Volume 128 — New York Appellate Division Reports

<p>Election Law — appointment of election officers — Election Law and Primary Law construed — recognition of faction by State convention — court — power to construe Primary Law.</p> <p>The Legislature. has power to provide a system regulating the machinery of a political party.</p> <p>Section 12 of the Election Law, providing that if in any city more than one list of election officers be submitted in the name or on behalf of the same political party only that list can be accepted which is authenticated by the proper officer or officers of the faction or section of such party, which was “organized” as regular by the last preceding State convention of such party,.must be construed in the light of section 9 of the Primary Law providing that each county or city committee and the officers thereof shall have all the power and authority and shall perform all the duties in respect to the nominations of officers to serve at general elections conferred upon the general committee, the county committee, the city committee, the executive committee or officers thereof given to any party in such city or county by section 12 of the Election Law. Such construction must be pláced upon said statutes, as shall give effect to the intention of the Legislature. . Although said section 12 of the Election Law as originally enacted in 1896 contained the proviso that if more than one list of election officers be submitted in the name of the same political party only that list can be accepted which is authenticated by the proper officers of the faction “ which was organized as regular by the last preceding State convention of such party,” and although said proviso was permitted to remain in the subsequent amendments to said section,' nevertheless on the enactment of the Primary Law in 1898, which expressly repealed all acts or parts of acts inconsistent therewith, the said proviso of section 12 of the Election Law was repealed, as otherwise the Primary Law would have been rendered nugatory.</p> <p>Hence, a “ faction or section ” of a political party cannot file a list of election officers merely because it has been recognized as regular by the State convention, if in fact the list was not filed by the chairman of any executive committee of . a county committee constituted or attempted to be constituted by election at the primary election on the annual primary day.</p> <p>The recognition of a faction as regular by the State convention does not ipso facto absolve that body from compliance with the Primary Law in constituting its committees. A faction stamped as regular has no prerogative above the law, and must be regular in its observations of the law as well as regular in its recognition by the State convention.</p> <p>Where an alleged committee of a faction of a political party was not voted for and made no contest for election as county committeemen at the previous primaries, no “ faction, group or section ” within the meaning of the Election Law is created or exists for the purpose of presenting the matter to the State convention to give it jurisdiction.</p> <p>The court has jurisdiction to construe and enforce the Primary Election Law at the suit of any party aggrieved by its operation.</p> <p>Gaynor, J., dissented in part, with opinion.</p>

Appeal by George Smith and others from, an order of the County Court of Washington county, entered in the office of the Clerk of said county on the 31st day of October, 1907, confirming the report of commissioners appointed in the proceeding to lay out a highway and denying a motion to vacate their decision.

Appeal, by the defendant, the Schenectady 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 Schenectady on the, 14th day of October, 1907, upon the verdict of' a''jury for $5,000, and also from an order entered in said clerk’s office on the 11th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, the Jamaica Water Supply Company, from a final 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 9th day of April, 1908.

Appeal by the defendant, Thomas S. Strong, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Delaware on the 13th day of August,1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Delaware and Hudson Company, ' from a judgment of the Supreme Court in favor of the plaintiff, entered in the office óf the clerk of the county of Washington on the 15th day of January, 1908, upon the verdict of a jury for $1,000, 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.</p> <p>The action was commenced to recover damages for personal injuries sustained by the explosion of a torpedo found upon the tracks of the defendant’s railroad. The complaint' alleges that for a great many years prior to the accident the defendant’s railroad, between Dunham’s Basin- and Smith’s Basin, had been used as a walk or path with the acquiescence of the defendant; that the defendant had for some time used, for signaling the engineers of trains, torpedoes or dynamite cartridges so made that they could be fastened to the rail and exploded when 'the wheels of an engine passed over them; that the plaintiff found a torpedo as he was walking along the track; that he was curious to know what it was, and in making an examination it exploded and blew out one of his eyes.</p> <p>The only negligence alleged against the defendant was that it permitted the. torpedo tó be on its railroad tracks without warning as to its nature, knowing that the tracks weye used by pedestrians.</p> <p>The proof showed that on the 16th day of September, 1906, the plaintiff, a boy of sixteen, years of age, and his brother, who was twenty years old, were walking upon the tracks of the defendant’s railroad, about a mile north of' Dunham’s Basin, when the brother saw a torpedo on the inside of the track between the ties. He testified that the plaintiff was a little ahead of him; that “ I picked it up and I fussed with it a little while before I said anything, and tore the two clasps off of it. Then I went over into the middle of the track ivhere he was walking and asked him what it was; if he ever saw one of them before. He said, ‘ No. * * * What’s on the inside of it ? ’ So he got down on the track, or went down into the ditch first for a stone to break it open. Then he took it up on the track again and got down over the track and commenced to pound on the tin. * * * I was about twenty paces ahead of him, walking along, * * * [when] the thing exploded.”</p> <p>The plaintiff testified that he did not see his brother pick up the torpedo and saw none until his brother handed it to him; that he tried to open it, threw it down on the ground, “ took it up edgeways and hit it once, but it did not seem to open it, so I laid it down flat and hit it a couple of times and that exploded it.”</p> <p>The jury rendered a verdict for the plaintiff and the defendant appealed to this court.</p>

Appeal by the plaintiff, the Shepard & Morse Lumber Company, 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 Franklin on the 5th day of May, 1905, upon the' report of a referee dismissing the complaint as to all the defendants other than John Hurd, and awarding costs to the defendant, the Franklin Trust Company, except so much thereof as awarded judgment in favor of the plaintiff against the said…

•Appeal by the defendant, the Natural Carbonic Gas Company,; from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 1st day of September, 1908, granting a temporary injunction restraining the defendant from the commission or continuance of certain wrongful acts in violation of the provisions of chapter 429 of the Laws of. 1908.

Appeals in six separate actions by the respective defendants therein from respective orders 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 5th day of September, 1908, granting injunctions pendente lite restraining the several defendants from' accelerating the natural flow or producing an unnatural flow of certain mineral waters, in violation of chapter 429 of the Laws'of 1908.

Certiorari 'issued out of the Supreme Court and attested on the 8th day of May, 1907, directed to the Common Council and the City Clerk of the City of Gloversville, commanding them to certify and return to the office of the clerk of the Appellate Division for the Third Department in the city of Albany all .and singular the proceedings had in taking the lands of the relator for highway purposes.

Appeal by the defendant, Elizabeth E. Benjamin, as administratrix, etc., 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 Cortland on the 5th day of March, 1901, denying defendant’s motion to stay all proceedings in this action, and granting plain till:’s motion to stay a proceeding instituted in the Surrogate’s Court of Chenango county to sell certain real estate of defendants intestate for the…

Appeal by Andrew Gifford, as sole commissioner of highways of the town of Rotterdam, and others, -from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Schenectady on the 15th day of July, 1907, appointing a referee to ascertain and report the facts in connection with the building of a bridge across the Mohawk river connecting the highways in ihe towns of Rotterdam and Glenville, and also from an order…

Appeal by the defendant, -Standard Light, Heat and Power Company, of Unadilla, N. Y., .from -a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 8th day of January, 1908, upon the verdict of a jury' for $2,400, and also from an order entered in said clerk’s office on the 7th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — amended complaint stating new version of accident — railroad— injury to passenger on surface car.</p> <p>Although the original complaint in an action to recover for personal injuries alleged that they were caused by the sudden starting of a surface car before the plaintiff had an opportunity to alight, and the amended complaint charged that the plaintiff was pushed or dragged from the car by the conductor, the variance of the two versions of the accident is not such as to make it the duty of the court to set aside a verdict for the plaintiff where it appears that the original complaint was verified when the plaintiff was in the hospital where his leg had been amputated, that he could not read, that only part of the complaint was read to him, and that he did not know of the allegations respecting the-manner of the accident.</p> <p>Evidence in an action to recover for personal injuries to [a passenger who was pushed from the running board of a surface car by the conductor examined,. and held, that a verdict for the plaintiff was not against the weight of evidence.</p>

. Appeal by the defendant, Vechten Waring, 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 27th day of January, 1908, 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 27th day of .January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 12th day of March, 1908, directed to Chester A. Painter, supervisor, and others, composing the town board of the town of Oyster Bay, etc., commanding them to certify and return to the office of the clerk of the county of Nassau all and singular their proceedings had in relation to the audit of an account presented by the relator for labor and materials furnished.

Appeal by the plaintiff, Rosa Taranto, 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 21st day of November, 1906-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 9th day of January, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Antonio Taranto, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the cleric of the county of Kings on the 21st day of November, 1906, 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 9th day of January, 1906, denying the plaintiff’s motion for a new trial, made, upon the minutes.

<p>Appeal by the defendant, Rudolph M. Haan, 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 23d 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 22d day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the York Realty 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 October, 1907, upon the report of a referee.

Appeal by the defendant, The Argyle 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 12th day of December, 1906, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 21st day. of December, 1906, one denying the defendant’s motion fora new trial made upon the minutes, and the other granting the plaintiff an extra allowance.

