriff of the county of Queens, commanding him to certify and return to the office of the clerk of the county of Queens all and singular his proceedings had concerning the removal of the relator .from her position as assistant matron in the county jail. ' The sheriff -served on the relator the following notice: “ You are hereby requested to appear before me…

Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 28th day of March, 1908, as resettled, fixing the fees and compensation of the temporary receivers for the Knickerbocker Trust Company and of their counsel. The temporary receivers were appointed herein on October 25, 1907. They were never made permanent.

<p>Keceivers — amount of compensation — agreement with corporation not binding—reargument.</p> <p>A court holding the funds of a corporation by its- receivers is not bound to allow the commissions agreed upon between the receivers and the directors of the corporation.</p> <p>Motion for reargument of an appeal upon which the compensation of receivers was reduced denied.</p>

Appeal by the plaintiffs, Joseph E. Clark and another, from a judgment of the Municipal. Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 7th day of March, 1907, dismissing the complaint herein.

<p>Appeal by the plaintiff, Joseph Schmidt, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the county of Kings on the 10th day of May, 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 Kings County Trial Term.</p> <p>The action was brought under the Labor Law to recover damages for personal injuries.</p>

Appeal by the defendant,: Solomon B. Bavega, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of July, 1907, upon the decision of the court, rendered after a trial at the Westchester Special Term, among other things restraining the defendant, his agents, etc., from selling, leasing or using within the State of New York phonographs, etc., except when acting ás the…

Appeal by the plaintiff, Irving A. Hazen, 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 17th day of July, 1907, upon the decision of the court, rendered after a trial before the court without a jury at the Kings County Trial Term, dismissing the complaint upon the merits.

Appeal by the defendant, Thomas Drum, from & judgment of the Court of Special Sessions of the Peace of the Second Division of the city of Hew York, rendered on the 21st day of February, 1908, convicting the defendant of keeping a disorderly house.

Appeal by the defendant, The Nassau Electric 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 Kings On the 13th day of November, 1907, upon the verdict of a jury for $650, and also from an order entered in said clerk’s office on the 22d day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Pleading — complaint stating single cause of action for libel.</p> <p>Complaint examined, and held,, to state a single cause of action for libel, with special damage caused by the plaintiff’s discharge from employment,, without embodying another cause for damages for breach of contract of employment.-</p>

Appeal by the defendants, Joseph II. Bruere, as executor, etc., and another, from a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county o.f Kings' on the 16th day of April, 1907, upon the decision of the court rendered after a trial at the'Kings County Special Term.

Appeal by the defendants, The Nassau Electric Eailroad 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 Kings on the 24th day of - May, 1907, upon the report of a referee.

Appeal by the defendant, the Long, Island Railroad Company, from a ‘judgment of the Supreme Court in favor of the plain till, entered in the office of the clerk of the county of Kings on the 13th day of February, 1907, upon the verdict of a jury reduced by.stipulation -to $5,000, and also from an order entered in said clerk’s office on the 18tli day of February, 1907,, denying the defendant’s motion for- a new trial made upon the minutes,

<p>Evidence — self-serving declaration — money had and received ^-Statute of Limitations.</p> <p>The statement of an alleged creditor to an administratrix that the decedent owed him money is no evidence of such indebtedness.</p> <p>Where an alleged loan, if ever made, was barred by the Statute of Limitations before the death of the borrower, there can be no recovery against his estate in the absence,of proof of any fact which .tolled the statute during the borrower’s lifetime, ' Mere evidence that the alleged lender told the decedent’s representative that he had assigned an insurance policy to secure the loan is no proof of that fact, where the policy and assignment are not shown to have been delivered, but remained with the decedent’s attorney.</p>

Appeal by the defendant, James G. Carroll, as trustee, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 25th day of February, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.

. Appeal by the plaintiff, William Seheer, from a judgment of the Supreme Court in favor of. thq defendant, entered in the office of the cleric of the county of Queens on the 17th day of February,. 1906, upon the report of a referee, dismissing the complaint upon the merits. The suit is to restrain continued trespasses by the defendant on real estate of the plaintiff.

Appeal by the defendants, Ahrend F, Meyer and another, from a judgment of the County Court of the county of Westchester in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of June, 1906, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 16th and 17th days of August,. 1907, respectively, denying the defendants’ motions for a new trial.

Appeal by the defendant, the John 0. Gabler Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of • the plaintiffs, rendered on the 20th day of January, 1908, in an action brought to recover for materials and work, labor and services furnished and performed for the defendant by the plaintiffs..

Appeal by the defendant, Nora P. McKeon, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of December, 1907.

<p>False imprisonment — deposition sufficient to give jurisdiction — result of. prosecution and probable cause immaterial.</p> <p>An action, for' false imprisonment cannot be maintained either against a magistrate or the complainant where the deposition upon, which the warrant issued " stated facts sufficient to give jurisdiction to the magistrate by,presenting,, even in a slight degree, a question upon which the judicial mind was called to \ act in determining whether a crime had been committed by the person charged.</p> <p>Deposition upon which a warrant of arrest was issued for a violation of subdivision 10 of section 689 of the Penal Code by damaging an engine with intent to destroy and render it useless, examined and held, sufficient to give jurisdiction to the magistrate to issue the warrant.</p> <p>It is immaterial that upon the criminal prosecution no proof was made that the plaintiff had shifted the lever of the controller of electrical machinery as charged in the information and that the only act proven was the removal of . some fuses which he claimed to own, thus preventing the operation of the' machinery, for the recovery in an action for false imprisonment depends offiy upon whether the magistrate had jurisdiction to issue the warrant on which the plaintiff was arrested.</p> <p>So too it is immaterial that the plaintiff was discharged on the hearing or that he had committed no crime, or that, the magistrate by issuing the warrant erred ■ in judgment making it irregular or void, for neither the magistrate nor the complainant are liable for a false imprisonment if the deposition be sufficient to give j urisdiction.</p> <p>The fact that the complainant had no probable cause, to believe the plaintiffi guilty of a crime is no defense to an action for false imprisonment, being pertinent only in actions for malicious prosecution.</p>

<p>Master and servant — contract of employment construed—hiring for year — effect of holding over.</p> <p>Where a contract has no technical or obscure phrases or latent ambiguities,- its interpretation is for- the court. ■</p> <p>An-agreement employing an engineer “at a salary of $2500 for the first year and if” the services prove satisfactory, the “remuneration for the second'year and thereafter ” to be §3,000 per annum, makes a hiring from year to year; and if the employee, having continued in service beyond the second year, is discharged without cause,, he is entitled to-recover the salary to the end of the year.</p> <p>Where-a contract of employment for a year at an annual salary is renewed from - year to year by continuance in the service without change in the terms of thecontraót, the employer is obligated to retain the employee for a full-year.</p>

Appeal by the plaintiffs, Christopher Schreiber and another, from a judgment of the Supreme Court.,in favor of the defendant, enteréd in the office of the clerk of the' county Of Nassau on the 21st day of .September, 1901, upon the decisión of the court, rendered after a .trial at the Nassau Special Term, dismissing the complaint upon the merits, .- The action was to restrain the defendant from trespassing on the land of the plaintiffs by running.its trains' thereon, it…

Appeal, by the defendants, George C. Tilyou and Frederick Ingersol (sued herbin as “John Doe”) 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 12th day of March, 1908, vacating the report of a referee herein and appointing another' referee.

