Volume 13 — New York Appellate Division Reports

<p> Malicious prosecution—failure to prone want of probable cause—-identity. </p> <p>Where, upon the trial of an action for malicious prosecution, the plaintiff, fails to take the stand as a witness, and merely produces evidence of an alibi and that the defendant had refused to press the criminal prosecution .against him, and gives no direct evidence that the plaintiff was not the person alleged by ■the defendant to have stolen his money, the plaintiff was considered, under the circumstances of the case, to have failed to show that the defendant did not have probable cause to believe that the plaintiff and the person whom he accused were identical.</p>

Appeal by the defendant, Charles M. Jarvis, as administrator, etc., of Henry S. Jarvis, deceased, from a judgment of the County Court of Broome county in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 17th day of July, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 13th day of July, 1896, denying the defendant’s motion for a new…

Appeal by. the plaintiffs, Catherine E. Pawling, as administratrix etc., of Henry Haskell Pawling, deceased, and others, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the'cóünty of Montgomery on the 30th day of October, 1896, granting the defendants’ motion for a new trial of the action upon the ground of newly-discovered evidence.- The motion was made while an appeal from the judgment in favor of the…

Appeal by the plaintiff, Lena Garrett, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 9th day of December, 1895, upon the dismissal of her complaint, directed by the court after a trial at a Trial Term of said court.

<p>Attachment—fraudulent intent evidenced by an unfiled chattel mortgage and, threats to use it to defeat a creditofs action — suit in this State by a foreign corporation, not having a Secretary of State’s certificate.</p> <p>The'fiict of the giving of an unfiled chattel mortgage, accompanied by proof that the mortgagors, assuming to speak both for themselves and the mortgagee, made declarations to one of their creditors implying a threat that if suit were brought against them, they, with the co-operation of the mortgagee, would so wield the mortgage as to prevent the creditors reaching any part of their property on execution, and that the mortgagee declined to speak on the subject, is sufficient to sustain an attachment in favor of such creditor -against the-mortgagors.</p> <p>The bringing of an action in the State of New York by a foreign corporation is. not evidence that the contract upon which the action is based was made in the State of New York, and in order to maintain the action it is not necessary that, the corporation should obtain from the Secretary of State the certificate required, by section 15 of chapter 687 of the Laws of 1892.</p>

<p>Principal and agent — agreement that a report of an inspector of tile accounts of an agent shall be final—under what evidence the case should not be submitted, to the jury.</p> <p>Where a life insurance agent is employed under an agreement which contains a stipulation that the actual condition of his account with the company employing him shall be determined by an inspection of his account, to be made at the direction of the employer by one whom it shall authorize to make it, the report of such' inspector, in the absence of prdof of corruption, bad faith or misconduct on his part or palpable mistake appearing on the face of the estimate, is binding upon the agent. -</p> <p>In such a case the agent of the insurance company testified that he was authorized by the company to make the inspection which was offered in evidence, arid was not contradicted, nor was any attempt made to show that there existed any error in his computation. '</p> <p>Held, that it was improper for the court to submit to the jury the questions as to whether the agent who made the inspection was authorized by the company to, do it, and as to whether he did'it honestly.</p>

Appeal by the plaintiff, William A. Shorter, as surviving executor, etc., of Benjamin'W. Shorter, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 30th day of March, 1896, upon the report of a referee dismissing the action.

Appeal by the petitioner, The Hilton Bridge Construction Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 21st day of August, 1896, denying its motion for a peremptory writ of mandamus.

Appeal by the defendants, Luther L. Dean and others, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 18th day of June, 1896, upon the report of a referee. The plaintiff is the owner of certain premises, which include a portion of the bed of Chuctanunda creek, across which it maintains a dam forming a mill .pond on its lands from which it derived water power for use in operating its mills.

Appeal by the defendant, Franklin H. Janes, from 'a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the '24th day of February, 1896, affirming 4 judgment of the City Court of Albany. The action is to recover rent. It was commenced in the City Court of Albany by the personal service óf a summons and complaint on the defendant on thé 2d of December, 1893.

<p>Appeal by the petitioner, the Consolidated Kansas City Smelting and Refining Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 10th day of October, 1896, denying its application for a peremptory writ of mandamus to compel the Secretary of State to receive a certificate of increase of its capital stock.</p> <p>■ The appellant, the Consolidated Kansas City Smelting and Refining Company, was incorporated in the year 1887 under the Manufacturing Act of 1848,. the- amount of its capital being $2,000,000. Since its incorporation the company has, from time to time, in pursuance of the provisions of the act of 1848, increased its capital stock up to $4,500,000, on which it had paid to the State Treasurer the sum of $5,625 as the. organization tax required by chapter 143 of the Laws of 1886, and the- acts amendatory thereof.</p> <p>Contemporaneously with the proceedings taken to. accomplish the last increase of the company’s . capital stock from $3,500,000- to $4,500,000, proceedings were taken by the company under the Business Corporations Law (Laws of 1892, chap. 691) for its reorganization, as therein provided. Upon the completion of' these proceedings a certificate thereof, containing the prescribed statements and .in the prescribed form, was executed and tendered to the Secretary of State for filing in his office. He refused to file the certificate so tendered, assigning as his reason for such refusal the failure of the company to . pay to the State Treasurer the organization tax of one-eighth of one per cent. The court below sustained the claim of the Secretary of State and directed the entry of an order denying the application of the relator for a writ of peremptory mandamus to compel the Secretary of State to file the said certificate, and from such order this appeal is taken.</p>

Appeal by the defendants, Williard A. Cobb and others, constituting the New York Civil Service Commission, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the lltli day of November, 1896, directing the issuance of a -peremptory writ of mandamus requiring them to place the name of the relator on the list of persons eligible to be appointed as special agents under chapter 112 of the Laws of…

Appeal by the defendant, Thomas Redding, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 21st day of May, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Suprerne Court held in and for the county of Otsego, with notice of an intention to bring up for 'review upon such appeal an ordpr entered in said clerk’s office on the 20th day of April, 1896, denying the…

Appeal by the defendant, Mathias Baxter, from a judgment of the Supreme Court in favor of. the plaintiffs, entered in the office of the clerk of the county of Schoharie on the 15tli day of July, 1895, upon the decision of the court rendered after a trial at the Schoharie Circuit, the court having submitted certain questions to the jury.