<p>Master and servant — injury to employee of contractor repairing tugboat— liability of owner — evidence raising issue as to ownership — proximate cause—verdict not excessive.</p> <p>Where a tugboat upon which the plaintiff was injured bore upon its smokestack the insignia of the defendant railroad, being the same design displayed by the defendant upon its office windows, train schedules, stationery, etc., there is ■evidence sufficient to entitle the jury to say whether the boat belonged to. the defendant, although the latter has put in evidence a bill of . sale of a boat to another corporation where the description therein does not conclusively show that the boat sold was the one upon which the plaintiff was injured.</p> <p>Although the letters “L. V.” are equally consistent with" the ownership of the ' defendant Lehigh Valley Railroad-or the Lehigh Valley Transportation Com- ' pany, to which the defendant claims to have sold the boat, there is no presumption that one corporation will use the same insignia as another and an issue is presented for the jury, especially where the defendant, knowing all the facts, fails to disclose them.</p> <p>Under such evidence it is not error to leave it to the jury to say whether the defendant railroad was responsible for the control of the boat while under repair.</p> <p>Although the boat was being repaired by another corporation, an .employee of the latter was not a mere licensee, so that the owner owes him no higher duty than to refrain from wantonly injuring him, but on the contrary the employee was on the boat on the irivitation of the owner, and it owed him the duty of reasonable care.</p> <p>When it appears that in a narrow passage on the side of the. cabin of the boat the defendant maintained a manhole covered with a defective covering liable to turn over when stepped upon, and that the plaintiff, while under the direction of his foreman and on a lawful errand, stepped upon the same and was injured, the owner’s negligence is for the jury.</p> <p>Where it appears that the manhole was covered with an open grating, defective in that one of the lugs was worn or broken so that the grating could turn over if stepped upon, the defect in the grating is the proximate cause of the accident rather than the absence of a solid covering which the 'testimony shows was designed to be used at sea for the purpose of preventing water from flowing into the manhole.</p> <p>Moreover, if the removal of this solid cover be considered to he the proximate cause of the accident, the defendant may be found, negligent in permitting it to remain off, where it appears that the covering has been removed for at least, four days.</p> <p>Where the plaintiff fell astride the grating and was so injured as to demand surgical aid indefinitely, and there is evidence that the injury will be permanent in some respects, a verdict of §7,500 is not excessive although there be no evidence of permanent impairment of earning capacity.</p>

<p>Real property — contract to sell by trustee of partnership holding legal title — specific performance — rights of partnership.</p> <p>A person holding the sole recorded legal title to lands, but who in fact holds as trustee for a partnership, may authorize a member of the firm to enter into a contract of sale as her attorney in fact.</p> <p>The partnership has a right to an accounting by the trustee of the proceeds of the contract; but having placed it within the power of the trustee to deal with the property as owner, the partners are not in a position to complain of a decree requiring specific performance of the contract of sale and foreclosing their interest in the lands as against the vendee.</p>

<p>Appeal by the defendant, William Knipe, 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 April, 1907, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 9th day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Crime—subornation of perjury—variance between indictment and proof.</p> <p>Where an indictment charges subornation of perjury solely for inducing the plaintiff in a civil action to swear falsely that she never saw a certain person between specific dates, a judgment of conviction will be reversed where the evidence shows that the witness did not so testify, but on the cpntrary stated that she saw said person on three occasions between said dates, although she actually committed other perjuries and plead guilty when indicted.</p>

<p>Appeal by the defendant, Solomon Bonewur, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff.</p>

<p>Eminent domain — construction of rapid transit subway in city of New York — rights of abutting owners to compensation—statutes — constitutional construction preferred — when municipality building subway acts as private corporation — damages to property subsequent to title in city — measure of damages — counsel fees and expenses.</p> <p>A thing within the intention of a statute is within the statute, even though an exact literal construction would exclude it. Thus, as the Rapid Transit Act of the city of New York provides for the determination of property rights affected, it indicates an intention' by the Legislature to fulfill the constitutional requirement as to d-ue compensation.</p> <p>On the amendment of said Rapid Transit Act so as to provide for the construction of the subway by the municipality, the governmental powers of the city were not enlarged; but for the purpose of constructing the underground road the city became a railroad corporation, having no more rights in the highway and public places of the city than would belong to any other corporation and with no higher right to take .private property. In constructing the subway the municipality is regarded, quo ad hdo, as a private corporation.</p> <p>As it has been decided that railroads, both surface and general, constitute an added burden upon the streets of a municipiility for which the owners of the fee must be compensated, the Legislature is presumed to have known that rule, and that an abutting owner by surrendering a public easement in the street did not give to the municipality a right to undermine his premises and destroy the same by the construction of a subway.</p> <p>Thus, although individuals owning the fee of a public street have given up a public right of way thereover, the Legislature cannot authorize the construction of a subway under said street involving large consequential damage to abutting owners without payment of just compensation, for such use was not contemplated at the time of the original grant or condemnation of the.public way.' .</p> <p>Irrespective of any question as to the right of abutting owners to an easement in the sub-adjacent support of their lands by the street, where they are either the owners of the fee, or the fee is in a. third party, the city of Hew York, by constructing á subway as a private corporation, cannot take away the support from adjacent foundations without just compensation.</p> <p>It is presumed that the Legislature intended to act within its constitutional limitations, and where one of two constructions, each equally reasonable, will .render an enactment valid, that in harmony with the Constitution will be given.</p> <p>Although section 47 of the Rapid Transit Act provides that title shall 'vest in the city upon the filing of oaths of the commissioners, the rights of abutting owners to compensation were not intended to be determined solely by the condition of the property at that moment; and injury to abutting property . accruing after that date should be taken into consideration in awarding damages.</p> <p>The rule of damages in‘suits in equity and in proceedings to condemn lands by eminent domain is the same.</p> <p>Where the city of New York, acting asa private corporation, constructs a railroad under the city streets, an abutting owner vested with the fee is entitled to the full value of the property actually taken without deduction, and also to fair and just compensation for the injury done to the remainder, having in mind the market value of the property before and after the taking.</p> <p>In assessing such damage the commissioners should consider everything which, if known to a proposed purchaser at the time, the title vested in the city, would tend to increase or diminish the market value of the .premises remaining after the taking of the property in the street. The time during which the premises were rendered untenantable should be considered; and this if respect-' ive of any question of negligence .in construction. The award should include damages resulting from the necessary construction of shafts in the street so far as they diminished the rental value of the property during the time of construction.</p> <p>The. same rules apply to a claimant - not owning the fee, if the same be in a third person and not in the city of New York, for as against the city as a private ' corporation he must be deemed to have an easement of sub-adjacent support which cannot be taken away without compensation.</p> <p>Under said Rapid Transit Act, as amended, abutting owners may be allowed costs, counsel fees, extra allowances, etc., for where a person is forced into court by the exercise of the power of eminent domain, he is entitled to just compensation for the necessary expense to which he is put.</p>

Appeal by the defendants, Jean I. Charlouis 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 Kings on the 8th day of January, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendants’ demurrer to the amended complaint.

Appeal by the'plaintiff, William C. Osborne, 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 21st day of April, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 31st day of March, 1908.

•Appeal by the plaintiff, Louis Dehoust, from a judgment of the Municipal Court of the city of New York, borough of Bróoklyn, in favor of the defendant, rendered on the 27th day of February, 1908.

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Queéns, in favor of the plaintiff, rendered on the 7th day of February, 1908, after a trial before the court and a jury.

<p>Appeal by the plaintiff, Frederick W. Ersfeld, 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 28th day of March, 1907, upon the dismissal of the complaint by direction of the court upon the pleadings and the plaintiff’s opening at the Kings County Trial Term.</p>

Appeal by the plaintiff, the Beakes Dairy Company, from a judgment of the Supreme Court in favor of the defendant, William G. Berns, entered in the office of the clerk of the county of Kings on the 28th day of April, 1908, upon the decision of the court rendered after a trial 'at the Kings County Special Term.

Appeal by the plaintiff, Mary C. Bogart, 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 Richmond, on the 30th day of January, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Richmond Trial Term. . The action was for damages for the death of the plaintiff’s intestate by the alleged negligence of the defendant.

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of October, 1907, upon the verdict of a jury for $20,000, and also from an order entered in' said clerk’s office on the 21st day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edmund Clark, from a judgment of the County Court .of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 17th day of April, 1908, upon the decision of the court rendered after a trial before the court without a jury. This suit is by the mortgagee to foreclose a bond and mortgage for principal and interest.

Appeal by the defendants, J. Joseph Kindred and others, from an interlocutory. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 17th day of March, 1907, upon an order made at the Queens County Special Term and entered in said clerk’s office on the 16th day of March, 1908, overruling the said defendants’ demurrer to the complaint, and also (as stated in the notice of appeal) from the said order upon…

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 Kings on the 2d day of April, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the. appellant to execute and . deliver to the plaintiff a deed of certain premises.

Appeal by John L. Klages, a property owner, from an order of the Supreme .Court, made at the Queens .County Special Term and entered in the office of the clerk of the county of Queens on the 29th day of January, 1907, confirming the supplemental report of commissioners of estimate and appraisal herein, in so .far as said order affects the parcel of land known as Damage Parcel No. 8.

Appeal by the defendant, Theodore A. Bingham, as police commissioner, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on.the 18th day of March, 1908, granting the relator’s motion for an alternative writ of mandamus requiring the police commissioner of the city of New York to restore the relator to his place as captain of police, from which he was removed, on the ground that such…

. Appeal by the defendant, The Wove Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of E'assau on the 15th day of February, 1908, upon the verdict of a. jury for $6,500, and also from an order entered in said clerk’s office on the 14th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes. The action is for damages.for negligence.

Appeal by the defendants, Harry Topp 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 King's on the 10th day. of July, 1907, upon the decision of the court rendered - after .a trial at the Kings' County Special Term. Suit by the purchaser for specific performance o*f a contract to convey real property. The contract was to convey a plot 10 feet front on a city street,, with houses, on it.

Appeal by the defendant, the Harden Brothers Trucking 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 22d day of May, 1908,. upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant’s demurrer to the amended complaint.

Appeal by the plaintiff, John Masal, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the' clerk of the county of Queens on the 2d day of December,. 1907, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from' an order bearing date the 15th day of November, 1907, and entered in said clérlc’s office, permitting a substitution of attorneys for one of the-defendants. .…

Appeal by the defendant, The Stone Valley Distilling 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 26th day of February, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes. This is an action for damages for breach of a contract of sale of goods.

Appeal by the defendants, Morris Neinken and another, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of March, 1908, 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 13th day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. The defendant has contracted to purchase of the plaintiff certain lots of real estate and the question is whether the plaintiff can give good title.

<p>Appeal after default — foreclosure — order that one parcel he sold first — when mortgagee not aggrieved.</p> <p>On the foreclosure of a mortgage covering separate parcels of land owned by different persons, a defendant who has neither answered nor appeared in opposition to a motion that his parcel be sold first, cannot appeal from an order granting the motion. Nor can the plaintiff appeal from thé order, for having no legal interest in the equities as between the defendants, he is not a party aggrieved within the meaning of the Code of Civil Procedure. '</p>

Appeal by the plaintiff, Gargos Hachadoorian, 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 15th day of July, 1907, upon the dismissal of the complaint by direction of, the court after a trial at the Kings County Trial Term.