Appeal by the defendant, The Western Union Telegraph 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 18th day of January, 1908, upon the verdict of a jury, rendered by direction of the- court after a trial at the Westchester Trial Term, 'and also from an order entered in said clerk’s office on the 29th day of January, 1908, denying the defendant’s motion for a new trial made upon…

<p>Appeal by the defendant, The President and 'Trustees of the Village of Ossining, from two judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 28th day of December, 1907, upon the decision of the court rendered after a trial at the Westchester Special Term.</p> <p>The opinion delivered at Special Term is reported in Hyland v. President, etc., of Ossining (57 Misc. Rep. 212).</p>

<p>Master and servant — contract of employment — commissions after discharge.</p> <p>One employed to carry on business correspondence in a foreign language under a contract giving him a certain sum per year and a special commission on all receipts in his department, settlements of his compensation to be made monthly, is not, after his discharge, entitled to commissions on moneys received on business procured by him during the employment.</p>

<p>Appeal by the defendánt, The Board of Education of the City of New York, from a judgment of the .Municipal Court of the city of New York in favor of the plaintiff.</p> <p>This is an action for $500 of alleged unpaid balance of salary to the plaintiff as a school principal.</p>

<p>Appeal by the plaintiff, Augustus Thompson, from a judgment of the Supreme Oourt, in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 28th day of October, 1907, upon the decision of the court rendered after a trial at the Richmond Special Term dismissing the complaint.</p> <p>The action was for an absolute divorce, and the defendant did not answer or appear.</p>

Appeal by the defendant, the Franklin H. Kalbfleisch 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 Kings on the 15th day of February, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the amended complaint made upon the ground that two causes of action were improperly joined.

Appeal by the defendant, The Brooklyn Heights Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of January, 1908, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 4th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Eiverside Bank, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 14th day of May,. 1907, upon the report of a referee. ■ . - Peter McDonnell, the original • plaintiff, having died pending the . .appeal herein, the present plaintiffs were substituted pursuant to an order made on the 4th day of October,-1907..

Appeal by the defendant, The Brooklyn Heights Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of December, 1907, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 19th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Master and ■ servant — negligence — injury by hoist — complaint—evidence of negligence not alleged—subsequent precautions.</p> <p>Under a complaint which alleges that the defendant was negligent in carelessly operating a hoisting machine so that the plaintiff without fault or negligence on his part was struck by materials falling therefrom, it is error to admit evidence that the accident happened because of the defective and unsafe condition of the apparatus and to charge that plaintiff may recover upon that ground. It is also reversible error to admit evidence that immediately following the injury a blacksmith in the defendant’s employ was seen repairing the machine.</p>

Appeal by- the defendant, the National Biscuit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of November, 1907, upon the verdict of a jury for $6,000, 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 defendant, .Uvalde -Asphalt Paving Company,, from a judgment of the Municipal Court of the city of . Mew York, borough of Brooklyn', in favor of the plaintiff, rendered on the 5th day of March, 1908. .

<p>Trial—verdict for less than amount claimed—when defendant not prejudiced — evidence—business of plaintiff.</p> <p>A defendant cannot complain because the plaintiff did not recover,as large a verdict as he was entitled to, unless-the amount of the verdict shows that the jury either Wholly disregarded the evidence, or misapprehended its effect, or overlooked some important fact, or must necessarily have found some fact in favor of the defendant wholly inconsistent with-any verdict for the plaintiff.</p> <p>Thus, a defendant sued for quantum meruit on an unliquidated claim of $824 is not aggrieved because the verdict is for $800.</p> <p>Where plaintiff suing to recover for work, labor and services when asked.hia business testified that he w.as a licensed master plumber it is not reversible error to refuse to strike out the answer on an objection that it was not the best evidence.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 6th day of April, 1908.

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

Appeal by the defendants, Richard Cochran 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 13th day of November, 1907, upon the verdict of a jury for $7,500, and also from' an order entered in said clerk’s office on the 11th day of November, 1907j denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thornton Ellis, from a judgment of the Supreme Court in favor of the defendant New York City Railway Company, entered in the office of the clerk of the county of Kings on the 26th day of April, 1907,.upon the verdict of a jury;.also from a judgment in favor of the defendant Park & Tilford, entered in said clerk’s office on the 3d day of May, 1907, upon the decision of the court setting aside a verdict in favor of the plaintiff, and also from an order…

<p>Appeal from judgment — questions raised after motions for direction of verdict and nonsuit — sale of smuggled goods — confiscation by government — right of buyer to recover purchase money— estoppel — restitution.</p> <p>Although a defendant moved for a new trial upon the minutes, if there be no appeal from the order denying that motion, the case comes before the Appellate Division upon the judgment only.</p> <p>If a defendant moves for a nonsuit and the plaintiff for a direction of verdict, there is a waiver of the right to go to the jury, and the verdict rests upon the same foundation as though the facts were found by the jury.</p> <p>Where a defendant merely asks to go to the jury on specific questions after the denial of his motion for a nonsuit, he is deemed to have waived the right to go to the jury on the other questions in the case.</p> <p>Where, after a sale of goods, they are seized by the Federal government for nonpayment of import duties by the seller, the buyer by appearing in the proceeding to condemn the goods and claiming title is not estopped from rescinding the sale and recovering the purchase price from the seller where the buyer notified the seller of the proceeding and the latter employed an attorney to defend the goods.</p> <p>Where tfie buyer paid for the goods with checks and notes without knowledge of the fact that they were smuggled, the payment was not voluntary so as to defeat a recovery, although he subsequently paid the notes to the transferee of the buyer.</p> <p>Where such goods have been seized and condemned by the Federal government, the buyer need not offer restitution in order to recover the purchase price.</p>

Appeal by the plaintiff, Margaret D. Orser,' 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 9th day of March, 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 Kings County, Trial Term, and also from an order entered in said clerk’s office on the 1st day of April, 1908, denying the plaintiff’s motion for a new trial made…

Appeal by the plaintiff, Silver & Company, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 19th day of December, 1907, and entered in the office of the clerk of the county of Kings, denying the plaintiffs motion to strike out certain portions of the amended supplemental answer.

Appeal by the plaintiff, Henry Spannknebel, Jr., as administrator, etc., from a judgment of the Supreme Court in- favor of the. defendant, entered in the office of the clerk of the county of Westchester on the 22d day of June, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 13th day of July, 1906, denying the…

Appeal by the defendant, The Hew York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester oh the 7th day of. December, 1907, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 7th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Evidence — increase of fire hazard — expert testimony.</p> <p>In an action to recover upon a policy of fire insurance containing a clause that it should be void if tile hazard were increased by means within the control of the insured, it is not error to exclude the opinion, of an expert as to whether the insured had increased the hazard by exhibiting moving pictures.</p>

Appeal by the defendant, the Coney Island and Brooklyn Bail-road Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff.

