Volume 129 — New York Appellate Division Reports

Appeal by the defendant, the Insurance Company of North America, 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 31st day of January, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

’ Appeal by Howard Wood from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 13th day of April, 1908, admitting to probate the will of Kelson Buell Sizer, deceased. The contestant was a nephew by the half blood.

Appeal by the plaintiff, The People’s Trust Company, from an interlocutory judgment of the Supreme Court in favor of the defendant Eugene B. Howell, as receiver, etc., entered in the office of the clerk of the county of Queens on the 12th day of June, 1907, upon the decision of the court, rendered after a trial at the Queens County Special Term, sustaining the said defendant’s demurrer to the complaint on the ground that it does not state facts sufficient to constitute a…

Cross-appeals by the plaintiff, the Stroock Plnsh Company, and by the defendant, James Talcott, from parts of an interlocutory judgment of the Supreme Court, made at the Orange Special Term and entered in- the office of the clerk of the county of Orange on the 20th day of March, 1908, upon the decision of the court, rendered after a trial at the Orange Special Term, overruling a demurrer to four defenses and sustaining it as to three counterclaims.

Appeal by the plaintiff, Emma Bauman, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 30th day of June, 1908, upon the decision of the court, rendered after a trial at the Queens County Special Term, sustaining the defendant’s demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

Appeal by the defendant, John M. Shinn, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 11th day of June, 1908, upon the order or decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the complaint, and also (as stated in the notice of appeal) from such order, entered in said clerk’s office on the 11th day of…

Appeal by the defendant, The Metropolitan Surety 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 19th day of May, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.

<p>Shipping — contract to furnish full cargo—liability when carrier prevented full load — when payment not voluntary.</p> <p>Where a contract for the transportation of stone by a vessel obligated the shipper to use the whole vessel which carried a cargo of over 300 tons, payment to be made at a certain rate per ton, and the captain prevented the shipper from loading a full cargo, he is liable only to pay the agreed rate on the number of tons actually carried.</p> <p>Where the captain oí the vessel refused to deliver the stone on its arrival unless paid freight for a full cargo, the shipper, having paid under protest, may recover the excess, for the payment was coerced and not voluntary.</p>

Appeal by the defendant, the Fifth Avenue Coach Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 13th day of May, 1908, upon the verdict of a jury.

<p>Libel—pleading — special damage — publication not relating to plaintiff.</p> <p>Where a publication is not libelous per se, the plaintiff must allege special damage or the complaint is demurrable. ’</p> <p>The demurrer may be taken on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Where the complaint alleges that the plaintiff for more than three years preceding the publication of the article had been a member in good standing of the telegraphers’ union and that he had not for over nine years been in the employ of the Western Union Telegraph Company, but the article related to a person of the same name as the plaintiff, who was described as a "non-union telegraph operator ” in the employ of the Western Union Telegraph Company, the com plaint shows on its face that the libel was not published of and concerning the plaintiff and a demurrer thereto should be sustained.</p> <p>Woodward and Gaynor, JJ., concurred on the sole ground that the publication was not libelous.</p>

Appeal by the defendant, George F. Johnson, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of February, 1908.

Appeal by the defendant, Andreas Fox, as executor, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 15th day of July, 1908, denying the defendant’s motion for a retaxation of costs.

Appeals by the plaintiff, August Bohnhoff, in one case, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 16th day of July, 1908, as resettled by an order entered on the 14th day of September, 1908, setting aside the service of an alleged supplemental summons upon the defendant Fischer, and in the other case from an order entered in said cleric’s office on the 16th day of July,…

Appeal by the plaintiff, James A. Tedford, 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 July, 1908, canceling a certificate of the clerk attached to papers on appeal from an order opening the default of the defendant herein.

Appeal by the plaintiff, Joseph E. Schwab, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 30th day of June, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term, overruling the plaintiff’s demurrer to certain defenses contained in the answer.

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 26th day of October, 1907, upon the verdict of a jury for $7,150, and also from an order entered in said clerk’s office on the 28th day of October, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Rew York City Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 11th day of February, 1908, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 10th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, John R. liegeman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1908, dismissing writs of habeas corpus and certiorari and remanding the relator to custody.

Appeal by The People of the State 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 20th day of February, 1908, sustaining writs of habeas corpus and certiorari and discharging the relator from custody.

<p>Appeal by the defendant, the Cananea Consolidated Copper Company, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 6th day of November, 1908, denying the said defendant’s motion to sti-ike the case from the calendar.</p>

Appeal by the defendant, Deutscher Krieger Bund ¡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 14th day of July, 1908, directing the issuance of a peremptory writ of mandamus, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 6th day of December, 1907, granting an alternative writ of mandamus, and an…

Appeal by the defendant, Esther Schaan, 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 10th day of March, 1908, reversing a judgment of the Municipal Court of the city of New York in favor of the defendant and directing a new trial.

Appeal by the defendant, Joseph J. Asch, from a judgment of the Supreme Court in favor of the plaintiff, entered iu the office of the clerk of the county of New York on the lOtli day of March, 1908, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 12th day of March, 1908, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, James M. Curran, 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 21st day of May, 1908, upon the decision of the court, rendered after a trial at the ¡New York Special Term, overruling the defendant’s demurrer.</p>

Appeal by the plaintiff, Isidore Londner, from portions 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 24th day of March, 1903, upon the decision of the court rendered after a trial at the New York Special Term adjudging a mortgage held by the defendant, the State Bank, to he prior and paramount to a mortgage held by the plaintiff.

Appeal by the plaintiff, Samuel Biker, Jr., as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 25th day of May, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.

<p>Tort — negligence — injury by elevator res ipsa loquitur — erroneous charge.</p> <p>The rule of res ipsa loquitur cannot be applied where no negligence on the part of the defendant is shown by direct evidence and it is apparent that there may have been causes for the accident other than the defendant's negligence.</p> <p>Thus, where a steamfitter engaged in placing pipes in a department store was struck by a traveling sheave owing to the starting of one of several elevators in the building, and there is no evidence showing how or by whom the elevator was started, nor any claim that it was defective, and the employees of another contractor were at the time engaged in malting alterations to elevators in the building it is error to charge that the doctrine of res ipsa loquitur applies.</p> <p>So, too, under the circumstances, it was error to refuse to charge that if on all the evidence the actual cause of the accident was not ascertainable by the jury, except as a matter of conjecture and surmise, the defendant was entitled to a verdict.</p> <p>Laughlin, J., dissented.</p>

<p>Appeal by the plaintiff, Albert H. Woods, 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 10th day of April, 1908, reversing a judgment of the City Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said City Court on the 21st day of Hovember, 1907, upon the verdict of a jury rendered by direction of the court, and dismissing the complaint herein.</p>

<p>Master and. servant — negligence—injury by cable railway — duty of master to inspect — facts raising question for juyy.</p> <p>It is the duty of an employer to use reasonable, care to furnish suitable tools, appliances and machinery and to keep them in repair so that his employees may not be exposed to unnecessary peril. This includes the duty properly to inspect the appliances for the purpose of discovering defects which may arise from or during use.</p> <p>While an employee must show affirmatively that the negligence of the employer was the sole cause of an injury, this need not be by direct and positive evidence, hut indirectly by proof of circumstances from which inferences may be drawn that the principal and essential facts exist.</p> <p>When from the evidence two inferences can he drawn, one supporting and the other destroying the alleged cause of action, it is for the jury to draw the inference.</p> <p>Where a foreman stationed at the foot of an inclined cable railway was injured by a brace on a descending car, which was bent out of its proper position, the defect being apparent upon inspection, and it is probable that the bending of the brace could not have taken place either during the descent of the car or before the descent commenced, it is for the jury to say whether the defendant had failed in its duty to inspect the car before allowing it to he used.</p> <p>Patterson, P. J., and Laughlin, J., dissented.</p>

• Appeal by the defendants, the Thompson-Starrett Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of March, 1908, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the plaintiff, William Harmon Black, as receiver, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of April, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Brodie L. Duke, 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 2d day of Decernher, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, J. Quintus Cohen, as trustee, 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 19 th day of October, 1908, directing that the equitable issues raised by the counterclaims in the answer and the reply thereto be first tried at SpecialTerm, and until such trial staying the trial of the common law issues.