Appeal by the defendant, the Richmond Light and Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 21st day of January, 1908, upon the verdict of a jury for $6,000,. and from an order entered in said clerk’s office on the 22d day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes, and also (as stated in the notice of appeal) from an order…

Appeal by the plaintiff, Nellie C. Riley, from a judgment of the Supreme Court in favor of the defendant Augustus R. Hoefer, entered in the office of the clerk of the county of Suffolk on the 14th day of August, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of January, 1908, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 11th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, K. Francis X. Egan and another, 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 1st day of February, 1907, upon the dismissal of the complaint by direction of the court at the opening of the case at the Kings County Trial Term.

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

' Appeal by the plaintiff, the Port- Jefferson Realty Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the . 8th day of April, 1907, upon the verdict of a jury rendered by direction of the court, after a trial at the Suffolk Trial Term, dismissing the complaint.

Appeal by the plaintiff, Theodore McKane, from a judgment of the Supreme Court in favor of the defendants Dady and Cook, 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 after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Frederic H. Petze, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn,in favor of the. defendant, rendered on the 28th day of January, 1908, dismissing the complaint at the close of the, plaintiff’s case.

Appeal by the plaintiff, the Inter City Realty Company, from certain portions of a judgment of the Supreme Court in part in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 4th day of April, 1907, upon the verdict of a jury rendered by direction of the court.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure, The question is whether the plaintiff is seized of a good title to real estate in Kings county which the defendant has entered into a contract to purchase of him. Such title comes through the will of J. Culter Fuller.

<p>Real property—vendor and purchaser — title by adverse possession — dower extinguished by death of widow.</p> <p>Although a.prior owner of lands had originally no record title, vet if his grantee and his successors have been in undisturbed and undisputed possession for over fifty years under an unbroken chain of title, ownership by adverse possession is established, and a vendee cannot refuse to complete his purchase upon the ground that the title is unmarketable.</p> <p>This is true although the wife of the original grantor did not join in his deed, if she be dead.</p>

Appeal by Catherine W. Angus from an order of the Surrogate’s Court of the county of Rockland, entered in said Surrogate’s Court on the 8th day of June, 1908, dismissing an'appeal from an order entered in said court on the 19th day of ¡November, 1907, fixing and assessing,the transfer tax upon a legacy under the will of-William Duryea, deceased.

. Appeal by Charles S. Day, a creditor, 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 15th day of May; .1908, as resettled by an order entered on the 1st day of June, 1908, among other things, denying the appellant’s motion to vacate an order requiring all persons interested in the E. R. Strong Company to show cause before a referee therein named why the said corporation should…

<p>Contract — municipal corporations — when sewer contracts divisible.</p> <p>■ Where the plans, specifications and advertisement for bids for the construction of a municipal sewer and “sewage disposal plant in connection therewith” contain the word “ contracts ” and, in separate specifications, require separate bids on each job, an intention that the contract for each should be let to the lowest bidder is indicated, a single contract for both is severable, and the contractor may recover against the municipality for the construction of the sewer although the proceedings authorizing the disposal plant were void.</p>

Appeal by the plaintiff, George A. Kellogg, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 24th day of September, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Injunction — suit to set aside judgment of inferior court — when payment of money held under levy enjoined — sufficient undertaking — process — service on Hebrew Sabbath — equity — when remedy in inferior court inadequate.</p> <p>Where, in an action to vacate a judgment of the Municipal Court taken by default, the plaintiff has filed an undertaking to pay all damages and a second undertaking fqr the payment of the judgment and all damages, interest and costs sustained' by the defendant not exceeding $250, the plaintiff is entitled to an injunction pendente Kte restraining the payment to the plaintiff in the prior action of money levied upon by a marshal and paid into court.</p> <p>As the money has been paid into "court by the marshal on execution, section 613 of the Code of Civil Procedure has been complied with.</p> <p>Such a temporary injunction may he issued under section 604 of the Code of Civil Procedure, although the motion therefor was made without presenting the complaint, where the Special Term finds that the injunction is to prevent an act tending to render a judgment ineffectual.</p> <p>Motion papers may be served upon a Hebrew on Saturday, for chapter 367 of the Laws of 1839 has been repealed. .</p> <p>Where the Municipal Court lost jurisdiction through its failure to attend at the time and place to which the trial had been adjourned and the defendant had no notice of a subsequent trial, at which his default was taken, until eighteen days after entry, and the time within .which he can move the Municipal Court to vacate the judgment has expired, his remedy at law in the Municipal Court is inadequate, and he may sue in equity to set aside the judgment.</p>

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

<p>Tax — assessment in city of Mount Vernon — extension of tax in separate ward books — validity of lien.</p> <p>The charter of the city of Mount Vernon requires a tax levied by the common council to be apportioned and extended on a separate roll for each ward. The assessors, however, prepared a roll for the whole.city in a. single volume, and this roll was confirmed by the common council. Without extending the tax in this book the assessors, pursuant to a resolution, copied the assessment into a separate book for each ward and extended and apportioned the tax therein. Meld, the statute was substantially complied with and the tax so apportioned was alien upon the property affected thereby.</p>

<p>Master and servant—Employers’ Liability Act — notice—knowledge by master — pleading — clerical error in answer—failure to promulgate rule — when foreman fellow-servant.</p> <p>The notice of the cause of an injury required by the Employers’ Liability Act is for the purpose of enabling the master to investigate the claim and adjust it or resist it, as may seem advisable.</p> <p>A notice which merely states that the plaintiff while in the defendant’s employ met with injuries inflicted through negligence in failing to supply a safe place to work, and by reason of the defective condition of “ways, works and machinery ” used in the defendant’s business, and because of the incompetency of the foreman, superintendent and fellow-servants and by reason of a failure to comply with chapter 600 of the Laws of 1902, is insufficient.</p> <p>Although the allegation in a paragraph of the complaint nuinbered 9 as to the due service of the notice was not specifically denied by the answer by reference to that number, it will be deemed to have been denied where it is apparent from the answer that the denial to the 8th paragraph could only have been intended as a denial to the 9th, especially where the objection was not raised at trial so that the defendant could have moved to amend.</p> <p>Even if it be assumed that a defect in a notice is cured if the master through other means have knowledge of the time, place and cause of the accident, there can be no recovery in the absence of proof establishing such knowledge.</p> <p>The failure of a master to make rules is not negligence unless it appears from the nature of the business that he should in the exercise of reasonable care have foreseen and anticipated the necessity therefor. Thus, where a laborer pushing a work car upon a track with the aid of fellow-servants was injured in the foot by a steam crane coming from behind, the master who employed a person to give signals for the crane to come forward is not liable at common law, where there is no proof as to what rules should have been made.</p> <p>In a common-law action to recover for injuries so received, a foreman giving signals for a crane to move forward is acting as a fellow-servant.</p>

Appeal by the ■ defendant, the New York and Queens. County 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 Kings on the 17th day of January, 1908, upon the verdict of á jury for $2,500, and also from,an order entered in said clerk’s office on the 23d day of May, 1908, denying the 'defendant’s motion for a new trial made upon the minutes.

<p>Attorney and client—tort—malpractice—failure to establish retainer.</p> <p>Action against an attorney at law to recover for malpractice in failing properly to defend a client under indictment for crime. Evidence examined and held, that the attorney merely undertook to effect a compromise for the plaintiff as a friend and was not liable in damages for failing to defend.</p>

<p>Appeal by- the plaintiff, Richard M. Bell, 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 Queens on the 22d day of April,1908, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having, been waived, and also from an order entered in said clerk’s office on the 12th day of May, 1908, amending the decision filed herein.</p>

Appeal by the defendant, Levi C. Weir, as president, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, entered in the office of the clerk of said court on the 6th day of March, 1908.

<p>Appeal in each of the above-entitled actions by the defendant Charles W. Polhemus, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in each action in favor of the plaintiff, entered in the office of the clerk of said court on the 24th and 25th days of April, 1908, respectively.</p>

Appeal, by the defendant, Harry Shiffer, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 16th day of March, 1908, upon the defendant’s default, and also from ah order denying the defendant’s motion to open the default and vacate and set aside the judgment.

Appeal by the defendant, James Taylor, 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 4th day of February, 1908, upon the verdict of a jury for $500, as amended by an order entered in said clerk’s office on the 10th day of February, 1908, and also from an order entered in said clerk’s office on the 13th day of February, 1908, denying the said defendant’s motion for a new trial made upon the…

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

Appeal by the plaintiff, Jacob Hyman, 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 23d day of November, 1907, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the Kings County Trial Term, the jury having been discharged.

Appeal by the relator, Hector McNeile, 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 24th 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, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, The Argyle Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of July, 1908, granting the defendants’ motion to Temove an action pending in the Municipal Court of the city of New York to the Supreme Court, and consolidating, said action with an action pending in the Supreme Court between the same parties.

Appeal by- the defendants, Carl Shaff and another, from an order of the Supreme Court, made at the New York Special Term and entered in the .office of the clerk of the County of New York, on the 1st day of June, 1908, denying the defendants’motion to-vacate an order for the examination of the defendants before action brought.

Appeal by the defendants, Edward Marrin and another, 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 New York on the 23d day of June, 1908.

Appeal by the defendant, O. F. Jonasson and Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day óf May, 1908.

Appeal by the defendant, John O’Leary, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of January, 1908, denying the defendant’s motion for a bill of particulars, and also from an order entered in said clerk’s office on the 22d day of January, 1908, resettling the prior order.

Appeal by the defendant, the American Exchange National Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of July 1908, denying-a motion to vacate an order for the examination of the said defendant, and its president to enable the ¡ilaiiitiff to frame his complaint.

Appeal by the defendant, the Rational Fireproofing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of May, 1908, as amended by an order entered in said clerk’s office on the 25th day of June, 1908, denying the said defendant’s motion for a stay of proceedings.

.Appeal by the defendant, William P. Fogarty, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of April, 1-908, as resettled by an order ^entered in said clerk’s office on the 2d day of June, 1908, granting the plaintiff’s-motion for an inspection of books and papers.