Appeal by the defendant, Levi C. Weir, as president, etc., from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff.

Appeal by the plaintiff, Hugh F. Gordon, 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 April, 1907, as resettled by a judgment entered in said clerk’s office on the 7th day of June, 1907, dismissing the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action, and also from an order entered in said clerk’s office on the 18th day of April,…

Appeal by the defendant, the Brooklyn Heights Railroad Company, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk- of the county of Queens on the 8th day of November, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of November, 1907, denying the said defendant’s motion for a new trial made upon the minutes.

, Appeal by the defendant, Henry Hemleb, from a judgment of the Court of Special Sessions of the Peape of the Second Division of the-city of New York, rendered on the 27th day of May, 1907, convicting the defendant of a violation of section 265 of the Penal' Code.

Appeal by the defendants, Louis A. Solomon and others, individually and as-executors, etc., and others, from ail order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clei’k of the county of Kings on the 19th day of March, 1908, directing a retaxation of costs. .

Appeal by the defendant, the Retsof Mining Company, from a judgment of the Supreme Court in favor 'of the plaintiff Edward W. Brown, as surviving partner of the firm of Brown & Shaw (the plaintiff James W. Shaw having died after the action was begun), entbred in the office of the clerk of the county of Richmond on the 29th 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…

Appeal by the proponent, Thomas F. Bannon and another, from a decree of the' Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 26th day of November, 1907.

Appeal by the defendant, Fritz Leopold Schmidt, Jr., from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Kings on the 3d day of July, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Mandamus—osteopaths are physicians.—right to register and issue death certificates.</p> <p>Osteopaths are made practitioners of medicine and physicians by chapter 344 of the Laws of 1907, and, except for the ■ restrictions imposed thereby, are entitled to all rights and subject to all the penalties of other physicians and medical practitioners.</p> <p>An osteopath, therefore, can compel the department of health of the city of New York to register him in the list, of physicians of the city and to accept death certificates from him as from physicians not osteopaths.</p>

Appeal by the plaintiff, .the New York Dock Company, from a judgment of the Supreme Court iu favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of October, 1907, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the plaintiff, John S. Davenport, as receiver, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bichmond on the 2d day of February, 1907, upon the report of a referee dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 2d day of February, 1907, granting the defendant an extra allowance.

Appeal by the defendant, the Bellew and Merritt 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 14th day of November, 1907, upon the verdict of a jury for $11,500, and also from an order entered in said clerk’s office on the 25th day of November, 1907, denying the defendant’s motion for a new tidal made upon the minutes, in an action brought under the provisions of the Employers’…

• Appeal by the defendant, Eugene B. Dudley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of January, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s , office nunc pro tunc as of the - 23d day of January, 1907. denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary E. McCormack, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of said county on the 14th day of June, 1907, upon the verdict of a jury dismissing' the complaint upon the merits, and also from an, order entered in said clerk’s office on the 14th day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by Edward Ward Vanderbilt, an alleged incompetent, 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 7th day of ¡November, 1907, confirming an inquisition in lunacy theretofore filed herein, and appointing a committee, and also from an order entered in said clerk’s office on the same day denying the appellant’s motion to vacate and set aside the-said inquisition because of…

Appeal by the defendant, Patrick J. Bing, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of July,. 1907, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the1 office of the cleric of the county of Kings on the 28th day of January, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of February, 1Q08, denying the defendant’s motion for a new trial made upon the minutes.

, Appeal by-the plaintiff, Charles Qbenland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of December, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term. •

' Appeal by the plaintiff, Rudolf Maisch, fropi an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the coilnty of Kings on the 9th day of May, 1908.

<p>Crime — homicide — self-defense.</p> <p>Evidence given on a prosecution for murder in the second degree examined, and held, insufficient to establish justification for the homicide.</p> <p>Jerks, J., dissented:</p>

Appeal by the plaintiff, Frederick S. Heal,. from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond, on the 7th day of December, 1907, upon the decision of the court rendered after a trial at the Richmond Special Term dismissing the complaint.

Appeal in each of the above-entitled actions by the defendant, Josiah B. Tisdale, from a judgment of the County.

<p>Contract —consideration—extension of time— forbearance of threatened suit.</p> <p>If an instrument has a consideration, it is equally valid whether or no the true consideration be expressed therein.</p> <p>The extension of time to pay a note is sufficient consideration for a mortgage given to secure the indebtedness.</p> <p>Where a bank was threatening to set aside a transfer of property from a mother to her daughters as in fraud of its rights as creditor, a mortgage of the premises to secure the debt given in consideration of the bank's refraining from bringing such action is supported by a sufficient consideration, where the bank does so refrain.</p>

Appeal, by the. plaintiff, the Town of Fort Edward, from an order of the Supreme Court, made at the Saratoga Special; Term and entered in the office óf the cleric of the. county of Washington on the 19th day of. October, 1907$ granting the., defendant’s motion to vacate an injunction herein. - -

<p>Appeal by the defendants, The Waverly Water Company and others, from an order of the Supreme Court, made at the Cortland Special Term and entered in the' office of the clerk of the county of Tioga on the 9th day of April, 1908, overruling the defendants’ preliminary objections to the sufficiency of the amended petition of the plaintiff.</p>

<p>Certiorari issued out of the Supreme Court, and attested on the 10th day of February, 1908, directed to Sidney L. Ford and others, Democratic members of the board of supervisors of Greene county, etc., commanding them to certify and return to the office of the clerk of the county of Greene all and singular their proceedings had in relation to designating certain newspapers to publish the Session Laws and the concurrent resolutions of the Legislature required to be published for the year 1908.</p>

Appeal by the defendant, Anna E. Lyon, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on .the 20th day of-January, 1908, denying the defendant’s motion to vacate a judgment theretofore entered herein.

<p>Negligence — injury by electricity — proximate cause — evidence supporting verdict.</p> <p>A finding by the jury that the plaintiff, a lineman, received an electric shock through a linen tape, which had been furnished to him by the defendant to measure the distances between certain high tension wires, will be sustained where there is evidence that small copper wires were concealed in the tape'ánd that-a considerable amount of electricity passed through the tape and also proof of other facts supporting the finding.</p> <p>It. is negligence for a telephone company to furnish a servant such a tape for such a purpose, especially where the superintendent knew of its dangerous character. The fact that a fellow-servant shook the tape during the measuring, which might have caused it to touch the high tension wire, does'not relieve the defendant from its primary negligence in furnishing the tape.</p> <p>Where several proximate causes contribute to- an accident and each is an . efficient cause Without which the accident would not have happened, it may be "attributed to.any of the causes,.</p> <p>Smith, P. J., and Sewell, J., dissented.</p>

<p>Appeal by the plaintiff, the American District Telegraph Company, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 24th day of April, 1908, upon the decision of the court, rendered after a trial at the Albany Special Term, sustaining the defendants’ demurrer to the amended complaint, and also from an order entered in said clerk’s office on the 24th day of April, 1908, denying the plaintiff’s motion for an injunction pendente Vite.</p>

Appeal by the defendants, Mike. Elmore and another, from a. judgment of the County Court of Schenectady county in favor of the plaintiff, entered in the office of the clerk of said county on the 17th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.