Appeal by the plaintiff, J. Quintus Cohen, as trustee, etc., from an order of the Supreme Cqurt, 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, denying the plaintiff’s motion to strike the case from the Special Term calendar.

Appeal by the plaintiffs, Robert B. Hirsch and others, copartners, etc., from an interlocutory judgment of the Supreme Court in favor of the defendants Ferguson, entered in the office of the clerk of the county of New York on the 20th day of May, 1908, upon the decision of the court, rendered after‘a trial at the New York Special Term, sustaining the said defendants’ demurrer to the complaint.

Appeal by the plaintiff, Mary D. Gegan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of April, 1908, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, Auguste F. Klug and another, as executors, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer to the amended complaint.

Appeal by the plaintiff, Abraham Schneider,, as sole surviving partner, etc., from an interlocutory judgmentof 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 July, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrers to the amended complaint upon the grdund that it does not state facts sufficient to constitute a cause of…

Cross-appeals by the plaintiff, Julia K. Simpson, and by the defendants, Isaac Simpson and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of June, 1908, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, William A. Milliken, 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 October, 1908, denying the plaintiff’s motion for judgment upon the pleadings.

Appeal by the defendants, Abraham Rothstein and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of March, 1908, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by Mortimer E. Joiner from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of August, 1908, as directs him to pay to the committee of the estate of Louisa Malcom Stenton the sum of $250.

Appeal by the petitioner, Maynard H. Clement, as State Commissioner of Excise, 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 April, 1908, denying a motion to revoke and cancel a liquor tax certificate.

Appeal by the plaintiff, George L. Hooley, as trustee, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 6th day of June, 1907, upon the verdict of a jury rendered by direction of the court.

<p>Will—burden of proof in action to invalidate will — issues for jury — review of verdict — facts not establishing testamentary incapacity or . undue influence — trial—misconduct of counsel.</p> <p>In an action brought under section 2653a of the Code of Civil Procedure attacking the validity of a will admitted to probate, the burden of proof rests upon the attacking party.</p> <p>The rule that so long as a question of fact exists, it is for the jury and not for the court, obtains in an action to determine the_validity of a will. But as wills are not to be set aside by juries except for the gravest reasons, it is the duty of the Appellate Division to review the evidence to determine whether the verdict is supported thereby or is contrary to the weight thereof.</p> <p>In such action it appeared that the testator had been long separated from his wife and bad lived in meretricious relations with a woman whom he married a year after the death of his wife. He left her his entire property, to the exclusion of two daughters. There was no direct evidence of undue influence or lack of mental capacity other than the fact that the testator had been addicted to the use of intoxicants. On all the evidence, held, that a verdict finding the will invalid was against the weight of evidence.</p> <p>The fact that a man leaves his property by will to his mistress is not per se ground for declaring the disposition invalid, especially so where the meretricious relation was changed to a legitimate one when the obstacle to marriage was removed.</p> <p>Undue influence not amounting to physical duress may be shown by circumstantial evidence. It must be such influence as overpowers the volition of the testator and substitutes that of the person exercising the influence. The fact that a will is the result of,affection or gratitude .or legitimate persuasion does not establish undue influence</p> <p>A testator of sound and disposing mind and not governed by undue influence has a right to dispose of his property by will as he pleases,</p> <p>In such action the court should unhesitatingly set aside a verdict where it is against the weight of evidence even though it was not error to submit the issues to the jury.</p> <p>The practice of bringing evidence before the jury under the guise of arguing upon its admissibility and of summing up throughout the trial, discountenanced.</p>

Appeal by the defendants, Percival Kuhne and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of January, 1908, upon the verdict of a jury ; also from an order entered in said clerk’s office on the 15tli day of January, 1908, which order was resettled and re-entered on the 31st day of January, 1908, denying the said defendants’ motion for a new trial made upoii the minutes,…

<p>Appeal by the relator, M. Wineburgh Advertising Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 12th day of October, 1908, denying the relator’s application for a perem tory writ of mandamus or for an alternative writ of mandamus.</p>

Appeal by the petitioner, The O. J. Gude Company, N. Y., 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, denying the petitioner’s motion for a peremptory writ of mandamus.

<p>Motion by the respondents, William R. Willcox and others, as commissioners, etc-., to vacate an order of the Supreme Court, made at the New York Special Term and entered in' the office of the clerk of the county of New York on the 11th day of November,. 1908, directing the issuance of a writ of certiorari and to supersede or quash said writ under section 1348 of the Code of Civil Procedure.</p>

Appeal by the defendants, Frederic A. Oatman and another, doing business as the Mercantile Warehouse Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 12th day of December, 1907, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the plaintiff, Leora B. de Lamoutte, 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 15th day of October, 1908, denying the plaintiff’s motion to resettle a decree of separation theretofore entered herein.

Appeal by the defendant,- Lewis J. Morrison, 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 4th day of June, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.

Appeal by the defendants, Leo O. Dessar and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of June, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, The Hew York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 27th day of January, 1908, upon the verdict of a jury for $3,000, 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.

Appeal by the plaintiff, Margaret Peters, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of. January, 1908, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 18th day of February, 1908, denying - the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, John Peirce and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 11th day of May, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.

<p>Judgment — bankruptcy — discharge of partner — cancellation of judgment on firm debt.</p> <p>Where a partner was not served in an action against his firm and no individual judgment was entered against him he is not entitled to a cancellation of the judgment on his discharge in bankruptcy where there was no adjudication in that proceeding as to the partnership debt.</p>

Appeal by the defendant, Levi 0. Weir, as president, etc., 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 26tli day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes in an action to recover damages for conversion by the defendant of certain…

Appeal by the defendant, the American Sight Seeing Coach 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 30th day of March, 1908, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 6th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Gorham Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of July, 1908, vacating an order requiring the plaintiff to appear before a referee and submit to an examination before trial.

Appeal by the plaintiff, William Carter, and by the defendant, the Builders’ Construction 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 2d day of October, 1908, in so far as such order grants a motion made by the defendants Holl by directing a referee appointed under a judgment of foreclosure and sale to amend his advertised notice of a proposed second sale of the…

Appeal by the defendant, Michael Fuchs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Flew York on the 22d day of October, 1907, upon the verdict of a jury for $3,500, and also from an order bearing date the 3d day of December, 1907, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioners, Isidor E. Eubenstein 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 Mew York on the 12th day of May, 1908, denying the petitioners’ motion for a peremptory writ of mandamus.