Appeal by the defendant, William P. Fogarty, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of April, 1908, as resettled by an order entered in said clerk’s office on the 2d day of June, 1908, granting the plaintiff’s motion for an inspection of books and papers.

Appeal by the plaintiff Samuel H. Harris, from an order of'the Súpreme 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 July, 1908, denying' the plaintiff’s motion fór á bill of particulars of the separate defense set up in the answer.-

Appeal by the defendant, the Murtha & Schmohl Company, from an order of the Supreme Court, made at the New York Special Term and entered in tbe office of the clerk of the. county of New York on tbe 7th day of August, 1908, denying tbe defendant’s motion to dismiss tbe complaint for failure to prosecute tbe action.

Appeal by the plaintiff, Dennis Doyle, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of March, 1908, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the New York Trial Term.

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

Appeal by the defendants, Friedrich Nachod and others, etc. 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 25th •day of February, 1907, upon the verdict of a jury, and also from an •order entered in said clerk’s office on the 19th day of March, 1907, ■nuncpro time as of the 18th day of February, 1907, denying the •said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Friedrich Nachod and others, composing the firm, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the’office of the clerk of the county of New York on the 7th day of January, 1908.

<p>Appeal by the plaintiff, Charles J. Breck, as trustee, etc., and by the defendant, Adolph C. Hottenroth, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of July, 1908..</p>

Appeal by the defendant, Henry S. Glazier, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on .the '24tli day of June, 1908, denying a motion to vacate an order for the examination of the defendant before trial.

Appeal by the defendant, Charles W. Culkin, clerk, etc., from, an order of the Supreme Court, made at the New York Special Term, and entered in the office of ■ the clerk of the county of New York on the 2d day of July, 1908, directing a peremptory writ of mandamus to issue to the defendant requiring him to certify a,case on appeal.

<p>Heading — action against representative for fraud of testator—reply to separate defense required.</p> <p>Where an executor sued by an heir for the fraud of his testator has alleged as a separate defense that on the settlement of a prior action the plaintiff agreed with the testator as to their respective interests in the property of which he claims to have been defrauded, and that upon an accounting of a trustee, of such property,.to which the plaintiff was a party, a conveyance thereof was proved by the testator, and the surrogate decreed with the approval of the plaintiff that the trustee pay the same to the testator, etc., the court under the discretionary power conferred by section 516 of the Code of Civil Procedure should require the plaintiff to reply to the defense; the matters being peculiarly within his knowledge and not within the personal'knowledge of the representative.</p>

Appeal by the defendant, the Valvoline Oil Company, from that part of an order of the Supreme Court, made at the New York Special Term and entered in the office 'of the clerk of the -county of New York on the- 23d day of July, 1908, which imposes costs; from the beginning of the action as a condition of granting permission to serve a supplemental answer.

Appeal by the defendant, the Valvoline Oil Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of August, 1908, directing the defendant Valvoline Oil Company to serve its supplemental answer on or before August 20,1908, and to pay costs or be foreclosed from an order permitting the service of a supplemental answer.

Appeal by the defendant, John S. Prince, from a judgment and order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 9th day of June, 1908, affirming a judgment of the first division of the City Magistrates’ Court of the' city of New York, borought of Manhattan, rendered on the 28th day of March, 1908, and also from the said judgment of the City Magistrates’ Court.

<p>Elections — closing of polls — Election Law construed.</p> <p>Under sections 8, 104 and 106 of the Election Law the delivery of official ballots to electors must cease at five o'clock, and no person to whom a ballot has not been delivered before that tijne can vote.</p> <p>The closing of the polls under said sections should be deemed to mean the close of the delivery of official ballots to electors.</p> <p>It is immaterial whether the provisions of said sections be permissive or mandatory, the election officers are bound to obey them.</p>

<p>Appeal by the petitioner, Isadora P. Thomas, 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, denying the application of the petitioner to set aside and reverse the decision of the board of elections overruling the protest filed against the nomination of Aaron Morris of the twenty-sixth Assembly district of the county of New York as the Independence League candidate for member of Assembly.</p>

<p>Appeal ‘by the petitioner, Michael G. Byrne, 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, denying the petitioner’s motion to strike from the official ballot the name. of Bhinelander Waldo as the candidate of the Independence League for Congress in the fifteenth congressional district.</p>

<p>Appeal — rejoinder brief — discipline for withholding points until reply.</p> <p>Although rejoinder briefs io replying briefs are not authorized, where a party omits vital points from the original brief and puts them in Ms replying brief so as to place his opponent at a disadvantage, the replying brief will be stricken from the files.</p>

Appeal by the plaintiff, Thomas G. Gaylord, from an interlocutory judgment of the Supreme Court in favor of the defendant San Domingo Gold and Copper Company, entered in the office of the clerk Of the county of New York on the 18th. day of May, 1908, Overruling the plaintiff’s demurrer to the separate defense contained in the answer of the said defendant.

Appeal by the plaintiff, Thomas G. Gaylord, from an interlocutory judgment of the Supreme Court in favor of the defendants Albert O. Brown and others, copartners, etc., entered in the office of the clerk of the county of New York on the 18th day of May, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s' demurrer to the separate defense contained in the amended answer of the said defendants.

<p>Motion" to confirm the report of a referee and for an order of disbarment of the respondent.</p>

<p>Attorney— disbarment — reinstatement denied.</p> <p>An attorney is disbarred not only to rid the profession of an unworthy practitioner, but to warn other members'of the profession.</p> <p>An attorney of mature years who has been disbarred for gross unprofessional conduct, criminal in its nature, will not be reinstated after the lapse of two years, for the effect of such reinstatement upon the profession at large must he. considered..</p>

<p>Intoxicating liquors.— local option — effect of change in expiration of excise year — police power—Laws of 1908, chap. 144, construed.</p> <p>The Legislature has power to fix the time when ¿liquor licenses shall expire in towns which under the local option laws have voted against the issuance of licenses.</p> <p>Such act does not impair the obligation of contracts, for liquor tax laws are enacted under the police power.</p> <p>As chapter 144 of the Laws of 1908, which went into effect May first of that year, changing the expiration of the excise year from April thirtieth to September thirtieth, provides that the status existing at the time a vote is taken on local option shall not be changed until the first day of October following next thereafter, one making due application for a liquor tax certificate on May 1, 1908, in a town which formerly .allowed the issue of licenses, is entitled to such license' until October first following, although the town voted against licenses at the meeting held in November, 1907.</p>

Appeal by the defendant, Elizabeth Elliott, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 25th day of January, 1908, upon the decision of the court, rendered after a trial at- the Clinton Special Term, in a partition action, determining among other tilings that the said defendant has no substantial interest in the property in question.

<p>Appeal by the plaintiff, Mary A. Cox, as administratrix, etc., from so much of a judgment of, the Supreme Court, entered in the office of the clerk, of the county of Rensselaer on the-loth day of-October, 1906, as dismisses the complaint by direction of the court as to the defendant United Traction Company, after a trial at the Rensselaer Trial Term. • ’ “</p> <p>Also an appeal by the defendant, The Delaware and Hudson Company, from that part of the said judgment which is in favor of the plaintiff and against said defendant for $14,560, entered upon the verdict of a jury, and also from an -order bearing date the 10th day of October, 1906, and entered in said clerk’s office, denying the said defendant’s motion for a néw trial made upon the minutes.</p>

Appeal by the defendant, the Battle Island Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Oswego on the 16th day of May, 1907, upon, the verdict of a jury, and also* from an order entered in said clerk’s office on the 20th day of May, 1907,' denying the defendant’s motion for a new trial, made upon the minutes.

<p>Railroad — municipal corporation — extension of street across railroad tracks — compliance with section 61 of Railroad Law requisite — prior acquisition of fee immaterial.</p> <p>A municipality intending to extend a street across the tracks of a steam railroad at grade must comply with section §1 of the Bailroad Law requiring tile construction to be made as the Bailroad Commissioners (or their successors, the Public Service Commissioners) shall direct, even though the municipality ■condemned the fee of the proposed street and the right to cross the tracks many years before the enactment of said section.</p>

Appeal by the defendants, William M. Coates and another, as trustees, etc., from a judgment of the Supreme Court in favor of the 'plaintiffs, entered in the office of the clerk of the county of Lewis on the 4th day of June, 1908, upon the decision of the court rendered after a trial at the Lewis Special Term:

<p>Beal property — covenant by railroad to issue pass as consideration for right of way — covenant not running with land — foreclosure — liability of purchaser on personal covenant of mortgagor.</p> <p>Where a deed conveying a right of way to a railroad expressly states what promises are to be deemed covenants running with the land, all others are excluded.</p> <p>Thus, where such deed does not expressly include among the covenants running with the land an agreement by the grantee to issue an annual pass to the grantor, that promise is a mere personal covenant and not binding upon another railroad which purchased the property of the promisor on foreclosure.</p> <p>A covenant to run with the land must be annexed to- the. freehold and enhance its value or benefit it in some way, and a mere incidental right to a pass does not touch or concern the land.</p> <p>The purchaser on foreclosure does not assume the debts or personal obligations of the mortgagor.</p> <p>Although the judgment of foreclosure provides that the purchaser may disavow any contract or lease or rights thereunder which" are recited as part of the property to be sold, it does not become liable to carry out the covenant to issue a pass, for that, not' being recited in the judgment, is not “ part of the property to he sold.”</p>

<p>Appeal by the plaintiff, William E. Burke, 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 7th day of December, 1907, upon the decision of the court, rendered after a trial at the Erie Trial Term before the court without a jury, dismissing the complaint upon the merits.</p>

Motion by the plaintiffs, Nora Lounsbury and another, for a new trial upon a case containing exceptions* ordered to be heard at’ the Appellate - Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Grenesee Trial Term in February, 1907.

Appeal by the plaintiff, David A. Pearsall, from a judgment of the Supreme Court in favor of the defendant, entered in the office ot' the clerk of the county of Onondaga on the 2d day of July, 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 Onondaga Trial Term.