<p> Indecent exposure—right of the Appellate Division on a review by certiorari —pre- ■ stmvption in favor of the accused. </p> <p>Upon the hearing on the return to a writ of certiorari, issued to review the action of the police board of a city in dismining the chief of police for an indecent exposure of his person, the Appellate Division may not only inquire whether there was any competent proof of all the facts necessary to sustain the finding of the police commissioners, but may also consider the evidence, and if it finds a preponderance of evidence against the determination of the police board reverse it.</p> <p>The proceeding in such a case is criminal in its nature, and the officer is entitled to the benefit of the same presumption which would have existed in his favor if the charge had been made against him in a criminal court.</p> <p>"What evidence is insufficient to sustain such a charge, considered.</p>

<p>Contract for the. employment of convicts under the piece-price system •— how far affected by the Constitution of New York' of 1894.</p> <p>The managing authorities of the Albany penitentiary, acting under the provisions of chapter 883 of the Laws of 1889, authorizing them to conduct the labor of a certain number of the prisoners therein under the piece-price system,” entered into an agreement on December 1, 1893, with a contractor to furnish a certain number of convicts to work for the contractor under the above system for the term of three years from that date, with the privilege to the contractor of a further term of three years at his election.</p> <p>Held, that such agreement was not abrogated and ended by the provisions of section 39 of article 3 of the Constitution of the State of New York of 1894, nor by chapter 439 of the Laws of 1896.</p> <p>Whether the agreement so made Was a contract made in the exercise of powers conferred by the Legislature and not a license, considered.</p> <p>Whether such agreement was subject to be terminated by an exercise of the police powers reserved to the State, or came within the protection afforded by the terms of section 10 of article 1 of the United States Constitution, which prohibits a State from passing a law impairing the obligation of a contract, considered.</p>

<p>Appeal hy the defendant, Lovisa H. Chapin, from an order of the Supreme Court, made at the Montgomery Special Term .and entered in the office of the clerk of the county of. Washington on the 26th day of October, 1896, denying her motion to set aside the service of an amended complaint and to vacate the deficiency judgment -entered in the action, and to set aside the foreclosure sale had therein. •</p> <p>The summons, with the complaint in foreclosure, was served upon-the appellant February 28,1896. The complaint made no personal claim against the appellant. She consulted counsel,. and acting upon his advice, did not appear or defend, but made default.. The amended complaint was served upon her April 18, 1896. This contained a personal claim and demanded judgment for deficiency. Hot understanding that the amended complaint changed the situation, the appellant paid no attention to it. She had no actual notice of the provision in the judgment for the deficiency till the day of sale. The sale resulted in a deficiency. The appellant makes an -affidavit of merits.</p>

<p> Misjoinder of causes of action —one accruing to a testator with one accruiüg to his eccecutor—some affecting only part of the defendants—surrogate’s decree. </p> <p>A cause of action which accrued to a testator cannot be united with another which accrued to his personal representatives after his death.</p> <p>Where some of the parties to an action are interested in their different individual or representative capacities in one of the causes of action set forth in the complaint, and some of them in another cause of action, and where all of the defendants are not interested in all the causes of action therein set forth, the complaint presents a misjoinder of causes of action.</p> <p>Where the decree of a surrogate has provided that payments out of a fund in the hands of executors shall be made only upon their joint check, if one of the executors unjustly refuses to unite with his fellow in paying a claim which is a proper charge against the estate, the latter may apply for a modification of the decree, and will be granted" relief in this respect.</p>

Appeal by the defendant-, The William H. Frank Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the ISth day of April, 1896, upon the verdict of a jury rendered after-a trial at a Trial Term of the Supreme Court held in and for the county of Queens, and also from an order entered in .said clerk’s office on the 4th day of May, 18.96, denying the defendant’s motion for a new trial…

Appeal by the plaintiff, Ellsworth R. Bathrick, from a judgment of the Supreme Court in favor of the defendant, entered in the office of. the clerk of the county of Few York on the 4th day of March, 1896, upon the dismissal of his complaint directed by the court after a trial at a Trial Tenn of the Supreme Court held in and for the county of Mew York on the 19th day of February, 1896, and also from an order entered in said clerk’s office on the 10th. day of April, 1896,…

Appeal by the defendant, Catharine I. Mackay, from a judgment and order 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 October, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendants, George Church and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rockland on the 9th day of October, 1896, upon the decision of the court rendered after a trial at the Orange Special Term overruling said defendants’ demurrer to the .amended complaint, with notice of an intention to «bring up for review upon such appeal an order entered in said clerk’s…

<p>Habeas corpus — a child nominally in the custody of her gumdian by adoption, but' really in that of a divorced woman living in adultery.</p> <p>A traverse to a return made to a writ of habeas corpus, and not denied, alleged that a child four years old, who had been duly adopted under chapter 830 of the Laws of 1873, was not really in the custody of its statutory guardian, but in that of the daughter of the guardian, who, after being divorced because of her adultery, was still living with her paramour.</p> <p>Held, that the court was justified in removing the child from the custody of the statutory guardian and putting it in that of its nearest relative, notwithstanding the fact that this relative had previously consented to the adoption of the child by the statutory guardian;</p> <p>That should it subsequently be made to appear to the court that the guardian had any defense to the matters stated in the traverse, the present determination of the matter would not prevent the statutory guardian from again applying to the court to recover the custody of the child.</p>

Appeal by the plaintiff, Nicholas Delaney, from a judgment of-the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 21st day of May, 1896, upon the dismissal of his complaint directed by the court at the close of the plaintiff’s evidence after a trial at a Trial Term of the Supreme Court held in and for the county of Westchester.

Appeal by the defendant, Rafala S. Beston, 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 27th day of April,. 1896, upon the decision of the court rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York before the court without a jury. This appeal was transferred from the first department to the second department.