. Appeal'by the plaintiff, J. Harris Loucks, from a j.udgmént of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 17th day of December, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term in an action to récovdr . possession of a certain quantity of hay.

<p>Appeal by the Watertown Gas Light Company from an order made by the Commission of Gas and Electricity, bearing date the 5th day of June, 1907, denying a certificate of authority to issue stock and bonds of said company according to the petition filed, and limiting the issue of stock to $150,000 and of bonds to $450,000.</p>

Appeal by the relator, Peter B. Scanlon, 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 30th day-of January, 1908, denying the relator’s application for a writ of mandamus.. - 1

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

Appeal by the defendant, the Fonda, Johnstown and Gloversville Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 1st day of October, 1907, upon, the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 25th day of September, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the' plaintiff, William B. Cary, from a judgment of the County Court of Washington county in favor of the defendant, entered in the ofSbe of the clerk of said county on the 8th day of'February, 1908, upon the dismissal of the complaint by direction of the court.'

. Certiorari issued out of the Supreme Court and attested on the 14th day of ..September, 1907, directed to the Public Service Com-. mission of the Second District of the'State-of New.York and to the individual members theréof, commanding them to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had by the State Board of Bailroad Commissioners in the matter of the application of the Hornell,’ Bath and Lake Keuka Bail way…

<p>Trade name — use calculated to deceive public—injunction,</p> <p>The plaintiff, having for five years been engaged in manufacturing and -bottling. beer known as “Laurer beer,” leased the premises where the bottling business was conducted to the defendant and executed a bill of sale of personal prop- ■ erty therein used in the business and agreed to sell exclusively to the defendant in that locality the beer known by said name for the purpose of bottling and sale. By the agreement the1 defendant under the name “ Laurer Beer Bottling Company” bottled and sold the beer and continued said business until the expiration of the lease. Neither the lease, contract, nor bill of sale transferred to the defendant a permanent right to use the name.</p> <p>Bfild, that the defendant was merely licensed to use said name during the continuance of the contract and lease, and t-hat, having ceased to- bottle and sell Laurer beer, should be enjoined from using the name “Laurer Beer Bottling Company ” as such use was calculated to deceive the public and work injury to ' the plaintiff;</p> <p>That it was immaterial that during the lease the bottling business was extended and enlarged, as the reputation and good- will so acquired may have resulted from the quality" of beer -manufactured by the plaintiff;</p> <p>That the defendant should not be restrained from .using-the property transferred by plaintiff under the bill of sale, but merely from doing business under the name of the ‘ ‘ Laurer Beer Bottling Company ” or from using said name in any manner in connection with the business.</p>

Appeal by the defendant, Walter Henry, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 17th day of June, 1907, convicting the defendant of the crime of grand larceny in the first degree, and from an order bearing date the 30th day of October, 1907, denying defendant’s -motion for a- new trial, and also from an order denying a motion for an arrest of judgment.

<p>Application to disbar an attorney.</p>

<p>Attorney disbarred — Statute of Limitations — constitutional rights..</p> <p>Proceeding to disbar an attorney for fraud, deceit and malpractice in procuring his admission to practice in this State.</p> <p>Evidence examined, and held, that a certificate showing that he had been admitted to practice in a foreign State was forged and that he should be disbarred.</p> <p>There is no Statute of Limitations barring a proceeding under section 67 of the . Code of Civil Procedure to disbar an attorney.</p> <p>Mor has an attorney any constitutional right to hold an office obtained by fraud practiced upon the court that admitted him to practice.</p>

<p>Application to disbar an attorney.</p>

Appeal by the defendant, Eliot Horton, from so much of 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 11th day of January, 1908, upon the verdict of a jury, as. amended by an order entered on the 15th day of January, 1908, as awards any recovery against him, and also from an order entered in said cleik’s office on the 8th day of January, 1908, denying the said defendant’s motion for a new trial…

<p>Crime—removal of property with intent to defraud creditors — indictment -r- evidence.</p> <p>Where a crime may he committed by the doing of several acts in the alternative they all may he included in one count of air indictment and a convictipn had on proof of the commission of any one without proof of the commission of the others..</p> <p>An indictment which charges defendant with “the crime of removing property with intent to defraud a creditor" and states that, being indebted to certain "•persons; with intent to defraud them and to prevent the property from being' made liable for the .payment of his. debts or levied upon by execution, or warrant of attachment, he unlawfully removed it, charges but a single crime under . section 587 of the Penal Code.-</p> <p>It is not necessary to allege or prove that there was nó creditor who could have levied on the property by warrant of attachment or execution.</p> <p>Copies of financial statements made'by the1 defendant, the originals haying, been . lost, are admissible as hearing upon defendant’s intent.</p> <p>.Where defendant’s counsel in endeavoring to show that a sale of certain property of defendant by his receiver in bankruptcy was fraudulént, askeil'ón Cross-examination if the petition oh which, the sale was set aside did not contain . certain, statements, the petition may he put in evidence by the People. under . instructions that.the jury is to consider such-evidence only as, hearing =on the .' value of the property which passed to the receiver and the good faith of the sale. '■ ' '</p> <p>Evidence examined, and held, sufficient to sustain a conviction!</p>

<p>Bills and notes — forgery of signature of drawer and indorsement of payee — when check becomes payable to bearer — effect of acceptance and payment by drawee — payment not recoverable from holder in due course.</p> <p>If the drawee of a bill of exchange to which the'drawer’s name has been forged accepts and pays the same, he can’neither repudiate the'acceptance nor recover the money paid, since he is bound to know the drawer’s signature.</p> <p>Where the name of the drawer of a check is forged and the indorsement of the payee also forged, it is apparent that the forger never intended the payee to have an interest in the check, and he is, therefore, a fictitious or non-existent person within the meaning of subdivision 3 of section 28 of the negotiable Instruments Law, and by virtue of that section the check becomes payable to bearer, even though the payee named was an actual person.</p> <p>Hence, when a bank upon which such forged checks were drawn has accepted some before the forgery of the payee’s name and thereafter paid the same, together with other checks similarly forged; but not presented for acceptance before negotiation under the forged indorsement, it cannot recover the payments from an innocent holder in due course, for the checks were iu effect payable to bearer and the holder acquired good title.</p> <p>As between a bank and an innocent holder in due course the risk of paying out money upon the forged signature of a depositor is one which the' bank must assume.</p>

<p>Appeal by the defendant, William A. Milliken, from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of blew York ,on. the 4th 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 September, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Herminie T. Berwind, 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 21st day of April, 1908.