Appeal by the defendant, the Intérnational Railway Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 30th day of June, 1908, upon an order granted at the Erie Special Term, affirming a judgment of the Municipal Court of the city of Buffalo in favor of the plaintiff, entered on the 15th day of May, 1908, upon the verdict of a jury for $250.*

Appeal by the defendant, the H. H. Franklin Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of January, 190§, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 20th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Sarah Noyes, from a judgment of the County Court of Steuben county in favor of the plaintiff, entered in the office of the clerk of said county on the 12th day of March, 1907, upon the verdict of a jury for sixty-five dollars, after a new trial duly demanded in said court, on an appeal from Justice’s Court, and also from an. order entered in said clerk’s office on the 5th day of March, 1907, denying the defendant’s motion for a new trial made upon,…

Appeal by the defendant, Sarah Jenks, from a judgment of the Supreme Court in favor of the plaintiff and the defendant Ella Kent, entered in the office of the clerk of the county of Lewis on the 11th day of April, 1908, upon the decision of the court rendered after a trial at the, Lewis Special Term.

Appeal by the defendant, The New York, Chicago and St. Louis Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the- office of the clerk of the county of Erie on the 3d' day of February, 1908, upon the verdict of a jury for $4,418, and also from an order entered in said clerk’s office on. a the 3d day of .February, 1908, denying the said defendant’s' motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The J. P. Lewis Company, from a judgment pf the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 13th day of January, 1908, upon the report of a referee.</p>

<p>Appeal by the plaintiff, William. H. Thompson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 21st day of May, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Cayuga Trial Term, and also from an ordér entered on the 19th day of July, 1908,'denying defendant’s motion for a new trial made upon the minutes.</p>

Motion by the plaintiff, Solomon Becher, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of thé court at the opening of the trial at the New York Trial Term in November, 1907.

<p>Appeal by the plaintiff, the Automobile Club of America, 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 21st day of July, 1908, vacating an order for the examination of one Thomas Shannon as a witness before trial.</p>

<p>Contempt — effect of failure to appoint guardian ad litem for infant defendant — partnership accounting.</p> <p>Where a guardian ad litem has not been appointed for an infant defendant in a suit for the dissolution of a partnership, the court is without -jurisdiction to make an order requiring him to turn partnership property over to a receiver, and, hence, he cannot be adjudged in contempt for failing to do so.</p>

<p>Attorney and client — retainer in condemnation proceedings construed.</p> <p>Where an attorney at law was retained to obtain an equitable award for the taking of. property by the city of New York on a street opening, under a contract allowing him fifty per cent of whatever sum should be awarded and confirmed on account of taking the premises over and above the amount assessed for the benefit' of the portion not taken, and pending the proceeding and’before award made the city purchased and condemned in other proceedings the remaining lands of the owner so that benefits were not assessed against her on those portions but against the city under section 980 of the Consolidation Act, the attorney is entitled to fifty per cent of the award and interest without deducting therefrom the amount which would have been assessed against the owner’s property for benefits had she continued to own it at the date of the commissioners’ report.</p>

<p>Appeal from order denying leave to interpose additional defenses to indictment —practice.</p> <p>An order denying a motion by one under indictment for leave to interpose in addition to a prior plea of not guilty the further plea that he had been convicted of the same crime on a court martial, being an intermediate order, is not appealable.</p> <p>Such defendant is not precluded from asserting the defense of former jeopardy as he may orally interpose that plea at trial and offer in evidence the record of ■ his former conviction so that, if excluded, the defense will be available on an appeal from a judgment of conviction.</p>

Appeal by the defendant, Sadie O. Alexander, from an order of tiie 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 4th day of June, 1908, granting the plaintiffs’ motion for a new trial.

Appeal by the defendant, John B. McDonald, 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 3d day of March, 1908, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 12th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York Transportation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office Of the clerk of the county of New York on the 6th day of March, 1908, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 13th day of March, 1908, denying the defendant’s motion for anew trial made upon the minutes.

Appeal by the defendant, Charles A. Coutant, 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 óf June, 1908, affirming an order of the City Court of the city of Hew York.

■ Appeal by the defendant, the Interborongh Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 22d day of January, 1908, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 22d day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Sewing Machine Company, from a judgment of tiie Supreme Court in favor of. the plaintiff, entered in the office of the clerk of the county of Mew York on the 3d day of March, 1908, upon, the decision of the court, rendered after a trial at the Mew York Special Term, directing the reassignment of certain patents and an accounting by the defendant.

<p>Appeal by the plaintiff, Herbert B. Harrison, suing in his own behalf, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 3d day of August, 1908.</p>

Appeal by the plaintiff, Edward F. Murphy, as- executor, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of. New York, upon the decision of the court rendered after a trial at the New York Special Term, dismissing the complaint.

<p>Appeal by the defendants, Isaac Slater and another, from an order of-the Supreme Court, made at the New York Special Term and entered in the office of the clerk Of the county of New York on the 6th day of August, 1908:</p>

Gross-appeals by the plaintiffs, Edward Valk;and others, and by the defendant, the Erie. Railroad Company, from portions of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk ef the county of New York on the 25th day of May, 1908.

<p>Bankruptcy — preference — defense of setoff — pleading — demurrer — new matter.</p> <p>Under subdivision c of section 60 of the Bankruptcy Act, allowing a preferred creditor to offset against the amount recoverable from him unpaid credits which he has afterwards given to the debtor without further security for property which becomes part of the debtor’s estate, such further credits extended to one who thereafter becomes bankrupt may he set off only against antecedent preferential payments, and not against such as may have been made after the extension of the new credits.</p> <p>New matter alleged in an answer will he tested on demurrer as if alleged as a complete defense of all the causes of action contained in the complaint, unless it distinctly refers to the cause of action which it is intended to answer as required by section 507 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, Lawrence S. Jackson, from an órdér óf the Appellate.Term of the Supreme Court, énteréd in the 'office óf the clerk of the‘county of New York ón the 19th day óf February, 1908, reversing a judgment of the Municipal Court of. the city of Hew York in favor of the plaintiff rendered on the 10th day of May, 1907. ■

Appeal by James M. Crafts and another, as trustees, etc., from an order of the Surrogate’s Court of tiie county of New York, entered in said Surrogate’s Court on. the 4th day of May, 1908, affirming an order of said court entered on the 13th day of March, 1908, subjecting to a transfer tax the interest in the estate of Ogden Haggerty, deceased, which passed to one Clemence H. Crafts upon the death of Anna K. Shaw.

<p>Appeal by Harris Shapiro 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 August, 1908, determining the appellant to be the purchaser of the premises described in the judgment of foreclosure and sale herein, and appointing a referee to ascertain the amount of damage suffered by plaintiff by reason of the failure of said' appellant to complete the purchase.</p>

Appeal by the defendant, the Standard Churn Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of August, 1908, appointing a receiver.

Appeal by Amelia Schlesinger from an order of' the Supreme Court, made at the New York Special Term and entered in the office of the clerk of -the county of New York on the 16th day Of June, 1908, denying the appellant’s application for leave'to intervene as a party defendant.

<p>Appeal by the defendants, Fannie Grossman and another, from an order of the Appellate Term of the Supreme Court,, entered in the office of the clerk of the county of New York on the 7th day of February, 1908, reversing a judgment of the City Court of the city of New York in favor of the defendants, and also reversing an order of said City Court which set aside a verdict in favor of the plaintiffs.</p>

<p>Appeal by the defendant, The City of New York and others, from an- order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of August, 1908, granting an injunction pendente lite.</p>

Appeal by the defendant, the Illinois National Bank, from an-order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of July, 1908, denying the defendant’s motion to vacate an attachment.

Appeal by ihe defendant, J. Charles Weschler, 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 18th day of Harch, 1908, 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 20th day of March, 1908, denying the defendant’s motion for a new-trial made upon the minutes.

Appeal by the plaintiff, Alonzo B. Garrett, from an interlocutory 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 8th day of March, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer to the complaint.

Appeal by the defendant, Ferdinand Hecht, 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 oh the 5th day of June, 1908, vacating an order for the examination of the plaintiffs before trial.

<p>Separate appeals by the defendants, James H. George and others, as executors, etc., and by the defendant, the Mew Amsterdam National Bank, from an order of the Supreme Court, made on application of plaintiff 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, directing the referee herein to execute and deliver a deed to the assignee of the bid of the purchaser at a foreclosure sale herein, and, upon the execution and delivery of such deed, vacating an order denying the plaintiff’s motion to compel the.purchaser to complete his purchase, and directing the repayment of the money received by the referee from him.</p>

Appeal by the petitioner, George Gordon Hastings, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office.of the clerk of the county of New York on the 9th day of July, 1908, denying the .petitioiier’s application for á peremptory writ of mandamus.

Appeal by the plaintiff, the Firestone Tire and ¡Rubber Company, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 24th day of April, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining a demurrer to the complaint interposed by certain of the defendants.

Appeal by the plaintiff, Morris Hess, from part of 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 18th day of December, 1907, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

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

Appeal by the defendant, The 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 New York on the 24th day of December, 1907, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 14th day of January 1908, denying the defendant’s motion for a new trial made upon the -minutes.

Appeal by the defendant, Julius B. Fox, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of January, 1908, upon the report of a referee directing the specific performance of a contract to purchase land.

Appeal by the defendant, Joseph H. Sulzbacher, 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 26th day of June, 1908.

<p>Intoxicating liquors — rebate on surrender of certificate — effect of conviction for violation of Liquor Tax Law prior to issue of certificate — statutes construed.</p> <p>Where a liquor tax certificate was issued to one then under indictment for violating the Liquor Tax Law while bartender of the holder of another certificate, and thereafter he was convicted of the crime charged, neither he nor his assignee is entitled to a rebate on offering the certificate for cancellation.</p> <p>The amendment to section 25 of the Liquor Tax Law, made by chapter 486 of the Laws of 1903, did not so change the law that the right to rebate is forfeited only when the offense is committed during the life of the certificate, and there can be nó rebate if when the certificate is surrendered three years have not elapsed since a conviction of the original holder for a violation of the Liquor Tax Law, for by virtue of section 23, as amended by chapter 680 of the Laws of 1905, no one who has been convicted of a violation of the act can lawfully trafile in liquors within that period.</p>

<p>Master and servant — negligence — fall while laying floor timbers — safe place to work — failure to guard opening intended for elevator — Labor Law construed.</p> <p>Where a carpenter engaged in laying floor beams between girders fell from planking which he had laid thereon, the question of a- safe place to work is not involved for he himself was constructing the place.</p> <p>Where the floor on which he was working was the highest then under construction, it is error to charge that a block and fall used to hoist timber through an opening which later was to contain an elevator shaft, was an elevating machine within section 20 of the Labor Law, and that a failure of the defendant to inclose or fence such opening is evidence of negligence.</p> <p>Said statute is not designed to protect persons engaged in unloading material at the top of a shaft or opening from falling into it, but rather to protect others working or lawfully on a floor which has been laid up to the shaft or opening.</p>

Appeal by the defendant, John Zeto, 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 11th day of May, 1908, upon the decision of the court, rendered after a trial at' the New York Special Term, confirming the report of a referee and directing the sale in foreclosure of ■ the premises described in the complaint herein.