Appeal by the defendant, John B. Phillips, 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 15th day of •October, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the County Court of Kings county, and also from an order entered in said clerk’s office on the 14th day of October, 18.96, .denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Metropolitan Life Insurance 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 1st day of July, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the-county of Kings, and also from an order entered in said clerk’s office on the 8th day of July, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, William Post, from an order of the City Court of Yonkers, entered in the office of the clerk of said court on the 5th day of December, 1896, requiring the plaintiff to make his complaint more definite and certain.

<p> When the trial, judge may nonsuit, or direct a verdict.. </p> <p>It is only where there is a mere scintilla of evidence or an illusory contradiction that it becomes the duty of the trial j udge to nonsuit, or to direct a verdict, as the case may require —not in a case where there is a conflict of evidence.</p> <p>Where one or two competent witnesses testify to facts not incredible, which, if believed by the jury, would entitle the party to a verdict, he cannot be deprived of his right to go to the jury because the witnesses who contradict his evidence are more numerous.</p> <p>In such a case, the only remedy of the party aggrieved by the verdict is to move to set it aside if it is rendered perversely against the weight of evidence.</p>

Appeal by the defendant, Mary E. Lewis, 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 28th day of May, 1896, upon, the report of a referee.

Appeal by the respective plaintiffs in each of the above-entitled actions from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the '12th day of December, 1896, granting the motion of Harriet Willett and others to'be made parties defendant in the action and directing an amendment to the complaint for that purpose.

Appeal by the People of the State of Yew York from a final order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 12th day of August, 1896, discharging the relator from imprisonment in Sing Sing prison, made on a writ of habeas corpus.

Appeal by the defendant, Joseph W. Hamilton, from an order ■of the County Court of Kings county, made at a Special Term thereof and entered in the office of the clerk of the county of Kings on the 17th day of April, 1896, reversing a judgment rendered by a justice of the peace of the city of Brooklyn in favor of the defendant, and ordering a new trial before said justice.

Appeal by William A. Watson, as assignee for the benefit of creditors of Mills, Robeson & Smith, from so much of a decree of the County Court of Kings county, entered in the office of the cleric of the county of Kings on the 17th day of July, 1896, as directs that the exceptions of the Bank of the State of It ew York to the referee’s report herein be sustained, and the claim of William A. Watson, as assignee for Mills, Robeson & Smith, allowed by the referee, and fixed at…

Appeal by the plaintiff, Per W. Brundin, from a judgment of the Supreme Court, adjudging that the defendant was entitled to a set-off of $833.60 against the face value of the benefit certificate held by the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of November, 1896, upon the decision of the court rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Queens before the court without a jury.

Appeal by the defendants, James J. Moran and others, from a judgment of the Supreme Court in favor of the defendants, the City of Brooklyn and others, entered in the office of the clerk of the . county of Kings on the 24th day of June, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Obadiah Earned, from a judgment of the Supreme Court in favor .of the plaintiff, entered in the office of the clerk of the county of Kings' on the 12th day of December, 1896, upon the decision of the court rendered after a trial at the. Kings County Special Term.

<p>Appeal by the defendant, Herman Reiners, from an interlocur tory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of December, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term overruling his demurrer to the plaintiff’s .complaint.</p> <p>The plaintiff, by her complaint, alleges that by his will, which was admitted to probate, Joseph Closius, deceased, devised the residue of his estate, both real and personal, in trus-t to the plaintiff (his wife) for her use and benefit during her life ; that afterwards, on May 11, 1891, she was indebted to the firm of IT. & H. Reiners, of which the defendant was the principal partner, in the sum of $685.79 ; that the plaintiff sought and obtained from that firm the loan of $721.21 in money ; that plaintiff was thereupon required to and did give to the firm her promissory note for $1,500, payable in four months, the defendant charging up against her $90, being one year’s interest on $1,500, all of which was usurious and illegal; that on its maturity it was renewed for two additional months; that in November, 1891, when the note became due, the plaintiff was unable to pay it, and that. the defendant then represented to her that she; had. better confess judgment in favor of the firm; that it was unnecessary for her to take any legal advice; that if she would so confess the defendant would protect her interest on' the sale that was to follow; that the property in which she had a life estate was worth $20,000 ; that he would see that her life estate would be based on that valuation; that on the sale she would receive a fair market price for her life interest, and that all he wanted was the amount due the firm; that the balance would go to her, and that her equity was- a considerable one, and that if she implicitly confided in him he would act for her and in her sole interest; that the plaintiff, believing these representations to be true and relying thereon, confessed judgment November 15, 1891, for $1,532.92.</p> <p>The plaintiff further alleges “ that said representations were, as a matter of fact, false and' fraudulent and untrue and knowingly as,* and 'made to deceive her,” and that her “ interest in her husband’s real estate was sold in disregard of defendant’s representations and in violation thereof.”</p> <p>The plaintiff proceeds to allege that her interest in such real estate was sold on execution issued on the judgment and was purchased by the defendant and his partners for the amount of their judgment ; that the sale was not properly advertised, and was conducted in their interest and not in the interest of the plaintiff, as the defendant had agreed; that the plaintiff has received no money from him, and that she is informed and believes that her life estate in the premises amounted to $8,393, for which sum she demands judgment against the defendant.</p>