<p>Appeal by the defendant, the Bankers’ Life Insurance Company of the City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the. 15th day of May, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to a separate' defense contained in the answer.</p>

<p>Insurance — incorporation of stock company — subscription to stock not prerequisite — receiver —right to counterclaim for unpaid stock subscription — agreement to subscribe not enforcible.</p> <p>As the Insurance Law (§ 110) does not require the papers filed on the organization of a stock insurance company to embody or to be accompanied by any subscription for the capital stock, and as section 112 provides that upon filing the specified papers such corporation may open its books for stock subscriptions and keep them open until the full amount is subscribed, the corporation is created before subscriptions to the capital stock arc invited.</p> <p>Hence, subscriptions to the stock of such corporation are governed by section 41 of the Stock Corporation Law, and are void if the ten per cent required by said section be not paid.</p> <p>As, by virtue of the statutes, the receiver of a corporation appointed on its voluntary dissolution is authorized and directed to bring action to recover unpaid stock subscriptions unless the subscriber be insolvent, it seems that he may counterclaim for unpaid subscriptions when sued by the subscriber for services rendered to the corporation.</p> <p>But a counterclaim for the full amount of the subscription to the stock of an insurance company is subject to demurrer when it appears that an uncollectible check was given in payment of the ten per cent required by section 41 of the Stock Corporation Law, and no facts tending to show a ratification of the subscription are pleaded and the subscription in form was an attempted subscription to an insurance corporation yet to be formed. A mere agreement to subscribe is not enforcible as a subscription.</p>

<p>Beal property — vendor and purchaser — when title marketable — encroachment on public street — right gained by adverse user — pleading — demurrer — defense showing marketable title.</p> <p>In a suit to recover earnest money paid on the execution of a contract to sell land upon the ground that the title was unmarketable by reason of an encroachment of seven inches upon the public street, it is a good defense to allege that the front wall of the building does not encroach upon the street except at the basement front or water table projection, which is nota necessary part of the front wall, and easily removable without injury to the building at a nominal expense, that such encroachment is customary in the case of similar buildings in the city and does not constitute an incumbrance or render the title unmarketable and that the encroachment has existed for thirty-eight years during which time no action or proceeding has been instituted by the city to remove the same.</p> <p>Where a separate defense contains no denial of. the allegations of the complaint, the latter stand admitted for the purpose of determining the sufficiency of the defense.</p> <p>The right to maintain an encroachment upon the public street can only be questioned by adjoining or adjacent owners, or by the municipal authorities.</p> <p>A prescriptive right to maintain such encroachment as against adjoining or adjacent owners may be obtained by twenty years’ adverse user.</p> <p>As by the amendment to section 471 of the Consolidation Act made by chapter 646 of the Laws of 1899, the front wall of any building standing in the county of New York when said act took effect and not extending more than ten inches in the street, is not removable unless an action or proceeding was instituted by the city within the period of one year from the passage of the act, an encroachment of seven inches existing prior to the passage of said statute and not attacked by action or proceeding on behalf &f the city within the time limited, is not an incumbrance which renders the title unmarketable if a right to maintain the same has also presumably been obtained against adjoining owners by over twenty years’ adverse user.</p> <p>Where the contract for the sale of such encroaching building provides that the sale shall be subject to an encroachment on a public street not to exceed one inch, the provision must be deemed to relate only to an unlawful encroachment which the public authorities could remove.</p> <p>Houghton, J., dissented, with opinion.</p>

Appeal by the plaintiff, Ostinelli F. Page, from a judgment of the Supreme Court in favor of the defendant, the American and British Manufacturing Company, entered in the office of the clerk of the county of New York on the 12th day of June, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendant’s demurrer to the complaint.

<p>Appeal by the defendant, Norman Hubbard, Jr., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of July, 1908, as resettled.</p>

Appeal by tlie plaintiff, Kate Rosenbaum, from an interlocutory judgment of the Supreme Court in favor of the defendant Max Bleeher, entered in the office of the clerk of the county of New York on the 2d 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 a separate defense contained in the answer of the said defendant Bleeher.

Appeal by the plaintiff, Albin Boenhardt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 7th day of April, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

<p>Railroad — negligence — injury by fall on icy platform. — facts not showing negligence.</p> <p>Action to recover for personal injuries. The plaintiff, a woman sixty-three "years of age, had for some years suffered from the results of a fracture of the hip which obliged her to use crutches. When she alighted from the defendant’s train at a station she was met by her brother and, although he was aiding her, she slipped and fell on the platform at a place where it was covered with snow and ice. There was no roof to the platform, it was freezing weather, and it appeared that it had been snowing during the day and was snowing at the time; that the platform had been cleaned during the morning, hut in the afternoon had been again covered with a fall of snow which at the time of the accident men were engaged in removing from the platform, though they had not yet reached the point where plaintiff fell. Many persons used the platform daily. On all the evidence, held, that a verdict for the plaintiff was against the weight of evidence.</p> <p>Patterson, P. J., dissented.</p>

<p>Discovery— examination of party before trial — when motion premature.</p> <p>Where a complaint asking an accounting by an agent has been served and a demurrer thereto is pending so that as yet there are no issues of fact to be tried, the plaintiff is not entitled to examine the defendant before trial, even though it be alleged that the demurrer was interposed for purposes of delay.</p>

Appeal by the Metropolitan Museum of Art from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 19th day of September, 1907, affirming an order assessing a tax upon a legacy to the Metropolitan Museum of Art.

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of Hew York on the 13th day of February, 1908, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 5th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Henry Eugene Davies, from apart, and by the defendants, Martha Swift Hollister and another, from the Whole of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 12th day of May, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, construing the will of Henry E. Davies, deceased.

Appeal by the defendant, the New York City Interborough Bailway 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 November 1908, denying the defendant’s motion for a resettlement of the case on appeal herein.

<p>Crime—disorderly conduct— Consolidation Act, section 1459, construed — acts constituting disorderly conduct — evidence — facts affecting punishment only.</p> <p>In section 1459 of the Consolidation Act, permitting a magistrate to cause a person to be brought before him when it is shown by oath that he has “ been guilty of any such disorderly conduct as in the opinion of such magistrate tends to a breach of the peace,” the word “such” does not refer exclusively to the disorderly acts specified in the preceding section, 1458, but means any disorderly conduct such as. in the opinion of such magistrate, tends to a breach of the peace. The word “-such” is correlative with “as.”</p> <p>Persons who, pretending that they had money which they wished changed, exhibited to the complainant a package supposed to contain money, with a request that he put his money and watch and chain into the package, are properly convicted of disorderly conduct under said section.</p> <p>A magistrate may receive the unsworn statement of a police officer that the portrait of one accused of crime is in the Rogues’ Gallery, where it is admitted solely for the purpose of determining the sentence to be imposed, and not as bearing upon the defendant’s guilt.</p>

Appeal by the defendant, the National Ventilating 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 21st day of August, 1908, granting a temporary injunction.