Appeal by the defendant, The Royal Baking Powder Company, from an order of the Supreme Court, made at the New York Special Term and entered in. the office of the clerk of the county of New York on the 22d day of September, 1908, denying the said defendant’s motion to vacate an order for its examination, through its officers, before trial.

Appeal by the defendant, The New Amsterdam National Bank of New York, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1908, upon the decision of the court rendered after a trial at the New York Trial Term, a jury havin'g been waived.

Appeal by the defendant, Michael Dietrich, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of the county of New York on the 3d day of March, 1908, upon tbe decision of tbe court, rendered after a trial at tbe New York Special Term.

Appeal by the defendant, Post & McCord, 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 February, 1908, upon the verdict of a jury for $9,000, reduced by stipulation to $2,500, and also from an order entered in said clerk’s office on the 13th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The' Metropolitan Surety Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 9th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of February, 1908, dénying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the plaintiff, John Hurley, and by the defendant, the Empire Brick and Supply Company, from parts of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 17th day of October, 1907, upon the decision of the court rendered after a trial at the New York Special Term. ■ ■

Appeal by the defendant, Louis Minsky, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of November, 1907, upon the verdict of a jury for $1,972.50, 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.

Appeal by the plaintiff, the Guaranty Trust Company 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 18th day of June, 1908..

Appeal by the plaintiff, The Baltimore and Ohio Railroad Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the Appellate Term on the 7th day of February, 1908, affirming a judgment of the Municipal Court of the city of New York in favor of the defendants, entered in the office of the clerk of said court on the 1st day of October, 1907, and an order of said Municipal Court, entered on the 24th day of October, 1907,…

<p>Crime —oral bet on horse race—Penal Code, section 351, construed.</p> <p>One who receives a sum of money in payment of an oral bet made by him with another at a race track upon the result of a race then and there to-be run is not guilty of a crime under section 851 of the Penal Code, as amended by chapter 507 of the Laws of 1908.</p> <p>That part of said section which makes one guilty of a misdemeanor who “ receives, registers, records or forwards * * * money * * * bet or wagered * * * by or for any other person” upon the result of a horse race has'reference to the receipt, registering, recording or forwarding and not to the money or thing wagered. ’</p> <p>The provision of the State Constitution prohibiting the Legislature from authorizing gambling of any kind is not self-executing.</p> <p>Historical review of legislation in restraint of gambling.</p>

<p>Insurance — policy construed — distributive share of surplus — principal and agent — when agent cannot alter terms of contract.</p> <p>Where a policy of life insurance provides that at the expiration of a certain period, and not before, the policy together with similar policies issued in the same year will be credited with its distributive share of surplus and dividends, and further provides that no agent of the company has. power .to modify the policy, the amount of dividends to which the insured is entitled on the maturity Of the policy is speculative and dependent upon the number of survivors in that class of insurance, the cost of administra tioh, the interest earned on the investment of premiums during.that period, etc., and the insured is only entitled to share in a dividend so determined, even though the agent when negotiating the insurance gave him a written "statement illustrative of tlie'several methods of settlement" upon the maturity of the policy “based on the past experience o'f the company,” which statement placed specific cash values on the reserve and estimated surplus.</p> <p>Said paper was a mere statement of results to be hoped for, and, moreover, as by the specific provisions of the contract the agent had no power to bind his principal by .any promise modifying the contract, or not contained in the application, the insurer was not bound thereby.</p>

<p>Will — provision that specific legacies be paid in full — devastavit by executor — loss falls on general and residuary legatees.</p> <p>Where a will make.s specific legacies and provides, that they “shall be paid in full and all taxes or other charges on said bequests shall be paid * * * out o£ my residuary estate,” the specific legatees do not share ratably with the general and residuary legatees in a loss occasioned by a misappropriation oí the funds by an executor, but are entitled to be paid although nothing be left for the payment of general and residuary legatees.</p> <p>Where an estate has been so depleted by the devastavit of an executor or trustee that there are not funds enough to pay specific legacies in full, whatever is left must be devoted to the payment of such legacies to the exclusion of residuary legatees.</p> <p>Scott, J., dissented.</p>

<p>Appeal by Maurice Dreyfus and others from á decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 7th day of May, 1908.</p>

Appeal by the Corporation Counsel of the City of New York from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 20th day of April, 1908, denying the appellant’s motion to set aside an order in a proceeding, or to have the proceeding resulting in the order reopened and a rehearing had.

Appeal by the petitioners, Julien T. Davies and others, constituting the firm of Davies, Stone & Auerbach from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1908, as amended mcno pro tunc by an order entered on the 7th day of July, 1908, denying the petitioners’ application for the determination of a lien.

Appeal by the defendant, The Empire State Surety Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of May, 1908, denying the defendant’s motion for a bill of particulars.

<p>Appeal by the plaintiff, Julia B. Boocock, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1908, directing the plaintiff to assign to one of the defendants a certain bond and mortgage upon payment ' of the amount due on the mortgage.</p> <p>Also an appeal by the defendant Abner T. Bowen from so much of said order as grants the plaintiff an extra allowance as a condition to snch assignment.</p>

<p>Appeal by the plaintiff, James B. Capen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 16th day of June, 1908, upon the dismissal of the complaint upon the plaintiff’s openings upon a trial at the Saratoga Trial Term.</p>

<p>Sale — refusal to allow inspection — recovery of deposit paid by buyer — purchase by buyer on sale made for his account — evidence — inspection and quality of goods.</p> <p>Where a seller agrees to ship to a buyer vegetables of a certain quality at a specified price f. o. b. at the point of shipment and to obtain as low a freight rate as possible.for the buyer, the latter is entitled to a reasonable opportunity to inspect the goods before paying the balance of the purchase price, especially where he has been notified that some of the goods shipped do not comply with the order.</p> <p>Where the seller ships the goods in his own name and refuses to allow the buyer to inspect them on their arrival, there is a breach of said contract and the seller is liable for the deposit paid by the buyer when placing the order.</p> <p>In an action to recover such deposit it is no defense that the buyer after being refused an inspection and being notified that the goods would be sold on his account, bought in the goods on such sale through an agent.</p> <p>In such action the plaintiff may show that his agent inspected the property before purchasing it and the quality of the goods.</p>

<p>Shipping — negligence—-injury to chartered barge — facts raising question for jury.</p> <p>Action to recover the value of a barge which sank while chartered to the defendant. By the charter party the defendant was to pay a certain sum per day for the use of the barge for carrying tunnel excavations, while the captain was to be furnished and paid by the owners, it being his duty to care for their interest and to see that the boat was not overloaded and to show persons under contract with the defendant where to place the load, so that it would be evenly distributed. The captain employed by the plaintiffs proved to be drunken and incompetent, and while absent from the work the boat was so loaded by contractors working for the defendant that it broke and sank. There was a conflict of evidence as to whether the defendant had notified the plaintiffs of the absence of the captain, but it was shown that he had been at the plaintiffs’ office during the day. On all the evidence,</p> <p>Held, that it was for the jury to say whether the defendant had recklessly or negligently permitted the loading of the boat to continue in the absence of the captain, and that a nonsuit was error.</p> <p>Smith, P. J., dissented.</p>

<p>Insurance — by-law of beneficial society construed—prohibition against “engaging” in saloon business — financial interest does not avoid insurance — construction of ambiguous words.</p> <p>By-laws of a fraternal beneficial society providing that no person shall be admitted as a beneficial member who is “ engaged ” in certain specified occupations, as blasting, mining, etc., or other occupations deemed “extra hazardous,”and that no person shall be eligible for membership who is “ engaged either as principal, agent or servant in the manufacture or sale of liquors as a beverage and that the benefit certificate of any member engaging in . said prohibited occupations shall become void, should be construed to prohibit members from actually engaging in such occupations and not from being financially interested therein.</p> <p>Hence, a member who with his son as copartner opened a saloon, but did not attend the bar or perform any manual labor therein or have any part in the business other than a financial interest, was not “engaged’’ in such business, and on his death his beneficiary may recover from the society.</p> <p>The word “ engage” defined.</p> <p>Where a word as used in such by-law is susceptible of two interpretations, it will be given that most favorable to the insured.</p> <p>Smith, P. J,, dissented.</p>

Appeal by the defendants, John H. Starin 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 Montgomery on the 27th day of April, 1908,- upon the decision of the court, rendered after a trial at the Fulton Special Term, appointing a referee to take and state an account between the parties.

Appeal by the defendant, Thomas 0. Luther, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Saratoga on the 14th day of July, 1908.

Appeal by the defendant, Charles Reicherter, from a judgment of the County Court of Schenectady county in favor of the plaintiff, rendered on the 14th day of February, 1908, affirming a judgment of the Police Court of the city of Schenectady convicting the= defendant of violating section 3 of chapter 14 of the laws and: ordinances of said city.

Appeal by the plaintiff, Tully M. Robison, from a judgment .of the Supreme Court in favor of the defendant, entered in .the office of the clerk of the county of Schenectady on the 4th day of February, 1908, upon a nonsuit directed by the court after a trial at the Schenectady Trial Term, and also from an order entered in said clerk’s office on the 4th day of February, 1908, granting the defendant’s motion for a nonsuit.