<p>Negligence—joint tortfeasors — a child injured in a horse car by a collision with a brewery wagon, and subsequently dying •—proximate cause of death — negligence of the driver of the wagon — hypothetical questions — brakes upon the wagon — negligence of file driver of the hoi'se car— an unpaid judgment against one wrongdoer is not a ban' to an action against the other.</p> <p>In an action where negligence was charged against a brewing company and also against a street horse railroad company, it appeared that the plaintiff's intestate, an infant aged sixteen years, was sitting on the easterly side of a car-going south upon the westerly track in a city street.-. East of the westerly track, and distant from it about thirty-two feet, there was a gateway in a wall of a brewery. The distance from the gateway to the nearest gutter of the street was about fifteen feet, and the grade from the gateway towards the gutter -was descending. A driver of a heavily loaded wagon having two horses, and being; with its pole, over twenty-three feet long, drove out rather rapidly through the gateway into the street, and the pole of the wagon pierced the side of the horse car, which was moving rapidly on a descending grade. The horse car was sixty or seventy feet from the gateway when persons upon it saw the beer wagon appear, and the speed of the car was not decreased until the collision took place.</p> <p>The intestate was struck by the pole of the truck on her left side, which became red from a little below her lower rib to her shoulder blade. Three days later the intestate complained of pains along the ribs on her left side, and her physician detected fluid and a condition of pleurisy. A few days later there were adhesions from the left side, due to pleurisy, and also upon the back of the chest. Water exuded into the chest, and this condition existed when-symptoms of consumption appeared, from which she died ten months after the injury.</p> <p>Held, that upon the facts there was an unbroken connection between the injury-received by the intestate and her death by consumption, and hence the injury might properly be found by the jury to have been the proximate cause of death;</p> <p>That an expert might answer a hypothetical question whether, upon the assumed state of facts, the blow in question could produce consumption;</p> <p>That the jury were justified in finding that the driver of the beer wagon, knowing the distance between him and the track to he only about thirty-two feet,, was chargeable with negligence in driving out of the yard of the brewery without first seeing or: knowing that the way was clear;</p> <p>That the question whether the brewing company was required by. reasonable-precaution to supply a brake for its truck) was one proper for the consideration of the jury;</p> <p>That, as the collision occurred in the day time, and as, upon the evidence, the advance of the truck into the street might have been seen from the car in time to avoid the collision, the question whether the railroad company was negligent was one to be decided by the jury, and that it was erroneous to dismiss the complaint as to it;</p> <p>That the fact that the plaintiff had recovered judgment against the brewing company, it not appearing that the judgment thus recovered had. been actually paid or satisfied, did not debar the plaintiff from appealing from the judgment in favor of the railroad company, as a j udgment recovered against one of two • joint wrongdoers was, until paid or satisfied, no bar to the prosecution of an action for the same cause against the other wrongdoer. , .,</p>

Appeal by the defendant, The Flushing and College Point Electric 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 Queens on the 8th day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme.

<p>.Sh&'iff— substitution of his indemnitors in replevin, in an action against him for conversion.</p> <p>'Where "the plaintiffs in an action of replevin have indemnified the sheriff, he has not the right, upon his own motion, to have his- indemnitors substituted as parties defendant, in his place, in an action brought against him for the alleged conversion by him of the replevied chattels.</p> <p>'The statute in such case gives the indemnitors, only, the right, at their option, to be substituted.</p> <p>The right given by section 1711 of the Code of Civil Procedure to the indemnitors, in an action of replevin, to be substituted, is not affected by the amendment in 1887 of "section 1431 of said Code relating to executions and warrants of attachment, giving the sheriff, in such matters, the right to have,his indemnitors substituted.</p>

Appeal by the defendant, Ezra F. Merrill, 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 lath day of July, 1896, striking out his answer as sham and directing that judgment be entered in favor of the plaintiff.

Appeal by the defendants, William Alyea 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 30th day of July, 1896, upon the decision of the court rendered after a trial at the Hew York Special Term. This appeal was transferred from' the • first department to the second department.

Appeal by the defendant, The City of Brooklyn, 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 June, 1896, upon the. verdict of a jury rendered-after a trial at a Trial Term of the Supreme Court held in and for the county of- Queens, ■and also from an order entered in said clerk’s office on the 23d day of June; 1896, denying-the'defendant’s motion fora new trial made upon the…

Appeal by the defendant, James E. Clonin, as assignee for the benefit of creditors of Herman Dreyer, from a- judgment of the ' County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2d day of April, 1896, upon the verdict of a jury upon an appeal by the defendant from a judgment in favor of the plaintiff rendered in a court of a justice of the peace.

Appeal by the plaintiffs, Thomas Colin and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the. county of Richmond on the 18th .day of November, 1896, upon the decision of the court rendered after a trial at the Richmond Special Term overruling their demurrer to the affirmative answer of the defendants.

Appeal by the defendant, Alonzo E. Smith, from a judgment of the County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of the- county of Suffolk on the 30th day of March, 1896, upon the report of a referee.

Appeal by the plaintiffs, Moses Zimmermann and another, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, entered in the office of the clerk of said court on the 18th day of November, 1895, upon the decision of the court rendered after a trial at an Equity Term thereof, dismissing the plaintiffs* complaint upon the merits. This appeal was transferred from the first department to the second department.

Appeal by the plaintiffs, Loretto Dugan and others, from. an order óf the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county ■ of Kings on the jth day of July, 1896, setting aside a verdict in favor of the plaintiffs rendered by direction of the court after a trial at.a Trial Term of the Supreme Court held in and for the county of Kings and granting a new trial.

Appeal by the defendant, The New York and Cuba Hail Steamship 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 28th day of Hay, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 28th day of Hay, 1896, denying the defendant’s motion for a new…

Appeal by the defendant, Theodore Fenouillet, as president of the Syndicat des Proprietaires et Fermiers de Toulon, Ollioules et environs pour le defense de leurs interets Agricoles et la vente des Oignons á fleurs, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of December, 1896, denying .his motion to vacate an' attachment theretofore issued in the action.

Appeal by the plaintiff, Frances Y. Nash, from an order of the Supreme Court, made at the New York Special Term and entered-in the office of the clerk of the county of New York on the 27th day of November, 1896, denying his motion for a bill of particulars of a counterclaim set up in the defendant’s answer.

Appeal by the defendant, Josiab W. Place, as assignee for the benefit of creditors of Ernest A. YValter and Oscar W. Place, from an order of the Supreme Court, made at , the New York Special Term and. entered in the office of the clerk of the county of New York on the 29th day of September, 1896, granting a discovery and inspection of the books and papers of his assignors.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of 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 16th day of October, 1896, upon the verdict of a jury rendered by direction of the court after .a trial at a Trial Term of the- Supreme Court held in and for the county of New York.

Appeal by the plaintiff, Albert A. Manda, 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 8th day of October, 1896, requiring the plaintiff to give additional security under a warrant of attachment.