<p>Contract — work and materials — pleading — election between action on contract and on quantum meruit.</p> <p>The complaint in an action on contract need not state whether it is oral or written, but general allegations of the contract, the consideration, performance, breach and indebtedness are sufficient.</p> <p>Under a declaration on a special contract for services, if the proofs fail to establish the same, but do show that services were rendered, a recovery may be had upon a quantum, meruit. So, too, in an action on quantum meruit for services, a specific contract fixing the price may be proved to show the value of the services.</p> <p>Where an express contract not under seal has been fully performed, except the payment of the consideration, a plaintiff need not declare specially on the contract, but may recover upon the implied promise of the defendant to pay the stipulated price.</p> <p>A complaint in an action for services or materials furnished, or for goods sold, L which alleges both value and agreed price, does not state two causes of action, and even where it contains two counts for the same services, one on special contract and the other on quantum, meruit, the plaintiff should not be compelled in advance of trial to elect upon which count he will proceed.</p> <p>Where a complaint pleads an agreed price, an allegation of value will be treated as surplusage rather than as an attempt to state two causes of action.</p> <p>So, where a complaint sets forth three separate causes of action for work performed and materials furnished “of the fair and reasonable value and at agreed prices ” aggregating a specified sum, and plaintiff in a subsequent bill of particulars sets forth that a part of the amount claimed in the first and second causes of action is due by reason of a written contract, he cannot be compelled on the opening of the trial to elect as to whether he will proceed on quantum meruit or special contract. Having been obliged to do so and, therefore, being unable to give his evidence, a judgment dismissing the complaint as to the first two causes of action will be reversed, as well as a judgment in favor of the defendant on the third cause of action.</p>

<p>Appeal by the relator, Lemuel G. Burr, 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 August, 1908, denying the relator’s motion for a writ of prohibition.</p>

Appeal by the plaintiff, Paul Schwarz, 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 1st day of December, 1908, vacating an order for the examination of a witness. Action to partition real estate.

Appeal by the defendants, Annie Fox and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of January, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the 31st day of December, 1907, denying the defendants’ motion for a new trial upon the. ground of surprise and newly-discovered…

<p>Estoppel by silence — surrogate — rehearing on issue of equitable estoppel.</p> <p>Appeal from a decree of the surrogate overruling the objection of a creditor that the executor as against him was in equity estopped from asserting a personal claim against the.estate. It appeared that the executor, father of the decedent, and having a personal claim against him, had during the lifetime of the decedent and in his presence urged the creditor to forbear the enforcement of a claim against the son’s business, but kept silent as to his own claim when the creditor said that if the son’s statement as to the condition of his accounts were verified when his own secretary went over the books he might forbear. The accounts examined by the secretary and put in evidence before the surrogate did not show whether they listed the personal debts of the decedent in addition to those incurred in his business. Held, that a rehearing of the issue before the surrogate should be ordered.</p> <p>An estoppel may arise from silence as well as words, as where there is a duty to speak and the party upon whom the duty rests has an opportunity to speak, and knowing the circumstances requiring him to speak, keeps silent.</p>

Appeal by the defendant, the Brooklyn Heights Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of May, 1908, granting the plaintiff’s motion for leave to serve an amended complaint.

Motion to amend an order of the Appellate Division reversing a judgment in favor of the plaintiff and an order denying a motion for a new trial made upon the minutes. (See 127 App. Div. 165.)

Appeal by the plaintiff, Hugh Boyle, from a judgment of the Supreme Court in favor of the defendant McNulty Brothers, entered in the office of the clerk of the county of Queens on the 23d day of May, 1908, upon an order made at the Queens County Trial Term and entered in said clerk’s office on the 20th day of May, 1908, setting aside the verdict of a jury in favor of the plaintiff for $5,000, and dismissing the complaint as to the said defendant McNulty Brothers; and also…

<p>Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 1st day of February, 1908, upon the verdict of a jury for $2,400, and also from an order entered in said clerk’s office on the 8th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was to recover damages for injuries to the plaintiff’s woodland by fire caused by the engines of the defendant.</p>

<p>Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court o"f the county of Nassau, entered in said Surrogate’s Court on the 15tli day of July, 1908.</p>

<p>Watercourses — negligence — discharge of water from storage dam in time of flood — when owner not negligent.</p> <p>A water company, maintaining a storage dam equipped with a spillway which can be raised or lowered, has a right to maintain the spillway during a rainstorm at a height sufficient to accumulate water up to the reasonable capacity of the dam, and is not bound to anticipate that the rain will continue and be so severe that subsequently the spillway must be lowered to prevent the dam from being washed out.</p> <p>It is not negligent to equip a dam with a movable spillway in order to regulate the amount of water stored up and to discharge it in case it becomes too high.</p> <p>Hence, a lower landowner, whose foundations were injured by the lowering of such spillway when a sudden flood which could not have been anticipated made the act necessary in order to preserve the dam itself, cannot recover upon the ground that the owner was negligent.</p>

Appeal by the defendant, The Hayes Machine 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 30th day of June, 1908.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 30th day of March, 1908, upon the verdict of a jury for $1,700, and also from an order entered in said clerk’s office on the 6th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Samuel Donaldson, 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 6th day of March, 1908, 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.

Motion by the plaintiff, Vincent Feola, 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 at the close of the plaintiff’s evidence upon a trial at the Kings County Trial Term in February, 1908.

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff against the said defendant, entered in the office of the clerk of the county of Kings on the 28th day of April, T908, upon the verdict of a jury for $6,250, and also from an order entered in said clerk’s office on the 28th day of May, 1908, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Simon Ginsburg and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s «office on the 24th day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the A. L. Barber Asphalt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Richmond on the 8th day of April, 1908, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 8th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Nicholas La Forge and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 21st day of March, 1908, upon the decision of the court, rendered after a trial at the Richmond Special Term, dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

Appeal by the plaintiff, Edsall W. Drew, from a judgment of the County Court of Orange county in favor of the defendant, entered in the office of the clerk of said county on the 26th day of June, 1908, upon an order bearing date the 11th day of June, 1908, and entered in said clerk’s office, reversing a judgment of the Justice’s Court of the town of Warwick, in said county, with notice of an intention to-bring up for review upon such appeal the said order of reversal.

Appeal by the defendants, Morris Gordon and another, 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 21th day of September, 1908, granting the plaintiff’s motion for an examination of the defendants before trial and for an inspection of their books.

Appeal by the plaintiff, The People of the State of New York, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 13th day of August, 1908, sustaining the defendants’ demurrers to an indictment of the Kings county grand jury.

Appeal by the plaintiff, Elijah Schoonmaker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 16th day of March, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term, a verdict in favor of the plaintiff having been theretofore rendered by the jury and set aside by the court, and also from an order entered in said clerk’s office on the 16th…

<p>Appeal by the plaintiff, Max Sell, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 5th day of February, 1908, dismissing the complaint.</p>

Appeal by the relator, the Consolidated Water Company of Suburban New York, from so much of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of July, 1908, as denies the relator’s application to cancel an assessment.

<p>Certiorari issued out of the Supreme Court and attested on the 12th day of October, 1908, directed to George G. Raymond, mayor, and others, aldermen, constituting the common council of the city of New Rochelle, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular the proceedings had in relation to the removal of the relators from the board of public works of the city of New Rochelle by the common council of that city.</p>

<p>Appeal by the defendant, the J. 0. Vreeland Building 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 25th day of Hay, 1908, upon the decision of the court rendered after a trial at the Richmond Special Term.</p>

Appeal by the defendant, Louis Levinson, from a judgment of the ¡Municipal Court of the city of ¡¡New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 17tli day of April, 1908, after a trial without a jury.