Appeal by. the defendant, Joseph J. Hughes,- 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 6th day of December, 1907, upon the verdict of a jury, and also from an order denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Fielding L. Marshall and others, as executors etc., and others, from certain parts of an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 12th day of March, 1908, as resettled by an order entered in said clerk’s office on the 23d day of March, 1908.

Appeal by the defendant, the Metropolitan Surety Oompany, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of blew York on the 12th day of ¡November, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of ¡November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Corporation—trust mortgage — redemption of bonds secured by prior mortgage.</p> <p>The plaintiff,- a corporation, executed to the defendant as trustee a mortgage to secure an issue Of the plaintiff’s bonds. The mortgage was made subject to a ■ prior mortgage of the plaintiff’s grantor also made to .the defendant as trustee,' securing the issue of outstanding bonds. The plaintiff’s mortgage provided that a certain percentage of its bonds were to be certified and delivered and the remaining percentage retained by the trustee to be certified and delivered only for the purpose of retiring a specific amount of the bonds of the plaintiff's grantor. This' provision likewise appeared on'the plaintiffs bonds.</p> <p>Held, that the plaintiff was entitled to a certification and delivery of its bonds on 'presenting bonds of its grantor to the defendant for redemption, whether its grantor’s bonds were purchased by means of a sinking fund, or by surplus earnings, or by the sale of bonds issued under the plaintiff’s mortgage.</p> <p>Houghton, J., dissented, with opinion.</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 ¡New York on the 27th day of Hay, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of Hay, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Moses I. Siegel and another, from certain parts of 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 27th day of January, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term, as amended by an order entered in said clerk’s office on the 11th day of February, 1908.

Appeal by the defendant, the Mutual Benefit Life Insurance Company, 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 4th day of February, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, George A. Smythe, 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 30th day of April, 1908, directing that the complaint be made more definite and certain.

Appeal by the defendant, Albert Mede, 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 5th day of March, 1908, reversing a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, in favor of the defendant, entered in the office of the clerk of said court on the 18th day of Hovember, 1907. '

Appeal by the plaintiff, Edward F. Murphy, as sole surviving executor, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 11th day of February, 1908, upon the report of a referee dismissing the complaint upon the merits.

Appeal 'by the plaintiffs, Thomas S. Napier and another, individually, 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 10th day of December, 1907, upon the dismissal of the complaint - by direction of the court at the close of the plaintiffs’ case upon a trial at the New York Trial Term.

Appeal by the defendant, Alexander S. Bacon, 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 18th day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the doth day of ■ May, 1907, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the American Bridge Company, from a judgment of the Supreme Court in favor of |he plaintiff, entered in the office of the clerk of the county of Hew York on fhe 17th day of December, 1907, upon the verdict of a jury, and also from an order enteréd in said clerk’# office on the 3d day of January, 1908, denying the defendant’s motion for a Hew trial made upon the minutes.

Appeal by the defendant, Burton S. Castle, 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 19th day of December, 1907, upon the verdict of á jury for. $10,000, and- also from an order entered in said clerk’s office on the 3d day of January, 1908, denying the defendant’s motion.for a new trial made upon the minutes. .

Appeal by the' defendants, the Provident Savings Life Assurance Society of Hew York and others, from, an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 18tli day of May, 1908, granting the plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiffs, Henry Wilber and another, from a judgment of the Supreme 'Court ip favor of the' defendants, 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 rendered after a trial at the.New York Trial Term.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of September, 1906, denying the defendant’s motion . to vacate an injunction pendente lite restraining the city from physically closing West One Hundred and Fifty-first street between the Boulevard and Twelfth avenue.

Appeal by the plaintiff, E. Porter Fraker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 14th day of Hovember, 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 Hew York Trial Term, and also from an order entered in said clerk’s office on the 16th day of Hovember, 1907, denying the plaintiff’s motion for a néw trial…

Appeal by the defendant, Philip S. Saitta, 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 22d 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 plaintiff, James J. Houlihan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 2d day of December, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendant, John H. Luhrs, from a judgment of ■the Court of Special Sessions of the first division of the city of Hew York, rendered on the 1st day of Hovember, 1907, convicting the defendant of unlawfully violating the Trade Mark Law, and also from two orders denying respectively the defendant’s motions for a new trial and in arrest of judgment.

<p>Court—judge of Special Sessions, city of New York—carrying on business in violation of charter..</p> <p>To bring a justice of the court of Special' Sessions of the city of New York within the prohibition of section 1416 of the city charter forbidding such justice to carry on any business, he must have such relation to the business as to impose upon him an obligation of responsibility to it — a responsibility for its management, an assumption of its control or an obligation to perform duties in relation to it.</p> <p>Such justice by becoming the vice-president of a. publishing corporation, but not charged with specific duties in relation to it, or actively engaged in the conduct of the business, or not responsible to the corporation or its stockholders for the conduct or management of the business and not actively interfering in any way in relation to it, is not guilty of a violation of the said section so as to justify his removal. '</p>

Appeal by the defendants, the Charles Francis Press 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 30th day of April,' 1908, granting a motion for an injunction pendente. Ufa

<p>Appeal by the plaintiff, Arthur Sariol, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡New York on the 31st day of October, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the ¡New York Trial Term, and also from an order entered in said clerk’s office on the 5th day of ¡November, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by Samuel H. Valentine, as. executor and trustee, etc., from certain portions of an order of the Supreme Court, made at the Mew York Special Term pul entered in the office of the clerk of the county of Mew York on the 23d day of January, 1907, confirming the report of commissioners of estimate and assessment herein.

Appeal by the. defendants, Mary J. Hall and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the.county of Hew York on the 31st day of December, 1907, upon the decision' of the court rendered after a trial at the Hew York Special Term in an action brought to construe a will.

Appeal by the defendants, Harry Raymond and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 11th day of April, 1906, upon the decision of the court rendered after a trial at the Hew York Trial Term, a jury having been waived.

Appeal by the Harlem Biver and Port Chester Bailroad 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 Hew York on the 7th day of February, 1907, confirming supplemental and amended report of commissioners of estimate and assessment.

Appeal by the defendant, William J. Stewart, from an exparte order of the Supreme Court directing the issuance of a warrant for the commitment of the defendant for contempt of court.

<p>Appeal by the plaintiff, Dominick Lobasco, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the" county of Eew York on the 14th day of January, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s, case at the Eew York Trial Term, and also 'from an -order entered in said clerk’s office on the 11th day of February, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Isidor Fluegelmau, 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 1st' day of June, 1908, granting an injunction pendente lite, restraining the defendants from transferring certain property.

Appeal by tbe defendant, tbe blew York Oity Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tbe county of blew York on tbe 31st day of January, 1908, Upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 31st day of January, 1908, denying tbe defendant’s motion for a new trial made upon'the minutes.