Appeal by the defendant, Catharine Taylor, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of the said court on the 26th day of July, 1895, upon the report of a referee.

Appeal by Francis J. Crilly from ail 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 October, 1896, committing him to the county jail in default of the payment of a personal tax imposed upon him.

<p>Appeal by the defendant, Julie Rosswog, 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 13th day of April, 1896. upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>The action was brought by the plaintiff to have declared void and surrendered up to her to be canceled a certain promissory note made by her to the defendant’s order on the 21st day of April, 1893, and a chattel mortgage to secure payment of the same, executed the same day:</p> <p>The negotiations leading up to the loan were conducted by the defendant’s father, Constantine Rosswog.</p>

Appeal by the defendant, The Western Union Telegraph Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 25th day of March, 1896, reversing an order of the General Term of the City Court of the city of New York, which reversed a judgment of the Trial Term of that court in favor of the plaintiff and directed a new trial, and affirming a judgment of said Trial Term.

Appeal by the defendants, Charles H. Boyer and another, from a judgment of the' Supreme.

<p>■ Appeal by the defendants, The Meriden Britannia Company and. •others, from a judgment of the Supreme' Court in favor of the plaintiff, entered in the office of the clerk of the county of New 'York on the 5th day of June, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court' held in and for the county of New York, and also "from an order entered in said clerk’s office on the 29th day of May, 1896, denying the defendants’ motion for a new trial made upon the minutes.</p> <p>This action was brought by George W. Stephens, as receiver of the property of the McCall Publishing Company, to recover the sum of $3,000 for the alleged conversion, on the 9th day of January, 1893, by the defendants, of certain goods and chattels belonging to the said McCall Publishing Company.</p>

<p>Misjoinder of causes of action — one on contract for money had, and received, the other ; in tort arising out of a breach of duty — causes of action arising out of the same transaction must be consistent.</p> <p>A complaint by the receiver of a corporation alleged,</p> <p>As a first cause of action, that the defendant, as a director, in company with a majority of the directors, for a valuable consideration, agreed to' and did turn over the control of the corporation to Louis P. Levy and demanded of the defendant the share of the money payment which he had received from the transaction.</p> <p>The second cause of action was substantially the same as the first, except that it. did not allege that the defendant had personally received any part of the consideration. It alleged, however, that the agreement was fraudulent and void and in violation of the defendant’s duties as a director, and'- that the entire consideration was the property of the corporation and its creditors, which the defendant and' his associates had wrongfully converted, and damages were claimed to the extent of the misappropriation.</p> <p>The third cause of action was substantially like the second, hut further alleged that, by the misconduct of Levy, the corporation became insolvent; that the fund held by it for death claims was wasted, and that these claims became due, had not been paid, and that the corporation and its creditors had been damaged • to the extent of their amount..</p> <p>A demurrer was interposed to the complaint, upon the ground that causes of action upon contract were joined with a causa of action for tort.</p> <p>Held, that the demurrer was proper;</p> <p>That the first two causes of action were for money had and received, the receiver suing in affirmance of the contract made by the defendant and his associates with Levy, while the third cause of action was for a tort based upon an alleged fraudulent and void transaction,.in violation o£ the defendant’s duty as a director, by which the corporation was damaged, and that there was, consequently, a misjoinder of causes of action;</p> <p>That the complaint was not saved from the objection of misjoinder by the provisions of subdivision 9 of section 484 of. the Code of Civil Procedure, allowing the joinder of claims arising out of the same transaction, for the reason that the causes of action in question were entirely inconsistent, and, therefore, conflicted with the further provision of subdivision 9, declaring that “it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section,” and “ that they are consistent with each other.”</p>

<p>Appeal by the defendant, The Third Avenue Railroad Company, from -an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 31st day of December, 1896, granting an injunction pendente lite.</p>

<p>Bales — breach of warranty — remedy of the vendee — measure of damages where the vendor takes back the chattel warranted — knowledge of the falsity of the warranty.</p> <p>The ordinary rule, that where a breach of a covenant of warranty of chattels has occurred, the buyer’s remedy is, not to rescind the contract, but to recover ■from the vendor, upon the theory that the contract is still in force, damages measured by the difference between the value of the property as it would have . been as warranted, and its value as it actually was, is subject to an exception where it appears that the vendor, upon complaint made to him of defects, has taken back and retained the chattel warranted, in which event the vendee is entitled to recover of the vendor the price paid and interest thereon.</p> <p>In such an action it is not necessary to allege or prove that the vendor was aware of the falsity Of the warranty.</p>

<p>lieferee’s fees — duty of the referee when they are tamed at a less amount than the sum paid him.</p> <p>A referee is entitled to insist' that his fees shall he paid as a condition of the delivery of his report, hut an implied condition attaches to such payment that the fees shall be adjusted at the time of the taxation of costs, and that any excess of what the court shall then deem a proper allowance will be returned by the referee to the party who has paid his fees.</p> <p>An attorney is not bound at his peril, before paying a referee the fee demanded by him, to apply by motion to the court to have its amount -fixed.</p>

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at a Trial Term thereof and entered in the office of the clerk of the county of New York on the 20th day of November, 1896, granting the plaintiff’s motion for a new trial upon the judge’s minutes after a nonsuit directed by the court.</p>

Appeal by the plaintiff, William R. Hill, 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 25th day of November, 1896, denying his motion for an injunction pendente lite.

<p>Appeal by the relator, James M. Merritt, from an order of the Supreme Court, made at the Hew York Special Term, bearing date the-day of October, 1896, and entered in the office of ‘the clerk of the county of Hew York denying his motion for a peremptory writ of mandamus.</p>

<p>Contempt — supplementan'y proceedings — rents coming due from sub-tenants under . a lease held by the debtor — they a/i'e not after-acquired property.</p> <p>Where a judgment debtor, who holds as lessee a lease of real property, -while under injunction in supplementary proceedings, collects rent thereafter becoming due from his subtenants after the service of the injunction order upon him, and applies the same upon debts other than that of the judgment creditor who instituted the proceedings, he is guilty of a contempt of court.</p> <p>In such a case the lease is the property, and is necessarily depreciated in value by the collection of the rents of the sub-tenants; it is like a bond or other chose in action which has an immediate value, although what is to be paid under it is not yet due.</p>

Afpeal by the defendant, Susan Jefferson, individually, 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 25th day of February, 1896, upon the report of a referee.