Appeal by the defendants, Joseph Cohen and others, from a final order of the Municipal Court, rendered on the 20th day of March, 1908, in summary proceedings.

Appeal by the relator, George Dawkins, 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 5th day of May, 1908, dismissing a writ of certiorari to the agent and warden of the State prison at Sing Sing, to inquire into the cause of detention of the relator and remanding him to custody.

Appeal by the defendant, the Asphalt Ready Roofing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 14th day of November, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 14th day of November,-1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Master and servant — negligence —injury by collapse of roof. '</p> <p>A master is liable for the negligence of his superintendent in ordering employees to place heavy coping stones on a roof under construction by another contractor where the superintendent had been warned that it was not safe to place them there owing to the fact that the roof was not shored up.</p> <p>Evidence examined, and held, to warrant a finding by the jury that the act of the foreman in directing the placing of the stones was a detail of superintendence.</p>

Appeal,by the relator, John J. A. Rogers, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of June, 1908.

Appeal by the defendants, George Jacobson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st 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 defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Frieda Hart and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of February, 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 10th day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Joseph J. Baker and another, from a judgment of the County Court of Kings county in favor of the plaintiffs, entered in the office of the clerk of said county on the 15th day of April, 1908, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the plaintiffs, Thomas Bascombe and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bichmond on the 24th day of March, 1908, upon the decision of the court, rendered after a trial at the Bichmond Special Term, dismissing the complaint in a suit brought to establish that a deed is a mortgage.

Appeal by the plaintiffs, Thomas Bascombe and others, from an order of the Supreme Court, made at the Richmond Special Term, presided over by the justice who held the Special Term for the trial of issues herein, entered in the office of the clerk of the county of Richmond on the 6th day of April, 1908, denying the plaintiffs’ motion to vacate and set aside the findings of fact theretofore made by the court.

Appeal by the plaintiffs, John P. Conselyea and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 24th 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 3d day of February, 1908, denying the plaintiffs’ motion to strike from said judgment the sum of $250, additional allowance of costs, and in…

<p>Appeal by the relator, Angelo Lanci, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of May, 1908.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 18th day of May, 1908.

Appeal by the plaintiff, Dora Laschinsky, from an order of the Municipal Court of the city of Hew York, borough of Brooklyn, entered in the office of the clerk of said court on the 17th day of April, 1908, setting aside a verdict rendered in her favor.

Appeal by the plaintiff, Isack Heilbrunn, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 21st day of September, 1908.

<p>Landlord and tenant — tenant’s covenant to repair — when absolute.</p> <p>Where a lease provides that during the term and all renewals “the lessee will make all repairs and will surrender the premises in good order at the end of the term ” the covenant to repair is absolute and the tenant is liable to the landlord for the expense of repairing the walls and roof as required by the municipal building department, in order to insure the safety of the building, no matter what the cause of the defect.</p>

<p>Appeal by the defendant, The City of Mount Vernon, 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 21st day of February, 1908, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 21st day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Bills and notes — banks — acceptance of check irrevocable — effect of subsequent judgment establishing claim to drawer’s account.</p> <p>Where a bank upon which a check was drawn accepted the same on presentation, marked it paid, credited the amount to the account of the holder’s agent, and charged the amount against the drawer, the bank became the holder’s debtor for the amount of the check, and thereafter was powerless to rescind the acceptance and recredit the amount to the drawer’s account, although notified that the drawer’s deposit was claimed by a third person.</p> <p>Although the person claiming the drawer’s deposit subsequently commenced an action to establish his claim, a judgment to that effect is no bar to an action by the holder against the acceptor to recover the amount placed to the holder’s credit.</p> <p>This is true, although the holder was made defendant in said action under an allegation that it claimed to have an interest in the fund on deposit but without attacking the good faith of the holder, for as the credit for the amount of the check belonged to the holder as a matter of law upon the acceptance, the amount was no longer part of the drawer’s deposit and the holder was not notified by the complaint that an attack would be made upon the fairness or validity of the transaction.</p>

Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiif, entered in the office of the clerk of the county of Westchester on the 13tli day of November, 1907, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 22d day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Harris Siegel, 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 28th day of May, 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 15 th day of May, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, The City of New York and others, 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 24th day of July, 1908, granting the relator’s application for a peremptory writ of mandamus.

Appeal by the plaintiff, George E. Swanton, 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 3d day of June, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence upon a trial at the Richmond Trial Term.

Appeal by the defendant, Bonet Saokin, sued herein as Barnett Saokin, 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 26th day of March, 1908, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Josephine D. Emrich, 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 13th day of October, 1908, denying the plaintiff’s motion to continue an in junction pendente lite.

<p>Appeals by the defendant, The City of New York, from two judgments of the Municipal Court of the city of New York in favor of the plaintiff.</p>

Appeal by the defendant, Herman L. Flam, individually, etc., from a judgment of the Municipal Court of the city of New York in favor of the plaintiff. The action was replevin of 15 barrels of flour.

Appeal by the defendant, John F. Fraas, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of April, 1908, upon the verdict of a jury for $8,000, 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 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 25th day of March, 1908, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 15th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>•Waters and watercourses — public rights in navigable waters — grant of fishery by British crown — constitutional law.—-right of Federal government to improve navigable waters — construction of public grants.</p> <p>The title to navigable waters is held by the sovereign, not of individual right, but in trust for the people at large, which principle obtained in England subsequent to Magna Charta.</p> <p>Although a grant from the British crown of lands under a navigable arm of the sea conveyed as appurtenant theieto all and every right of “fishing, fowling, hunting, hawking,” etc., the grantee and bis successors hold subject to the public right of navigation and to the right of the government to improve navigation by deepening the channel under the authority of the interstate and foreign commerce clause of the Federal Constitution.</p> <p>By a grant of such right of fishery the sovereign did not give up all other sovereign rights inconsistent therewith, for public grants are strictly construed against the grantee.</p> <p>It follows that one who has leased a right to plant oysters in such navigable waters from one having a right of fishery granted by the British crown has no constitutional right to due compensation for injury to the oysters caused by the improvement of the channel by the Federal authorities.</p> <p>It seems, that such lessee is entitled to a reasonable opportunity to remove the oysters.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 4th day of August, 1908, directed to Theodore A. Bingham, as police commissioner of the police department of the city of H ew York, commanding him to certify and return to the office of the clerk of the county of Queens all and singular his proceedings had in finding the relator guilty of neglect of duty and reducing him from the rank of sergeant to that of patrolman. '</p>

<p>Process — service by publication — sufficiency of moving affidavit.</p> <p>An affidavit stating that non-resident defendants on whom service by publication is desired reside in certain distant States, states facts sufficient to enable the judge to draw the conclusion that they cannot with due diligence be served personally in this State.</p> <p>It seems, that such affidavit might not be sufficient where the defendant resides in an adjoining State, the people of which constantly come into this State for business purposes.</p> <p>An affidavit for an order for service by publication should not state the conclusion that the plaintiff will be unable after due diligence to make personal service within the State, but should only' state facts from which such conclusion may be drawn.</p>

Appeal by the defendant, the State Realty and Mortgage 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 June, 1908, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

Appeal by the plaintiff, John Isley, 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 May, 1908. The motion was made by the defendant the Brooklyn and Long Island Realty Company.