Appeal by the claimants, the Monona Company and others, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 6th day of January, 1908.

<p>Deeds — warranty — notice to grantor of pendency of action — sufficiency — effect of judgment.</p> <p>Where one party is obligated to indemnify another against some liability, and the party indemnified gives notice to the indemnitor of the commencement of an action against him to enforce the liability" and a reasonable opportunity to defend the same, then the indemnitor is concluded by the recovery of the judgment against the party idemnified. .</p> <p>' 'The notiee'need not be in any particular form, but must fully inform the party of the claim and that an action has been commenced for its enforcement and give him an-opportunity to shape the issues and' prepare for trial.</p> <p>A notice to one who has conveyed by a. full covenant warranty deed of.tha ' pendency of an action against his grantee who'has.conveyed by a similar deed, giyen only one day before the day set for the trial is insufficient, and the judgment in such action is not ■ conclusive on the grantor, but furnishes at most - only presumptive evidence of his liability, and any defense which' he could have originally' made had he. been a party to the action is available in an action against him by his grantee. ■ \ ■</p>

Appeal by the defendant, Joseph Bamsey, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1907, upon the verdict of á jury, and also from an order entered in said clerk’s office on the 10th day of January, 1908, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Thomas S. Napier, from an order of the Supreme Oourt, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 7th-day of Hay, 1907, setting aside the verdict of a jury in favor of the. plaintiff and granting a motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Henry de Vries, 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 16th day of January,. 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the. 8tli day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes. .

<p>Husband and wife.— contempt for failure to pay alimony—procedure — section 1773, Code Civil Procedure, governs—when court may vacate unauthorized order — payment under duress.</p> <p>Section 1773 of the Code of Civil Procedure, regulating proceedings to punish a defendant for contempt for failure to pay alimony, is exclusive, and a plaintiff should proceed thereunder rather than under section 2268, relating to contempts in general.</p> <p>It follows that a proceeding to punish for contempt for failure to pay alimony must originate on an order to show cause.</p> <p>Although a court order cannot be reviewed by a court of co-ordinate jurisdiction, yet an order punishing a defendant for contempt in failing to pay alimony made by a judge or court without authority and without notice, may be vacated by the court on notice.</p> <p>A defendant who pays alimony after having been arrested under a void order adjudging him in contempt pays under duress and is not estopped from moving to vacate the order.</p>

Appeal by the defendant, the Builders Construction 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 30th day of April, 1908.

Appeal by the defendants, The F. G. Brewster Company and others, from an order of the Supreme Court, made at the Sew York Special Term and entered in the office of the clerk of the county of Sew York on the 18th day of May, 1908, resettling an order entered on the 23d day of April, 1908, granting an inspection of the books of the defendant corporation.

Appeal by the defendants, De Witt C. Bouker, Jr., 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 New York on the 8th day of June, 1908, granting the plaintiff’s motion to amend an order and interlocutory judgment entered herein nunc fro tunc.

Appeal by the defendants, George B. Mulgrew and others, ss surviving executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 10th day of January, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of February, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Julia Krauss, 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 6th- day of June, 1908, modifying a decree of divorce by striking therefrom and annulling the provision with respect to the payment of alimony mmo fro fame as of the 21st day of July, 1906, and relieving the defendant from the payment of alimony from said 21st day of July, 1906, and directing the…

Appeal by the plaintiff, Julia Krauss, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1908, adjudging the defendant guilty of contempt for failure to pay alimony.

Appeal by the defendant, William FT. Shannon, individually, from certain parts of an interlocutory judgment of the Supreme Court in-favor df the plaintiffs, entered in the office of the clerk of the county of Mew York on the 21st day of February, 1908, upon the decision of the court rendered after a trial at the Mew York Special Term.

<p>Attorney at law disbarred.</p> <p>Proceeding to disbar an attorney at law for paying moneys to the assistant clerk of the court for his aid in procuring the release of his clients from their .obligation as bail and the discharge without trial of persons charged with crime. Evidence examined, and held, that the attorney should be disbarred.</p>

Appeal by the defendant, The Solvay Process 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 14th day of February, 1908, upon the verdict of a jury for $7,948, and also from an order entered in said clerk’s office on the 3d day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes. / The action was commenced on the 10th day of April, 1907, to recover…

<p>Appeál by the defendant, James E. Holden, from a judgment of the County Court of Cattaraugus county, rendered on the 18th day of January, 1908, convicting him of the crime of burglary in the third degree and of grand larceny in the second degree, and also from an order entered in the office of the clerk of the county of Cattaraugus on the 30th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was commenced on the 5th day of December,. 1907, by the finding of an indictment of the grand jury of Cattaraugus county, 1ST. Y., containing two counts, the first accusing the defendant of the crime of burglary in the third degree, and the second accusing him of the crime of grand larceny in the second degree. The defendant was arraigned in the Supreme Court on the 9th day of December, 1907, where he pleaded “ not guilty,” and on that day an order was made in that court .sending the indictment to the County Court of Cattaraugus county for -trial. The defendant was tried, at a term of said County Court commencing on the 13th day of January, 1908. The jury rendered a verdict on the 18th'day of January, 1908, convicting the defendant as charged in the indictment, and he was thereupon sentenced by the court tó be imprisoned in Auburn State prison at hard labor for a term of not more than four years and six months and not .less than three years and three months. A motion for a hew trial upon the minutes of the coui’t was made, which was denied. From the judgment of conviction and the order denying the motion for a new trial so made this appeal is "taken.</p>

<p>Landlord-and tenant — oil lease — abandonment by tenant — covenant to defend lease.</p> <p>Where an oil lease was for the term of fifteen years, or “ as long as oil is found in paying quantities,” and obligated the lessee to drill to a certain depth, which the lessee did, but finding no oil took away the machinery necessary for the prosecution of the work and did nothing more for eleven years, the lease as a matter of law is terminated, and it is error to submit that question to the jury.</p> <p>A subsequent lessee who has covenanted to bear the expense of any suit to defend the lease, the lessor to repay the consideration for the lease in case there is any prior outstanding lease, cannot recover the consideration on the ground that the first lease is still valid.</p> <p>The fact that the first lessee subsequent to the execution of the second lease entered the premises and drilled for oil does not show that there was no abandonment of the first lease. The second lessee, not the lessor, was required to defend the invasion by the first lessee..</p> <p>Oil leases stand on a basis different from other leasehold agreements, in that if oil be not found no estate vests in the lessee.</p> <p>The rule that forfeiture or abandonment is not looked upon with favor is not . applicable to oil leases.</p> <p>Where the second lessee, having paid the firát month’s rent, neglected to pay the next two installments and made no attempt to bore for oil, he manifested a ■ purpose to abandon the project and his lease expired, since time was the controlling factor.</p> <p>McLennan,"P. J., and Kbuse, J., dissented, with opinion.</p>

Appeal, by the plaintiff, The Seneca Nation of Indians, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 12th day of December, 1906, upon the verdict of a jury,' rendered by direction of the court after a trial at the Erie Trial Term, dismissing the complaint upon the merits and adjudging the defendant to be the owner in fee of the lands in controversy subject to the plaintiff’s right of occupancy.