<p> Foreign executor ■—not entitled to am, order that lie be substituted as a party defendant in an action in the State of New York.- </p> <p>A foreign executor cannot sue or be sued, purely in his representative capacity, in the courts of the State of New York.</p> <p>Where an action is based upon a .contract made between the plaintiff and a defendant, who dies after judgment has been recovered against him, but before ■ -his time to appeal has expired, the executrix of the defendant, appointed in another State, and to whom no ancillary letters have been issued, is not entitled to an order that the action be revived and continued against her as executrix.</p>

' Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk in the county of New York on the Rh day of Hay, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 8th day of Hay, 1896, denying the defendant’s motion for a new trial made…

Appeal by the defendants, Clinton P. Paine and another, 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 7th day of August, 1896, upon the report of a referee.

Appeal by the plaintiffs, William Elias and others, from so much of a judgment of the Supreme Court, entered in the office of the cleric of the county of New York on the 2d day of September^ 1896, upon the decision of the court rendered after a trial at the-Hew York Special Term, as adjudges and decrees “ that the defendant cannot be compelled, in this action, to account for moneys alleged to have been unlawfully received by him, or profits to have ■ been made whilst he was…

Appeal by the defendant, Jacob Becker, as sole surviving executor and trustee, etc., of Gottlieb Becker, deceased, from a judgment of the Supreme Court in favor of thc^pdcjn tiffs, entered in the office of the clerk of the county of New York on the 9th day of July, 1896, upon the decision of the court. rendered after a trial at the New York Special Term construing the last will and testament of Gottlieb Becker, deceased.

Appeal by the plaintiff, Alice M. Matthews, 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 8th day of June, 1896, upon the dismissal of her complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Hew York, and also from an order entered in said clerk’s office on the 11th day of June, 1896, denying her motion to submit the case to the…

Appeal by the defendant, The Edison Electric Illuminating Company of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 5th day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 3d day of July, 1896, denying the defendant’s motion for…

<p>^Recording a mortgage in a deed booh — ineffectual as notice —conveyance in consideration of the discharge of a judgment — who is a bona fide purchaser — actual notice.</p> <p>The owner of an interest in certain real estate assigned her interest in it, in terms, to secure an indebtedness owing by her to.one Howells, which instrument was recorded in the proper clerk’s office in the book of deeds, instead of the book of mortgages.</p> <p>She subsequently, to secure an indebtedness she owed to one Hettrick, made a second assignment to him, which was also, by mistake, recorded in the book of deeds. Thereafter, in consideration of the relinquishment of a judgment which Hettrick had recovered on his claim, she gave to him a full covenant deed- of her interest in the real estate, which he duly recorded, and went into possession of the land, and continued in such possession until it was sold in an action for partition.</p> <p>Held, that the misrecording of the assignment to Howells was ineffectual to charge a bona fide- purchaser with constructive notice of its existence;</p> <p>That,-as Hettrick had actual notice before he took the deed of the assignment to Howells, he did not occupy that position.</p> <p>Quaire, whether the relinquishment of the judgment was a sufficient consideration to make Hettrick a bona fide purchaser for value.</p>

Appeal by the plaintiff, Stephen A. West, 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 July, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Michael Rosso, an infant, by Frank Rosso, his guardian ad litem, 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 December, 1896.

<p>Appeal by the defendant. J. Rodman Parsons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of thé cleric of the county of New York on the 28th day of May, 1896, upon the verdict of a jury rendered by direction of the court.</p>

<p>Appeal by the defendants, The New York Elevated Railroad Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of November, 1896, granting the plaintiff’s motion to join David Cohen and Francis Scallion as parties defendant in the action, and granting the plaintiff leave to make and serve a supplemental summons and eompláint.</p>

Appeal by Eugene A. Hoffman, as assignee of the purchaser at a partition sale had in the above-entitled action, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 15th day of September, 1896, denying his motion to direct the referee in the action to pay taxes upon certain property sold therein.

Appeal by the defendant, The Second Avenue 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 New York on - the 11th day of May, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 13th day of May, 1896, denying the defendant’s motion for a new trial…

<p>(fertiorari to review a determination — Statute of Limitations — office abolished as unnecessary—an exempt volunteer fireman of the city of Lfew York discharged because thereof.</p> <p>It seems, that a proceeding taken by a writ of certiorari attested on the 3d of September, 1895, to review a determination of the board of the department of public parks of the city of New York, which became final and binding on the 80th day of April, 1895, is barred by section 3135 of the Code of Civil Procedure.</p> <p>Where the foreman of carpenters in the department of public parks of the city of New York is discharged because the superintendent of perks in that city '" has recommended to the board of such department that, in view of a “ reduction of the mechanical force,” the office he abolished,, and where-no other person has been appointed to the position, its duties having been subsequently performed by two other employees, it must be considered that the position of foreman was abolished for good and sufficient reasons, and, although a member of the volunteer Are department of the city of New York, he is not entitled under section 577 of the Laws of 1892 to demand that he be reinstated.</p>

Certiorari issued out of the Superior Court of the, city of New York, and attested on the 10th day of October, 1895, directed to Theodore Roosevelt and others, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the Superior Court of the city of New York all and singular their proceedings relating to the dismissal of the relator from the police force of the city of…