Appeal by Sadie Ackerman, the contestant, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 14th day of September, 1907, admitting to probaté an instrument purporting to be the last will and testament of Michael Ackerman, deceased.

Appeal by Mannie Y. Boosevelt and another from an order of the Supreme Court, made at the Bockland Special Term and entered in the office of the clerk of the county of Westchester on the 27th day of October, 1908, directing an inquiry into the present mental condition of Blanche L. Andrews, granted on the motion of her husband.

Appeal by Frederick H. Johnson, individually and as executor, etc., and others, from a decree of the Surrogate’s Court of the' county of Kings, entered in said Surrogate's Court on the 31st day of December, 1907, settling the accounts of the executrix of Anne Marchant Stacy, deceased, and also from a supplemental decree and an amendatory supplemental decree entered herein on the 10th day of March, 1908, and the 1st day of April, 1908, respectively.

Appeal by the plaintiff, Rosie Heimbinder, from two orders of the Municipal Court of the city of Hew York, borough of Brooklyn, rendered on the 22d and 30th days of September, 1908, respectively.

Appeal bj Edwin Hawley from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 3d day of June, 1908, confirming the decision and certificate of commissioners appointed to determine upon the necessity of a proposed public highway and assess the damages by reason of the opening thereof.

Appeal by the defendant, the Union Railway Company of Hew York City, 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 28th day of March, 1908, upon the verdict of a jury for $6,'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 defendant, Isidor Wormser, Jr., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 15th day of ¡November, 1907, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 29th day of, ¡November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Alonzo P. Meyer and another, as executors, etc., from, a judgment of the Supreme Court in favor of the plaintiff, entered in -the office of the clerk of the county of Kings on the 12th day of May, 1908, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, Margaretha Manneschmidt, from n judgment of the Supreme Court in favor of the plaintiff and the defendants McKenna and Wood, entered in the office of the clerk of the county of Kings on the 13th day of June, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term. The action was to foreclose a mechanic’s lien for labor and material in the erection of a building.

<p>Appeal by the defendant, Rahum J. Shatzkin, from an order of theRupreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of April, 1908, denying the said defendant’s motion to strike out certain allegations of the complaint.</p>

Appeal by the defendant, Nahum J. Shatzkin, 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 16th day of July, 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 complaint.

Appeal by the defendant, the Stanley Hod Elevator Company, 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 29th day of February, 1908, upon the verdict of a jury for $11,500, 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, John W. Hallett, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of February, 1908, 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 February, 1908, directing the dismissal of the complaint.

<p>Court — stare decisis — Municipal Court of New York— costs.</p> <p>Where the evidence on a new trial is substantially the same as on the former trial, the Appellate Division will adhere to its prior decision.</p> <p>By virtue of section 333 of the Municipal Court Act, a defendant who has not filed a verified pleading or a wn-itten notice of appearance is not entitled to tax costs on the dismissal of the complaint.</p>

Appeal by the plaintiffs, Samuel Love and others, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 8th day of May, 1908.

Appeal by the defendant, John Twiname, 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 1st day of June, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 10th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Joseph Huebscher, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 26th day of February, 1907, at the Queens County Trial Term.

<p>Will construed — real property—contingent remainders — vendor and purchaser — when owner cannot convey title in tee.</p> <p>Where a will devises lands to the testator’s wife for life and at her death to his children, equally, with a provision that “in case any of my said children shall have died leaving issue, the share of the child so dying shall descend to and vest in his or her issue and in case of the death of any child without leaving issue, his or her share shall descend to and vest in his or her surviving brothers and sisters,” although the lands vested in the testator’s children at Ms death, their title during the life of the life tenant is contingent, and liable to be divested, for if they die before her there is a contingent remainder in their issue, if any.</p> <p>Hence, as an owner can convey no better title than he has, one holding under a conveyance derived from the life tenant and the remaindermen cannot during the life of the former convey a marketable title in fee for he holds subject to the contingency aforesaid.</p> <p>Gaynor and Jenks, JJ., dissented, with opinion.</p>

' Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings County in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20tli day of March, 1908, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 6th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Samuel T. Hubbard 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 Queens on the 14th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of March, 1908, denying the defendants’ motion for a new'trial made upon the minutes.</p>

<p>Motion by the plaintiff, John Anderson, 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 at the close of plaintiff’s evidence upon a trial at the Kings County Trial Term in October, 1907.</p>

<p>Appeal by the defendant, James Taylor, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 28th day of July, 1908, and entered in the office of the clerk of the county of Kings, denying the defendant’s motion for a new trial upon the ground that the judgment was procured by perjured testimony of the plaintiff, and upon the grounds of fraud and newly-discovered evidence.</p>

Appeal by the defendant, Frank W. Boyer, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of July, 1908, appointing a receiver for the defendant, who had refused to pay alimony as directed by the judgment in an action for separation.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 3d day of December, 1907, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 23d day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Bernhart Carlsen, 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 January, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Clara Giltman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of January, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of January, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order of the Municipal Court of the city of Hew York, denying the defendant’s motion to open its default and the inquest taken thereupon and to set aside the judgment entered thereon, and also from such judgment in favor of the plaintiff, rendered on the 13th day of April, 1908.

<p>Municipal corporation—negligence — defective sidewalk—charge.</p> <p>Where a jury has been instructed that a municipality is not liable for personal injuries if caused by a condition of the street or sidewalk from which danger was not reasonably to be apprehended, it is not error to refuse to charge that if the jury find the difference in height between Belgian block and its foundation was not greater than three inches the city is not liable, for the jury were entitled to determine the liability of the defendant on the facts shown under the rule charged.</p> <p>Jenks and Gaynor, JJ., dissented.</p>

<p>Public health — sale of adulterated milk.</p> <p>One who sells milk containing more than eighty-eight per cent of water or fluids and less than twelve per cent of milk solids is liable for the penalty prescribed by the Agricultural Law.</p> <p>It is no defense that such milk was actually given by a cow, nor is the intent of the defendant material.</p>

Appeal by the plaintiff, Lorenzo Matrnsciello, 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 29th day of May, 1908, upon the dismissal of the complaint by direction of the court upon the pleadings at the Richmond Trial Term, and also from an order entered in said clerk’s office on the 29tli day of June, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Frederick Kelson Whitley, individually, and as executor, etc., and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of July, 1908, upon the decision of the court, rendered after atrial at the Kings County Special Term, overruling the defendants’ demurrer to the complaint.

Appeal by the defendant, Julius Weiss, from a judgment of the County Court of Kings county, rendered on the 22d day of July, 1907, convicting the defendant of the crime of grand larceny in the first degree, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William Bradley & Son, 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 3d day of March, .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 March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Frank H. Schiefner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 7th day of July, 1908, Upon the decision of the court rendered after a trial at the Nassau Special Term. ¡\ The judgment for the plaintiff is, as prayed for in the complaint, that the defendant holds certain lots of land in trust for the plaintiff, and that he convey the same to the plaintiff.