<p>Contract — consideration — executors and administrators — evidence insufficient to establish promise to pay money by one since deceased — Statute of Limitations.</p> <p>Where a wife lends money to her husband as part of the purchase price of a house bought by him, there is a good consideration for his agreement to repay a portion of it to a third party designated by the wife.</p> <p>Where the eSect of an alleged oral agreement made by a decedent prior to his . death will, if carried out, divert his property from its natural channels, the courts before upholding the agreement will require it to be established by clear and convincing evidence.</p> <p>Evidence in an action brought to recover on an alleged parol agreement made by one since deceased, whereby he promised to pay money to the plaintiff, examined, and held, insufficient to sustain a recovery.1</p> <p>A recovery in an action of the nature aforesaid must be based on evidence of a higher nature than that which would warrant a recovery in other actions.</p> <p>Where the alleged' oral contract is sought to be established by witnesses who are related to some of the interested parties and who testify to statements made by the decedent nearly thirty years before the trial, the evidence will be closely scrutinized in order that fraud, or imposition, or imperfect recollection may not prevail and thwart the wishes of the decedent. ' ,</p> <p>Where in such action it appears that the plaintiff at the time of the alleged promise was an infant of four years, and on reaching her majority did not assert the claim for many years so that it would have been barred in the absence of other proof by the Statute of Limitations, the mere evidence of witnesses interested in the plaintiff’s behalf that the decedent promised to make the payment only when he ceased to be financially embarrassed and was able to pay, is insufficient to show, that the running, of the statute was postponed, even though the defendant did not prove that the decedent could have paid the debt without difficulty.</p>

Appeal by the defendant, The Pratt Chuck Company, from a judgment, of the Supreme Court' in- favor of the plaintiff, entered in the office of the clerk of the county.of Herkimer on.the 8th day of July, 1907, upon the verdict of a jury for $1,500, and also from two orders entered in said clerk’s office- on the 12th and i8th days' of June, 1907, respectively, denying the defendant’s motions for a new trial made upon the minutes.

Appeal by the plaintiff, Margaret Harrison, as administratrix, etc., from a judgment of the.Supreme Court in. favor of the defendant, entered in the office of the clerk of the county of Onondaga on, the 3d day of June, 1907, upon an order entered in said clerk’s office on the 29tli day of May, 1907, granting- the defendant’s motion for a nonsuit, the jury having theretofore rendered a verdict for $6,500 in favor of the plaintiff, and also from the said order directing the…

Appeal by the plaintiffs, Julius Ullman and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 28th day of January,. 1908, upon the decision of the court, rendered after a trial at. the Erie Special Term, overruling the-plaintiffs’ demurrer to the answer.

Appeal by the defendant, Owen J. Oonghlin, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk .of said county on the 19th day of February, 1908, upon an order entered in said clerk’s office on the 19th day of February, 1908, affirming a final order of the Municipal Court of the city of Syracuse, made in summary proceedings awarding the plaintiff the possession of the premises described in the petition, and…

Appeal by the defendant, The City of Tonawanda, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 16th day of December, 1907, upon the verdict of a jury for $1,480, and also from an order entered in said clerk’s office on the 16th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

. .Appeal by the defendant, The Mutual Life Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Chautauqua on the 17th day of October, 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 18th day of October, 1907, denying the defendant’s motion for a new trial made upon the minutes,

Appeal by the plaintiff, W. Caryl Ely, from an order of the Supreme Court, made at the Erie Special Term and entered ih the office of the clerk of the county of Erie on. the 24th day of January, 1908, vacating a prior order requiring the defendant Clarence W. Cady to appear before a referee for examination for the purpose of enabling the plaintiff to frame his complaint.

Appeal by the defendant, Frank Randazzo, from a judgment of the County Court of Monroe county in favor of the plaintiff, rendered on the 5th day of February, ,1907, convicting the defendant of the crime of assault in the second degree.

<p>Master and servant—injury by- fall of flour sacks—safe place to work— failure to give warning — excessive damages.</p> <p>It is the duty of a master to furnish a reasonably safe place to work, which duty cannot be delegated to a superintendent or foreman..</p> <p>Where a servant was injured by the fall of a pile of sacks of flour which had been placed in the warehouse before he came to work, and the master’s foreman knowing it to be dangerous failed to warn him, the questions of negligence and contributory negligence are for the jury.</p> <p>Under the circumstances disclosed a verdict for §8,200 is excessive and should - be-reduced to §2,500.</p> <p>Spring and Kruse, JJ., dissented in part.</p>

<p>Master and' servant — negligence — injury by falling spindle — Contributory negligence.</p> <p>The plaintiff, a competent workman employed in defendant’s foundry for many years, was injured by the fall of' a spindle. It was customary to lean the spindles against a certain post. An iron guard formerly bolted to this post to keep the spindles from falling had been removed from the post by direction ■ of the foreman five or six weeks before. The plaintiff, knowing that the • guard had been removed, leaned the spindle "against the post and signaled the craneman to bring the crane, which he attached to the casting on which he had been working. He then directed the craneman to go ahead. He himself went down the foundry with the casting and directed the movements of the crane. The casting being carried near the post against which the spindles rested, one of them was knocked down injuring the plaintiff.</p> <p>Held, that a finding that the plaintiff was free from contributory negligence was against the weight of evidence. ■</p>

Motion.by the- plaintiffs, Frank Sabetto and another, for a new trial upon á case containing exceptions, ordered to .be heard at. the Appellate Division in the first instance upon a nonsuit granted by the court at the close of the plaintiffs’ case upon a trial at the Cayuga Trial Term in January, 1908.

Motion by the plaintiff, Sebastiona Dangelo, as administratrix, etc., for a new trial upon a case containing exceptions, ordered to be heard, at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial. at the Erie Trial Term in May, 1907.