<p>Building contracts — contractors'loorhina contemporaneously are each entitled to reasonable access to the work — the ^l^tttect cannot arbitrarily delay one to favor the progress of another — laclies of a ¿ft&mporaneoiis contractor is not a defense to the owner — construction of a pi'ovisio?it^lA<^^ architect may make an allowance for the time dw'ing which a contractor is delay^J1^ others.</p> <p>Under an ordinary contract to excavate there is an understanding that the contractors are to be unrestricted in the employment^ means to perform the contract, and that the owner .shall leave nothing undonir^kich. it was his duty to do to enable the contractors to perform.</p> <p>"Where the owner, either by himself or by his employee, retains the cui^1’0^ as manner in which other contracts are to be performed, he is bound use such control in a way that will not render the performance of eitlienj c°utiact unnecessarily burdensome or expensive to either contractor.</p> <p>Where a contract to excavate cellars and foundations, made between contujp0*01"8 and a street railroad company, makes the certificate of the architect, w° 18 employed by the railroad company, final as to the performance of the worly ™ general, and as to the true meaning of the drawings and specifications, and' • contract also contemplates contemporaneous work by other contractors to .V36 done according to the directions of the architect, but contains no provision tho his directions in such a situation shall be final, or for the submission to the$ architect of any question as to the performance by the railroad company of its] duty to. give to the contractors the possession necessary to enable them to complete their contract, the architect has no power to determine arbitrarily the degree and facility of access to be allowed the excavating contractors in the performance of their work; and where there is proof that the architect preferred, in this respect, contractors for shoring the sides of the excavation, who were paid fly day’s labor, over excavating contractors, who were to receive a gross sum, and in this manner grossly and unjustly delayed the progress of excavating, a. case is presented where the railroad company, by its agent, the architect having direction of this part of the work, has denied the excavating contractors-reasonable access, and has made performance unreasonably burdensome and expensive, and it consequently is liable to the contractors for their losses by such, delay and interference.</p> <p>Under such circumstances it is not a defense to the railroad company that a part •of the delay and interference was caused by the loches of a shoring contractor with whom the company had contracted to do that part of the work, as the railroad company had no right to make a contract with a third person, the effect of which was to oust the excavating contractors of their implied right to-such possession of the premises as was necessary to enable them to perform their contract, and to largely and unnecessarily increase their expense.</p> <p>A provision in a contract allowing the architect to adjust and arrange a proper-allowance for any loss of time by which the contractor should be delayed on account of other contractors, affords no defense to a claim by the contractor for damages for an unreasonable or improper act of the owner in violation of its agreement with him, as such a provision is merely designed to extend the-time for the completion of the contract by the contractor, in case of a delay caused by the other contractors in the proper performance of their work.</p>

Appeal by the defendant, Joshua S. Helmer, from.' a judgment of the Court of Sessions of Niagara county, rendered on the 7th day of December, 1895, convicting him of knowingly exhibiting to a public officer a false book in violation of section 592 of the Penal Code, and also from an order, entered in said clerk’s office on the 7th day of December, 1895, denying the defendant’s motion for a new trial.

<p> Application to compel a committee of an insane father to pay for the support of his son, an inmate of the Bt. Lawence State Hospital for the Insane, denied. </p> <p>A proceeding by the St. Lawrence State Hospital for the Insane to compel the committee of a lunatic to support and maintain an insane and indigent son of the lunatic who is an inmate of that hospital, instituted in 1895, before the repeal, by chapter 545 of the Laws of 1896, of chapter 126 of the Laws of 1890, making the support of such'insane pauper a charge upon the State, cannot be maintained.</p>

<p>Appeal by the plaintiff, Frank J. Marrinan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 30th day of June, 1896, upon a nonsuit granted by the court at the close of the plaintiff’s evidence after a trial at a Trial Term of the Supreme Court held in and for the county of Monroe, and also from an order entered in said clerk’s office on the 6th day of July, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Alice McManus, from a judgment of the Supreme Court in favor of the defendants, entered in the ofBce of the clerk of the county of Jefferson on the 3d day of July, 1896, upon the decision of the court rendered after a trial'at the Jefferson Special Term dismissing her complaint.

Appeal by the defendant, the British America Assurance 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 3d day of January, 1896, upon the verdict of a jury rendered after a trial at the Monroe Circuit; also from an order entered in said clerk’s office on the 24th day of December, 1895, denying the defendant’s action for a new trial made upon the minutes; and also from an order entered…

Appeal by the defendant, the Niagara Cycle Fittings 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 30th day of March, 1896, upon the decision of the court rendered after a trial before the court without a jury at a Trial Term of the Supreme Court held in and for the county of Erie.

<p>Gross-appeals by the plaintiff, Caroline K. Brennan, and by the ■defendant, The City of Buffalo, from portions of a judgment of the Superior Court of the city of Buffalo, entered in the office of the ■clerk of said court on the 27th day of December, 1895, upon the decision of the court rendered after a trial before the court without a jury.</p> <p>The judgment rendered reduced an assessment of $2,916.98 for taxes levied against the plaintiff’s land by the sum of $581, and set aside the sale of the plaintiff’s premises for the non-payment of the taxes and canceled the ■ certificates of sale. The plaintiff appeals from that part of the judgment which sustains the assessment, except the sum of $581; and the defendant from that part of. the judgment which reduces the assessment by the sum of $581.</p>