Appeal by the defendant, Henry Gr. Weil, 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 18th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Sam Wassevnian and another, 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 October, 1908, as resettled by an order bearing date the 14th day of October, 1908, and entered in said clerk’s office, striking a cause from the calendar of a Trial Term of the Supreme Court and requiring the plaintiffs to accept the defendants’ notice of trial for a…

Appeal by the defendant, the Helvetia-Swiss Fire Insurance Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the oifiee of the clerk of the county of Kings on the 13tli day of August, 1908, striking out as irrelevant an entire defense contained in the said defendant’s answer.

Appeal by the defendant, The United States Grand Lodge of The Order Brith Abraham, 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 9th day of December, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Trial Term.

<p>Appeal by the plaintiff, Saverio Gallo, 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 14th day of April, 1908 upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

Appeal by the plaintiff, Charles A. Satterly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 22d day of July, 1908, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.

<p>Appeal by the plaintiff, Christopher Staiger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 4th day of May, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial.</p>

<p>Eminent domain—review of award — certificate of commissioners that they struck out improper evidence — appeal — errors not justifying reversal.</p> <p>Where commissioners appointed to make awards on condemnation proceedings have personally viewed the premises, the mere fact that the awards were largely under the estimate of value given by the owner’s witnesses, and largely in excess of those of the condemnor, does not of itself require a reversal.</p> <p>Where the commissioners, having reserved a motion to strike out evidence establishing the cost of reproducing buildings and having made their awards, thereafter all certify that before so doing they granted the motion to strike out and disregarded the testimony, the evidence must be regarded as having been eliminated before the awards were made.</p> <p>In any event, even though the evidence was incompetent and was not stricken out, the Special Term cannot set aside the awards when there is nothing in the record to show that the evidence in any manner affected the action of the commissioners and the awards are supported by other competent evidence, including a personal view of the premises.</p> <p>An award by commissioners will not be set aside unless it affirmatively appear that they acted upon an erroneous principle; it is not enough that they may have so acted.</p> <p>Owing to the peculiar functions of such commissioners, combining those of court and jury, their award will not be set aside for the mere admission of improper testimony, unless it be shown to have affected the result and directly resulted in an unjust award.</p>

Appeal by Raniel J. Rooney and others from a portion of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of April, 1908, denying a motion to confirm the award and report of commissioners of appraisal herein as to two parcels of land and directing a new hearing before other commissioners.

<p>Exceptions by the plaintiff, Minnie Adlin, as executrix, etc., ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of the plaintiffs case upon a trial at the Kings County Trial Term in April, 1908.</p> <p>The action was to recover damages for the death of the plaintiffs intestate.</p>

<p>Principal and agent — broker’s action for commissions for obtaining building loan.</p> <p>A broker who, pursuant to the request of his principal, has procured a person ready to make a building loan to the principal, is entitled to recover his commissions, and the principal cannot object that the loan agreement submitted was “unreasonable and unconscionable” if the terms were such as are usual and necessary in building loans in order that the lender may not be wronged by bad work and material and by neglect to pay mechanics and materialmen</p>

Cross-appeals by the claimant, Augusta Johns, and by the defendants, The Village of Salamanca and another, from a final order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 18th day of January, 1908, affirming in part and disaffirming in part the report of commissioners appointed to ascertain damages herein.

Appeal by the plaintiff, Arthur A. W. Brewster, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of said county on the 12th day of August, 1908, reversing a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff entered on the 11th day of November, 1907, upon the verdict of a jury for $175.

Appeal by the defendant, The Village of Dresden, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tates on the 16th day of June, 1908, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Jacob W. Diehl and others, from a judgment of the Supreme Court in favor of the plaintiff and other persons in interest, entered in the office of the cleric of the county of Erie on the 21st day of November, 1907, upon the decision of the court rendered after a trial at the Erie Special Term.

<p>Deed.—conveyance to husband “ and his wife ” — tenancy by entirety— vendor and purchaser — tender of title by wife after husband’s death.</p> <p>A conveyance of lands to “ Ellsworth B. McArthur and his wife” creates a tenancy by the entirety even though the wife is not designated by her name, if there be no question as to her identity.</p> <p>One who during the lifetime of a husband and wife holding under such deed has contracted to buy the lands from them cannot reject a title tendered by the wife after the death of the husband on the ground that it is unmarketable, for on the death of the husband the wife took all as tenant by the entirety and may enforce the contract.</p>

Appeal by the plaintiff, Michael J. Beck, from a judgment of the County Court of Erie county in favor of the defendant, entered in the office of the clerk oE said county on the 20th day of March, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 13tli day of April, 1908, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Central New York Telephone and Telegraph Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 7th day of April, 1908, upon the decision of the court, rendered after a trial at the Onondaga Special Term, dismissing the complaint and vacating a temporary injunction herein, and also from an order entered in said clerk’s office on the same day granting the…

Appeal by the plaintiff, the Central New York Telephone and Telegraph Company, 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 Onondaga on the 25th day of March, 1908, upon the decision of the court rendered after a trial at the Onondaga Trial Term, a jury having been waived.

Appeal by the plaintiff, Emmons Howard, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 18th day of February, 1908, granting the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff and granting a new trial of the action.

Appeal by the defendant, the Eastman Kodak Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of June, 1908, upon the verdict of a jury for $7,974, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by tbe defendant, Jane Jones, from a judgment of the County Court of Wyoming county, rendered on tbe 30th day of March, 1908, convicting her of the crime of keeping a disorderly house.

Appeal by the defendant, the Iroquois China 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 27th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Sheldon Voorliees, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted by the court on a trial at the Cayuga Trial Term in May, 1908. On the 29th of June, 1905, one Eobinson, a freight brakeman in the employ of the defendant, was very seriously injured in the course of his service, and the injuries may be attributed to the negligence of the defendant.

Appeal by the defendant, the International Railway Company, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 3d day of March, 1908, upon the verdict of a jury for $575, and also from an order entered in said clerk’s office on the 6tli day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Will — probate — practice — jury trial — evidence — personal transactions of contestants with decedent.</p> <p>Where the Appellate Division is not satisfied with the result of a surrogate’s decree granting or denying probate, it will order a jury trial under section 2588 of the Code of Civil Procedure.</p> <p>Evidence resulting in a denial of probate by the surrogate on the ground of undue influence and lack of testamentary capacity examined and held, that a jury trial should be ordered, with costs to abide the event.</p> <p>On a proceeding to probate a second will revoking all prior wills, parties who are beneficiaries under b prior will and contest the probate of the second will, are incompetent to testify as 'to personal transactions with the decedent concerning its execution.</p>

Appeal by the defendant, Clinton A. Bills, from a judgment of the County Court of Herkimer county in favor of the plaintiff, rendered on the 12th day of January, 1905, convicting the defendant of the crime of rape in the second degree, and also from an order entered in the office of the clerk of the county of Herkimer on the 23d day of June, 1905, denying the defendant’s motion for a new trial.