Appeal by the plaintiff, Thomas Burke, from a judgment of. the Supreme Court • in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 29th day of- May, 1908, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Saratoga Trial Term.

<p>Municipal corporation — assessment for street paving — charter construed— deed — conveyance not including street.</p> <p>Where a municipal charter provides that “no land owner shall be required to grade * * * or pave or bear the expense of so doing any portion of the street not in front of such land, nor beyond the center of the street,” an owner whose title does not include any portion of the street cannot be charged with the expense of paving the same.</p> <p>A deed which describes boundaries as commencing at a northwesterly corner of • two specific streets and running along the north line of one street, thence by various courses and distances to the other street, and thence along the easterly line of the latter street to the place of beginning, does not convey any portion of the street so as to charge the owner with the expense of paving the same under the municipal charter aforesaid.</p> <p>While there is a presumption that a conveyance of land bounded by an existing street carries the fee to the center, such presumption is rebutted by the use of words necessarily excluding the street, as where property is bounded by the exterior line of the street.</p>

Appeal by the defendant, Charles F. W. Horn, from á judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 27th day of April, 1908, 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 7th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Bell’s Knitting Mills, from an interlocutory judgment of the Supreme Court in favor of the plaintiff,' entered- in the office of the clerk of the county of Ulster on the 14th day of February, 1908, upon the decision- of the court rendered after a trial at the Ulster Special Term, declaring the agreement under which the defendant holds the property of the bankrupt fraudulent and illegal, as giving a preference to some particular, creditors over other…

Appeal by the defendant, the Delaware and Eastern Railroad Company, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 8th day of June, 1908, requiring the defendant, to accept an amended complaint. The original complaint was served July 5, 1907. The answer was served August 9,1907.

<p>Appeal by the defendant, The Village of Waverly, from a 'judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 16th day of March, 1908, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 23d day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The City of Elmira, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chemung on the 26th day of April, 1907, resettling an order denying the defendant’s motion for a new trial made upon the minutes, a jury having theretofore rendered a verdict in favor of the plaintiff for $1,200.

Appeal by the plaintiff, The People of the-State of New York,. from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 15th day of May, 1908.

<p>Appeal by the plaintiff, Mary G. Devine, 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 Albany on the 24th day of May, 1907, upon, the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.</p> <p>The action is for damages for the alleged negligent killing of the plaintiff’s intestate. It is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The defendant was engaged in the erection of a gasholder 150 feet in diameter, designed to hold about 2,000,000 cubic feet of gas. ' The foundation and bottom of the holder had been completed, and work had been com menced in the erection of the shell or side plates. While moving one of these plates it fell, causing the death of the plaintiff’s intestate. The plate was being moved upon a skid made of two stringers of spruce four inches by six inches and sixteen feet long. Hailed to these and separating them about five feet apart were three crosspieces of spruce plank two inches thick -by nine inches wide and about five feet in length, one fastened near either end of the stringers and the other in the center. There was what is known as an “ A ” frame in the center,, made of two upright pieces of plank two inches thick, nine inches wide and about five feet long, attached with nails at the bottom to the center crosspiece, and of two boards one inch thick and six inches wide running from near the top of each of the uprights to the opposite end of the center crosspiece and nailed at each end. The center crosspiece projected beyond the stringer upon one end about three or four inches. The plate which fell while being moved was twenty-nine feet six inches long, about four and one-half feet wide, one and one-thirty-second inches thick, and weighed about three tons. It had a curvature of about twenty-two degrees with a seventy-five foot radius so that if a straight line were drawn between the ends of the plate it would pass about two feet from its center. The plate was placed on its edge on one side of the skid leaning against the “ A ” frame and lashed with a rope passing through bolt holes near the center at the top, to the top of the two uprights and resting at the bottom in the center upon the projecting crosspiece and near the ends upon the other two, crosspieces. The whole load was being moved by the aid of three rollers five or six inches in diameter under the stringers. These had to roll over the projecting bolt heads about three-eighths of an inch high in the iron plates forming the finished bottom of the tank which Caused a considerable jarring of the load. The work was in charge of one Mason, the superintendent of the defendant, and one Brennan who was the foreman under him. There were about twenty-five men engaged in the construction of the tank. These Were divided into several gangs performing different parts of the work. One Hilt was the leader or “ boss” of the gang in which the deceased worked. Several plates had been moved and placed in position without accident. The plate in question was being moved on the skid and rollers by the men pulling on a rope attached to one end of the plate. When it had been moved about seventy-five feet it was found that it had been jarred off the projecting end of the crosspiece at the center upon which it had rested. When Hilt saw that it was off, he and some of the men were trying on the outside, by the use of bars, to pry it back on the crossbeam. At that time, according to plaintiff’s evidence, Hilt told Devine to go inside and drive or hammer down the center crosspiece, which had become loosened from the stringer by the nails drawing out. The order was obeyed by Devine, and after striking one or more blows with a mall where he was directed to, the plate fell upon him, causing his death. At the time when Devine was striking the blow on the inside, Hilt and others were on the outside, prying the plate with crowbars, and it was at that moment that the plate fell and crushed Devine.</p> <p>The court at the close of all the proofs in the case dismissed the complaint on the ground that it was the act of Hilt in prying on the plate which apparently threw the pressure on the upright and caused the accident, and that that was an act not of superintendence, but of a co-employee in the performance of a detail of the work.</p>

Appeal by the defendant, Orrin B. La Pell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of . the clerk of the county of Hamilton on the 17th day of February, 1908, upon the verdict of a jury for sixty dollars rendered by direction of the court.

<p>Appeal by the plaintiff, William D. Pindar, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, entered in the office of the clerk of the county of Saratoga on the 6th day of June, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of June, 1908, denying the plaintiff’s motion for a new trial made upon the minutes:</p>

Appeal by the defendant, Eugene H. Porter, as Commissioner, etc., 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 21st day of August, 1908, granting a peremptory writ of mandamus. * This is a proceeding to compel the defendant, as Commissioner of Health of the State, by mandamus, to approve the nomination of the relator as health officer of Saratoga Springs, and certify it-to the State…

<p>Appeal by the defendant, John G. McIntyre, from part of an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Saratoga on the 14th day of July, 1908, denying the said defendant’s application to vacate an order of arrest.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of Schenectady on the 12th day of March, 1908, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 3d day of March, 1908, denying the defendant’s motion for a new trial madé upon the minutes.

Appeal by the defendant, the Walker & Williams Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of March, 1908, upon the verdict of a jury for $1,500, 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.

Appeal by the plaintiff, Maggie Kinner, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 30th day of September, 1907, upon the verdict of a jury, rendered by direction of the . court, dismissing the complaint upon the- merits.

Appeal by the defendants, Daniel Sheehan and others, constituting the board of fire commissioners, etc., from an order of the Supreme Court, made at the Chemung Trial and Special Term and entered in the office of the clerk of the county of Chemung on the 6th day of January, 1908, granting a peremptory writ of mandamus.

Appeal by the defendant, Azariah J. Hathaway, from' a judg- • ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 29th day of November, 1907, upon the verdict of' a jury, and also from an order entered in said clerk’s office on the 18th day of November, 1907, denying the defendant’s motion for a new trial made upon-the minutes:

Appeal by the claimant, Mary W. Burchard, from a judgment of the Court of Claims of the State of New York in favor of the claimant,, entered in'the office of the clerk of said court on the 18th day of November, 1907.

Appeal by the defendant, James J. Callanan, from a judgment of the Supreme Court in favor of the plaintiff, ’entered in the office of the clerk of the county of Saratoga pn the 30th day of January, 1908, upon the decision of the court rendered after á trial at the Saratoga Special Term.

Appeal by the defendant, The Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff; entered in the office of the qlerk of the county of Chemung on the 16th day of March, 1908, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 16th day of March, 1908, denying the defendant’s motion for a neW trial made upon the 'minutes.

Appeal by Seneca B. Stoddard, the judgment debtor, from an order of the county judge of Warren county, entered in the office of the cleric of the county of Warren on the 9th day of January, 1908, denying the motion of said debtor to vacate an order requiring him to appear and answer in supplementary proceedings, and denying his motion to compel.

Appeal by the Central Presbyterian Church of Mayfield, N. Y., from a decree of the Surrogate’s Court of the county of Fulton, entered in said Surrogate’s Court on the 28th day of December, 1907, settling the accounts of the executor of th.e will of Adelia Getman, deceased, and overruling the objections of the appellant.

Appeal by Joseph Gibson and another, executors and legatees, etc., and others, from a decree of the Surrogate’s Court of the county of Otsego, entered in said Surrogate’s Court on the 18th day of June, 1908, refusing to admit to probate a paper purporting to be the last will and testament of Martha Gibson, deceased. The paper purporting to be the will of Martha Gibson, deceased,' is in form as follows: • ...

Appeal by the contestant, Juliet C. Isham, from an order of the Surrogate’s Court of the county of Otsego, entered in said Surrogate’s Court on the 4th day of August, 1908, denying a motion to cure a defect in the service of a notice of. appeal from a decree theretofore entered in said Surrogate’s Court.

Appeal by the plaintiff, George Carver Rice, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 13th day of April, 1908, upon the decision of the court rendered at an adjourned term of the Washington Trial Term without a jury, dismissing the complaint. *

Appeal by the plaintiff, Joseph Bushtis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 6th day of May, 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 Greene Trial Term. The defendant was operating a cement mill in the village of Catskill. In its factory is what is known as the clay room.

Appeal by the petitioners, Charles O. Hoagland and others, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Tioga on the 11th day of June, 1908, vacating an order theretofore made herein, upon a petition for a voluntary dissolution of The Mañoca Temple Association. .

Appeal by the defendant, the 'Kinser Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 8th day of May, 1908, upon the verdict of a jury for $450, and also from an order entered in said clerk’s office bn the 7th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes;

Appeal by -the plaintiff, Welcome A. Hanor, from a judgment of ■ the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 28th day of March, ' 1908, upon the verdict of a jury dismissing the complaint, and also • from an order entered in said clerk’s -.office on the 28th day of March, 1908, denying’the plaintiff’s motions for a new trial made upon the minutes, and upon the ground of newly-discovered évi-' dence, and for…

Appeal by the defendant, the Citizens’ Steamboat Company of Troy, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 20th day of January, 1908, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 27th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Submission of a controversy, upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. One Erastus Barnes died intestate in 1856 seized and possessed of certain real estate. He left a widow, Nancy Barnes, who has since died, and three. children, Nancy C. Barnes, now Nancy C. Smith, Morgan L. Barnes and Erastus B. Barnes, as his only heirs at law.