<p>Negligence — injury at railroad crossing — contributory negligence — section 53, Railroad Lawright to go around a train blocking a •crossing.</p> <p>One who goes upon a railroad track in an attempt to pass around a standing train which has blocked the crossing for more than five minutes is not a trespasser, even though he goes outside the bounds of the street, if it is reasonably necessary for him to do so.</p> <p>Section 53 of the Railroad Law does not take away the common-law right of a person to go around cars which are unreasonably obstructing a street crossing.</p> <p>Where a train running backward at the rate of thirty miles ah hour, on a dark night, approaches a crossing which the engineer knows to be used by a large number of people at that hour and to be blocked by a standing train, without any warning other than a single red lantern showing on the end of the train, and injures a pedestrian, a jury is warranted in finding the railroad grossly negligent.</p> <p>A railroad company may not unlawfully obstruct a public street and prevent persons having occasion to pass over the crossing from going around cars, even outside of the street limits, if it is reasonably necessary for such persons to do so.</p> <p>A man. with normal faculties who goes 75 to 150 feet away from a crossing along a railroad track to pass around a train which is blocking the crossing and is injured by another train backing down on him, is not guilty of contributory negligence as a matter of law.</p> <p>McLennan, P. J., and Spring, J., dissented.</p>

<p>Appeal by the defendant, The Lake Shore and Michigan Southern 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 Erie on the 29th day of November, 1907, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 2d day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the petitioner, Andrew B. Gilfillan, from- an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 17th day of March, 1908, denying the petitioner’s application for a peremptory or alternative writ of mandamus.</p>

<p>Appeal by the defendant, The Board of Assessors of the City of Buffalo, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 14th day of April, 1908, denying the defendant’s motion to dismiss, quash or supersede a writ of certiorari theretofore issued herein.</p>

<p>Beal property — covenants not to obstruct light—when appurtenant to land.</p> <p>A covenant in a deed of a nine-foot strip of land that the grantee and his heirs or assigns will not at any time “obstruct the windows or'lights” of the grantor by building or placing any structure on the parcel conveyed, is not personal to the grantor, hut runs with the land.</p> <p>Such a covenant will be enforced against subsequent owners of the nine-foot strip, on the suit of the subsequent owners of the adjoining land, even though the neighborhood has changed from residential to business, where the easement has been recognized in nearly all subsequent deeds of the nine-foot strip, the windows which the covenant was designed to protect are in the same place and condition as when the covenant was made and the present owners use • the building as a place of residence, although it has become a part of a hotel.</p> <p>Robson, J., dissented.</p>

Appeal by'' the defendant, The Pratt & Letchworth 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 5th day of February, 1908, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the Jd day of . March, 1908,' denying th¿ defendant’s motion for a new trial made upon the minutes.

<p>Railroad — use of public street for roadbed.</p> <p>The mere fact that it' is more convenient and less expensive for a railroad to use a public street as its roadbed than to take some other route is not of itself sufficient to warrant an order granting permission to use the street.</p> <p>Record in a proceeding to obtain permission to construct a railroad along a public street examined, and held, not to show the necessity or propriety of constructing a railroad along the street.</p> <p>Williams, J., dissented.</p>

Appeal by the defendant, Arthur S. Hamilton, from a judgment -of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of'Monroe on the 4th day of April, 1908, upon the decision of the court rendered after a trial at the Monroe Trial Term,, a jury having'been waived. ■ The action is brought to recover the quarterly installments of $250 each, accruing during the six years prior to the commencement . of this action On a written agreement…

Appeal by the defendant, The City of Bochester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office. of the clerk of the county of Monroe on the 31st day of December, 1907, upon the verdict of a jury, and also from an order entered in. said clerk’s office on the 31st day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the defendant, The. Hew York Central and Hudson Biver-Bail road 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 Monroe on the 14tli day of April, 1908, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling the said defendant’s demurrer to the complaint.

-Appeal by the defendant, the Imperial Engine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 12th day of March, 1907, upon the verdict of a jury for $1,208, and also from an order entered in said clerk’s office on the 12th day of March, 1907, denying the defendant’s motion for a new trial made upon the_ minutes.

Appeal by the defendant, The Village of Silver Creek, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 3d day of January, 1908, upon the decision of the court rendered after a trial at the Chautauqua Special Term.

Appeal by the defendant, AdeTbert D; Gail, 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 6tli day of February, 1908, upon the decisión of the court, rendered after a trial at the Erie Special Term, reversing a judgment of the Municipal Court of the city of Buffalo in favor of the defendant, rendered on the 7th day of December, 1907, and granting a new trial.

Appeal by the defendant from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 39th day of April, 1908, denying the defendant’s motion for a bill of particulars.

<p>Principal and agent — action for brokers fees — defense of fraud in that broker was real purchaser — charge — immaterial errors — weight of evidence.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 5th day of March, 1908, in favor of the plaintiff; also from an order entered in the same office on the 9th day of March, 1908, denying the defendant’s motion for a new trial.

<p>Negligence—servant in elevator shaft injured by descent of elevator — evidence — proof of previous accident, admissible only to show notice of danger — cases discussed —practice—effect offailure to appeal from order denying motion for a new trial.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York in favor of the defendant, rendered upon a decision of a justice after .a trial without a jury. The action is by the administrator' of William H. Huestis to recover $500 on a policy of insurance for that amount cm the life of the deceased, issued by the Prudential Insurance Company. The company had Matthew Wood, as receiver of Prank Henderson, impleaded, and paid the money into court. The claim of Wood was that the deceased assigned the policy to Henderson. Judgment was rendered for the impleaded defendant.</p>

<p>Contract — action for commissions for selling carriage —failure of proof.</p>

<p>Habeas carpus—punishment for disobedience of writ — what constitutes disobedience —jurisdiction to punish — review by certiorari.</p>

<p>Certiorari &emdash; dismissal-of building» inspector by BtateArcliüectaffi/)'med. W' 1</p>

<p>Lien—foreclosure of mechanic's lien — pleading — complaint alleging consent of landlord to repairs by tenant—when money judgment against landlord not authorized— appeal from Gity Court of Cortland—jurisdiction.</p>

<p>.Appeal from an order, entered on the 4th day of May, 1908, granting a bill of particulars. -</p>

<p>Certiorari to review dismissal of relator.</p>

<p>Monopoly—contract of publishers’ association to maintain price of copyrighted and uncopyrighted boohs — Anti-Monopoly act—copright decisions construed -— resale.</p>

Y-iA-ppeaLfroiti part óf .a judgment of-the..Supreme Gburt, entered .on. the.:17th day iofi.February,! 1908.. ;. . ¡ .. .. . '. In j.. . in .-; ...’ - - ..-.i-.-.i .'Judgment affirmed;• with-costs.. .No-opinion., -.Present r-rJngraham,MclLatigbj lin;■ Clarke;'Houghton-and--Seótt,,,JJ,:; HoUghtonX-,'dissenting..-’' v.)

<p>Default — order opening default reversed —» unsatisfactory excuse action for-, goods sold and delivered.</p>

Appeal •frb'm'dn ‘order of'the. Supreme'Court, entered in'thb'ChAuiilucfda county ‘cleric's’ 'Office’ FébfúaVy :5,1908,- dismissing the' petition'to' revoke‘'án‘3 ' cancel a liquor tax certificate. «..

Appeal from-'a judgment óf the Supreme Court, - entéréd in!the Herkimer co,unty'clerk’s office December 7¡1907, üpori thg'Vérdiet’of á júry, árid'also' from' an'ordep entered December 30,1907, denying a motion for a new trial upon the 1 minutes;*' 1 A1 : ' ; ' ' '■ >' 1 ' ■

<p>Partition &emdash; title &emdash;evidence insufficient to establish-notice of sale&emdash;possession as notice of claim of title. ■</p>