<p>State — negligence — injury toy collapse of canal bridge — license allowing use of bridge toy railroad — when State cannot recover from railroad damages paid for its own negligence.</p> <p>The duty to keep a bridge over a State canal in safe condition for public travel rests primarily upon the State, and by virtue of the statute the State is liable for injuries resulting from its negligence in that respect.</p> <p>Although the State has licensed a street railroad company to lay its tracks over a canal bridge under a contract requiring the licensee to pay a proportion of the cost of maintenance and to he liable for “.all damages that may occur or arise either to the State or to individuals in consequence-of the constructiona and maintenance of said street railway, over and across said canal bridges and crossings,” the State having been compelled to pay for personal injuries received by a passenger on the cars of said railroad owing to the collapse of the bridge, cannot recover the damages so paid from the railroad. This, because the duty of keeping the bridge in proper condition for use rests upon the State irrespective of such license, and the latter should not be construed to mean that the railroad assumed liability for the negligence of the State.</p> <p>It seems, moreover, that an agreement assuming liability for the State’s negligence would be against public policy.</p>

Appeal by the plaintiff, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 18th day of September, 1908, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Rose 0. Seager, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 5 th day of February, 1907, upon a nonsuit granted by the court at the close of the plaintiffs case upon a trial at the Onondaga Trial Term.

<p>Appeal hy the plaintiffs, Amasa Hungerford and another, as qxecutors, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 13th day of April, 1908, upon the decision of the court, rendered after a trial at the Jefferson Special Term, dismissing the complaint upon the merits, and also from an order entered in slid clerk’s office on the 5tli day of June, 1907, discontinuing the action as to the defendant Goodwin M. Snow.</p>

Appeal by the defendants, The Pennsylvania Bailroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 11th day of May, 1907, upon the report of a referee.

Appeal by the plaintiff, Fred Emerson, from a judgment of the County Court of Tates county, entered in the office of the clerk of said county on the 2d day of October, 1908, reversing a judgment of the Justice’s Court in favor of plaintiff for $125 and costs.

Appeal by the defendant, Keuka College, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Yates on the 26tli day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying a motion for a new trial made upon the minutes.

Appeal by the defendants, the City of Buffalo and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of June, 1908, pursuant to an order entered in said clerk’s office.on the same day, and also from the said order.

Appeal by the defendants, Charles A. Swanson and others, from certain portions of a judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 8th day of March, 1906, upon the report of a referee to hear, try and determine.

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of said county on the 17th day of June, 1908, sustaining a demurrer to an indictment against the defendant for the crime of manslaughter, second degree.

Motion by the plaintiff, ¡Nellie Vandenbout, as administratrix, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted after a trial at the Monroe Trial Term in April, 1908.

<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 People of the State of New York, through the district attorney of Monroe county, from an order, made by a justice of the Supreme Court and entered in the office of the clerk of the county of Monroe on the 4th day of November, 1908, sustaining a writ of habeas corpus and discharging the relator from the custody of the sheriff of said county. The opinion delivered by the justice who granted the order appealed from is reported in People ex rel.

<p>Appeal by the defendant, The New York Central and Hudson Elver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of May, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Oriental Bank, 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 24th day of April, 1908, as amended ntmo fro tuno by an order entered on the 4th day of May, 1908, referring to a referee all questions in connection with the application of the temporary receivers of the defendant for allowance of their fees, commissions and disbursements.

<p>Crime — power of magistrate, city of New York, to discharge persons sentenced to the workhouse — court—power of Appellate Division to remove justices of inferior courts — adequate cause for removal.</p> <p>In determining the right of a magistrate of the city of New York to discharge prisoners convicted and sentenced to the workhouse under section 707 of the charter, his right to make such discharge under section 898 of the Consolidation Act will not heconsidered, as the same has been repealed.</p> <p>Where a person has been convicted of disorderly conduct by a magistrate of the city of New York and committed to the workhouse under section 707 of the charter, the magistrate’s jurisdiction ceases and the time of the prisoner’s discharge must he determined under sections 708, 709 and 710 of the charter by the commissioner of correction. The magistrate has nothing to do with such discharge.</p> <p>It seems, that the commissioner of correction, or superintendent, or other person ■ in charge of said workhouse, should not obey the order of a city magistrate discharging a prisoner.</p> <p>The authority of the Appellate Division, of the Supreme Court to remove the justices of inferior courts not of record is found in section 17 oí article 6 of the Now York Constitution and in section 182 of the Code of Criminal Procedure and, in the case of the magistrates in the city of Mew York, in section 1401a of the charter.</p> <p>While neither the Constitution nor said statutes prescribes the “ cause ” which will justify the removal of the justice of an inferior court, something more than erroneous rulings in cases decided by him, or erroneous rulings as to the extent of his jurisdiction is required.</p> <p>The acts charged against such magistrate must be such as to justify a finding that a retention of office is inconsistent with the fair and proper administration of justice. Each case depends upon the particular facts presented. The conduct must have been such as satisfies the court that the magistrate was actuated by unworthy or illegal motives in the exercise of his judicial duties, or committed acts which justify the inference that either from ignorance, or from perverted character, or from lack of judicial qualities, he has so administered his powers as to show that he should not be continued in office. ,</p> <p>Evidence in a proceeding brought to remove a magistrate in the city of Mew York examined, and held, that the administration of justice and the welfare of the community require his removal.</p>

<p>Appeal by the defendants, Isaac Hamburger and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of October,. 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of October, 1907, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 25th day of May, 1908, upon the verdict of a jury.

<p>Sernices — implied or express agreement.</p>

<p>Appeal from an order entered in the Hew York county clerk’s office on the 36th day of June, 1908, confirming the report of a referee.</p>

<p>Appeal from an order entered in the Hew York county clerk’s office on the 34th day of Hovember, 1908, denying a motion to vacate an order for the defendant’s examination before trial.</p>

<p>Appeal from an order entered in the office of the clerk of the county of Hew York on the 5th day of Hovember, 1908, allowing the plaintiff to serve an amended complaint.</p>

<p>Appeal from an order entered in the Hew York county clerk’s office on the 10th day of Hovember, 1908, granting a bill of particulars.</p>

<p>Appeal from an order entered in the Hew York county clerk’s office on the 23d day of October, 1908, denying the defendant’s motion for a change of venue.</p>

<p>Appeal from an order entered in the office of the clerk of the county of Kings on the 24th day of August, 1908, continuing an injunction pending the trial of the action. The place of trial- of this action was changed from the county of Kings to the county of Hew York.</p>

<p>Appeal from an order of the surrogate entered in the Surrogate’s Court of the county of New York on the 27th day of November, 1908, affirming an order imposing a transfer tax.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 2d day of November, 1908, denying a motion in contempt proceedings.</p>

Appeals from an order entered in the New York county clerk’s office on the 10th day of July, 1908, modifying an order for the examination of defendant before trial.

<p>Appeal from an interlocutory j udgment overruling a demurrer to the complaint.</p>

<p>Appeal from order entered in the Hew York county clerk’s office on the 11th day of June, 1908.</p>

Appeal by the plaintiff and others from an order of the Special Term, entered in the office of the clerk of the county of Westchester on the 10th day of September, 1908.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 9th day of April, 1908.</p>

Appeal by the defendants from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Kings county on the 7th day of March, 1908, and also from an order entered in the same office on the 3d day of April, 1908, denying their motion for a new trial made upon the minutes.

<p>Appeal from a judgment for the defendants, entered in the Kings county clerk’s office on the 21st day of December, 1906, upon a decision after a trial at the Kings County Special Term.</p>