<p>¡Railroad-—public convenience and necessity—grant of new certificate after adjudication that certificate should not issue—certiorari—writ sued out by rival applicant.</p> <p>Where there has been a judicial determination that a certificate of public convenience and necessity for a proposed railroad should not be granted, the decision is controlling on a second application, as to the necessity of the particular construction..first proposed, where the situation remains the'same; and the effect of the decision is not avoided because prior to the second application the railroad was reorganized and the line extended from that originally planned.</p> <p>A certificate of public convenience and necessity should not he granted.where the construction' of the railroad will involve the monopolizing of lands fronting on navigable waters to the great detriment of commercial interests and to a proposed ship canal to he built by the Federal government.</p> <p>A writ of certiorari to review the determination of the Board of Railroad Commissioners granting a certificate of public convenience and necessity will hot be quashed solely because it is sued out by a rival applicant.</p>

<p>¡Railroad—negligence — injury by fall of trolley wire — facts raising presum.ption th.at structure is not a nuisance — pleading— admission of lawful organization of defendant — allegations not charging maintenance of nuisance.</p> <p>Where it is admitted that a defendant railroad constructed its róad and equipped it with an overhead trolley system more than one year prior to an injury to plaintiff caused by the breaking of a trolley wire, it will be presumed, by virtue of section 91 of the ¡Railroad Law, that the railroad was lawfully using the highway and not maintaining a nuisance, so that the plaintiff in order to recover must show negligence. Hence, where no negligence is shown and it is admitted that the fall of the trolley wire was caused by the destruction of adjoining buildings by fire, there can be no recovery.</p> <p>Moreover, where the complaint alleges that the defendant was a domestic corporation duly organized and existing and engaged in operating a street railroad, and that allegation is not denied in the answer, it stands admitted that the defendant was lawfully organized, existing and engaged in the operation of a street railroad.</p> <p>In the face of such admission the defendant is not charged with maintaining a nuisance by an allegation that it “knowingly and wrongfully jeopardized the lives,” etc., of persons lawfully on the highway. The allegation must be deemed to relate to negligence only.</p> <p>The same is true of a further allegation that solely by reason of the wrongful acts of the defendant the plaintiff’s head was cut, bruised and injured and he was shocked by electricity, etc.</p>

Appeal by the plaintiff, Edward Mosehauer, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 23d day of March, 1908.

<p>Appeal by the defendant, Kings County Lighting Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.</p>

Appeal by the plaintiff, Isabella Neale, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 28th day of September, 1908, dismissing the complaint. No judgment was entered, but no objection is taken to the appeal from the order.

Appeal by the defendant, Anthony Marx, from a judgment of the Court of Special Sessions of the second division, of the city of New York, rendered on the 24th day of April, 1908, convicting the defendant of violating the- Liquor Tax Law by selling liquor on Sunday, and also from an order denying the defendant’s motion to dismiss the information herein.

Appeal by the plaintiff, Ferdinand Munch Brewery, from a judgment of. the Municipal Court of the city'of New York, borough of Brooklyn, in favor of the defendant, rendered on the 23d day of April, 1908.

Appeal by the defendant, Solomon Bonewur, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the loth day of May, 1908.

Appeal by the plaintiff, Edward A. Jeny, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 28th day of May, 1908.

Appeal by the petitioner, John H. Tierney, from an order of the Supreme Court, made at the' Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of June, 1908, denying the petitioner’s application to recover possession of his child.

Appeal by the plaintiff, Margaret Duffy, 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 March, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal—inconsistent findings —husband and wife — annulment of marriage — marriage after former husband has disappeared for five years —second marriage not annulled where decree would be inequitable.</p> <p>The' rule that where two findings are wholly- irreconcilable the appellate court must accept that most favorable to the appellant, does not obtain where there is no evidence whatever to support one of the findings and the appellant admitted in open court that the fact found did not exist.</p> <p>Thus, where in an action for an annulment of-marriage the court has found both that the defendant had no knowledge that her former husband was living when she married the plaintiff, and that she did know that he was living at the time of the second marriage, the appellate court will not adopt the latter finding where no such fact was alleged in the complaint and it was admitted by the plaintiff that the marriage was contracted in good faith by both parties. Where a person remarries after a former husband or wife has absented himself or herself for five successive years then last past without being known to such person to be living during that time, the second marriage is not void but only voidable, on the discovery that the former husband or wife is living.</p> <p>Section 4 of the Domestic Relations Law, declaring that under the circumstances the second marriage -is void only from the time its nullity is declared by a court of competent jurisdiction, is not mandatory and the court may refuse to annul the second marriage, although the former husband or wife is living, if such decree would be highly inequitable and the plaintiff does not come into court with clean hands.</p> <p>Thus, where the defendant remarried in good faith after her former husband had been absent for five years, and without knowledge that he was living during that time, and her second husband, on subsequently discovering that the first husband was living, promised to defend the second marriage so long as the wife faithfully discharged her duties and obligations, Which she did, and they continued for two years thereafter to sustain the relation of husband and wife with knowledge of the facts, the court will not annul the second marriage. Gaynor, J., dissented, with opinion.</p>

Appeal by the defendants, Benjamin Reich and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 29th day of May, 1908.

Appeal by the defendant-, The Brooklyn Heights Railroad Company, froth 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 25th day of February, 1908, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office on the 23d day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Intoxicating liquors — principal and surety—violation of law by principal in localities not covered by bond.</p> <p>A bond given to secure the observance of the Liquor Tax Law by one to whom a certificate is issued secures only the observance of the law on the premises for which the license is issued, and there can be no recovery against the surety because the principal violated the law in other localities.</p> <p>Hooker, J., dissented.</p>

<p>Appeal by the defendant, Frederick E. Carpenter, tenant, and by the United Realty and Mortgage Company, owner in possession, from orders of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 3d day of April, 1908.</p>

Appeal by the plaintiff, Therese E. McGlynn, from a judgment of the Supreme Court iii favor of the defendant, entered in the office of the 'clerk of the county of Nassau on the 16th day of February, 1907, upon the dismissal of the complaint by direction of the court at the close 6'f plaintiff’s casé upon '& trial at the Nassau Trial Term.

Appeal by the plaintiff, Thomas T. Freeman, from a judgment of the Supreme Court in favor of the defendant, bearing date the 3d day of February, 1908, and entered in the office of the clerk of the county of Kings upon the dismissal of the complaint by direction .of the court at the close of the plaintiff’s evidence upon a trial at the Kings County Trial Term.

<p>Appeal by Samuel Pettit 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 9th day of July, 1908, revoking and canceling a certificate of license issued to the appellant.</p>

Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of February, 1908, upon the verdict of a jury for $1,000, rendered after a trial at the Kings County Trial Term.

Appeal by Charles A. Hasselbrook, as administrator, etc., from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 30th day of June, 1908, directing the said administrator to file his account herein. In 1905 the decedent died, leaving a last will and testament, which was admitted, to probate in that year by the surrogate' of Kings county.

Appeal by the defendant, Frederick H. Cox, from an order of the County Court of Queens county, entered in the office of the clerk of said, county on the 26th day of November, 1907, denying the said defendant’s motion to vacate and set aside a certain portion of an interlocutory judgment of said court theretofore entered herein and directing a new trial.

Reargument of an appeal by the plaintiff, George E. Craft, 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 7th day of December, 1907, and also from an order bearing- date the 7th day of December, 1907, and.entered in said, clerk’s office denying the plaintiff’s motion- for a hew trial. (See 126 App. Div, 936.)

Appeal by the defendant, Eugene B. Howell, as receiver, etc., from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 30th day of August, 1907, upon the decision of the court at Special 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 Kings on the 27th day of April, 1908, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived. The action was to recover interest on an award for lands of thé plaintiff taken by the city by eminent domain proceedings.

Motion by the plaintiff to correct our order of reversal, and also a clerical error in the original judgment. (See 127 App. Div. 153.)

Appeal by the defendant, the Hanover Fire Insurance Company of New York, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 2d day of April, 1908.

Appeal by the defendant, Abels, Gold Realty Company, from a judgment of the Supreme Court, entered in the Kings county clerk’.s office on the 9th 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. Judgment affirmed, with costs, on the opinion of Mr. Justice Kelly at Trial Term, Woodward, Jenks, Hooker, Gaynor and Miller, JJ., concurred. The following is the opinion delivered at Trial Term:

Appeal by the defendant, the New York Edison Company, from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of August, 1908, denying a motion to dismiss the complaint for want of prosecution.

<p>Crime — assault—new trial—newly-discovered evidence — sufficiency of moving affidavits considered.</p>

<p> Evidence —proof of character. </p>

Appeal by the defendant from an order, entered in the New York county clerk’s office on the 16th day of June, 1908, granting a discovery and inspection of cer^ tain papers, letters and documents in the possession of the defendant.

<p> Discovery —inspection of looks of corporation. </p>

Appeal by the defendant from a judgment of conviction for keeping a disorderly house, rendered on the 21st day of April, 1908, by the Court of Special Sessions, first division, of the city of New York.

<p>Appeal from an order, entered in the New York county clerk’s office on the 26th day of May, 1908, denying a motion for an injunction pendente lite.</p>

<p>Appeal by the plaintiff from an order entered in the New York county clerk’s office on the 1st day of July, 1908, setting aside an interlocutory judgment and referee’s report, relieving respondents from stipulations, and granting respondents permission to serve amended answer.</p>

<p>Fraud — inducing intoxication — demurrer — right to answer'over.</p>

Order affirmed, with ten dollars costs and disbursements, on the opinion of the court below. Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ. . The following is the opinion of the court below :

<p>Appeal from an order of the Supreme Court, entered in the office of the clerk of the county of Columbia on the 18th day of April, 1908.</p>