<p>Appeal by the defendant, E. Ashley Smith, from a judgment of the Supreme Court in favor of the plaintiff for $8,750.83 damages and $722.65 costs, making a total of $9,523.48, entered in the office of the clerk of the county of Niagara on the 11th day of March, 1896, upon the report of a referee.</p> <p>This action was begun March 21, 1894, for an accounting of moneys received and expended, pursuant to certain contracts.</p> <p>July 15, 1873, Edward Roby, of Chicago, Ill., in consideration of $63,076 paid and secured to be paid, received a conveyance of SIS^^acres of land in Lake county, Ind. One-fourth of the consideration ($15,769) was paid in cash, and the remainder ($47,307) was secured to be paid by twelve promissory notes given by Edward Roby to the vendors for $3,942.25 each; four of them were payable within one year from July 15, 1873, four within two years from July 15, 1873, and four within three years from July 15, 1873, .with interest at the rate of eight per cent per annum, payable semi-annually. The payment of these notes was secured by a mortgage executed by. Edward Roby to the vendors of the premises. July 28,1873, Dayton S. Morgan, of Brockport, N. Y., advanced to Edward Roby the $15,769 which he paid down on receiving the grant of the premises. December 26, 1873, a written contract, under seal, was entered into between Morgan and Roby, which described the land and the terms of its purchase, and recited that Morgan had furnished the $15,Y69 paid on the purchase, and provided that Morgan should advance the money to pay the notes, and that, out of the proceeds of the sale of the land, he -was to be paid his advances, with “ interest on the down payment and on all moneys which he may hereafter advance upon said purchase at the rate of ten per cent per annum, to be computed and compounded semi-annually on the 15th day of July and January in each .year.” The contract also provided that Roby was to take charge of and sell the premises -without compensation; and after Morgan had been paid the sums advanced, with interest as provided, he was to have two-thirds of the net proceeds of lands sold and own two-thirds of all lands unsold, and Roby was to have one-third of the net proceeds, of all lands sold and own one-third of all lands unsold.</p> <p>December 26, 18Y3, a written contract, under seal, was entered into between Dayton S. Morgan and Joseph W. Helmer, of Lock-port, N. Y., in which it was recited that Helmer had paid to Morgan one-half of the sum which he had paid upon said purchase, and in consideration of said Helmer agreeing to pay one-half of all the moneys which Morgan should be required to pay under his contract with Roby, Helmer was to have one-half of Morgan’s interest in the lands and in the moneys received from the sale thereof. Roby and Helmer were brothers-in-law. Upon the execution of the contract of December 26, 18Y3, Edward Roby, Dayton S. Morgan and Joseph W. Helmer each owned an undivided third interest in the land, Morgan and Helmer being bound to pay the purchase price thereof.</p> <p>February 1, 18Yd, Joseph W. Helmer and E. Ashley Smith, the defendant "herein, entered into a written contract, under seal, of which the following is a copy:</p> <p>“ Whereas, Joseph W. Helmer, of Lockport, N. Y., bought of Dayton S. Morgan, of Brockport, N. Y., an undivided one-half of his interest in three hundred and fifteen and 38-100 acres of land, more or less, situate in the county of Lake and State of Indiana, more particularly described in a contract made between said Morgan and Edward Roby, of Chicago, on the Yth day of August, A. D. 18Y3, a copy of which is hereto annexed, and by the terms of the agreement for such purchase of said Morgan bearing date December 26th, 18Y3, between the said Helmer and Morgan, the said Helmer agreed to pay to the said Morgan one-half of the purchase price of the said lands, as it shall become due and payable according to the terms of the said agreement between the said Morgan and Roby above referred to, together with one-half of the taxes and other necessary expenses, and for a more particular description and specification of the interest so purchased by said Helmer, reference is hereby had to said contracts, one between said Morgan and Roby and one between said Morgan and said Helmer, or the copies thereof hereto annexed.</p> <p>“ Now in consideration of the premises herein contained and of one dollar to him by said Helmer paid, E. Ashley Smith, of Lock-port, Niagara county, New York, doth hereby covenant and agree to and with said Helmer that he will furnish and advance the money, and make the payments provided to be made by said Helmer in and by the said agreement between said Morgan and Helmer- above referred to, a copy of which is hereto annexed, being the one-half of the original purchase money and the taxes and other necessary expenses. The said E. Ashley Smith has already paid one-half of the first payment of the said purchase price and one-half of the expenses and improvements, being all thereof that by said agreement between said Morgan and Helmer said Helmer was to ¡Day, the receipt of which is hereby acknowledged, and in consideration of the premises the said Helmer doth hereby sell, assign, transfer and set over to said E. Ashley Smith all his right, title and interest in and to the said several contracts and in and to the lands and premises therein described, to have and to hold to him, his executors, administrators and assigns forever, subject, nevertheless, to the following provision, to wit:</p> <p>“ Whenever, a/nd as soon as the said premises and lands shall home been sold, as is contemplated in and by- said agreements, the sodd Smith from his proportion of the purchase money shall first home refunded to him and be reimbursed the whole amount he shall home paid, with interest thereon, and whatever su/rplus shall remain, if any, shall then be divided equally between said Helmer and Smith, and the land then and thereafter remaining unsold shall be divided under said contract, so that said Smith and Helmer shall home equal shares. Quality and quantity relativo* considered.</p> <p>“ In case said premises shall in any manner be divided and partitioned before enough shall have been sold to reimburse said original purchase money, interest and other improvements and expenses, then upon said Helmer paying to him, said Smith, the equal one-half of the amount so paid by said Smith, with interest thereon, or a sum sufficient with what said Smith may have received from the sale of said lands to reimburse him for such one-half, then said land shall be divided and partitioned so that said Helmer and Smith shall have and -own equal shares, quality and quantity relatively considered, and each of said shares shall be subject to such rights therein as Roby may be entitled under said contract between said Morgan and said Roby and entitled to its proportion of the sum or sums to be paid by said Roby, and in case of such partition and division last provided for, said Helmer hereby covenants and agrees to so pay and reimburse said Smith the equal one-half of said payments so made by him and interest thereon, first applying to such payments whatever he may have received from the sale of said lands, and-in consideration of the premises the said Helmer hereby covenants and agrees that, in case any loss shall occur in the enterprise and adventure, that he, said- Helmer, shall and will pay to him, said Smith, the equal one-half of such loss, and in arriving at the result, interest upon all payments hy said Smith shall be computed and allowed him.'</p> <p>“ Witness our hands and seals, at Lockport, N. Y., this 4th day of February, A. D., 1814.</p> <p>“JOSEPH W. HELMER. [Seal.]</p> <p>“E. ASHLEY SMITH. , [Seal,]”-</p> <p>August 5, 18J6, Joseph W. Helmer was indebted to the First National Bank of Lockport, N. Y., in the sum of $10,306.31, for which the bank held his promissory note; and for the purpose of securing the payment of said note said Helmer, by a written assignment, under seal, and dated that day, assigned to said bank all his interest in the three contracts “ as collateral security for the payment of any and all indebtedness, of whatever name and character the same may be, which I am now under to said bank, and for the payment of any paper which may be taken for, or in renewal, or in substitution therefor, from time to time.”</p> <p>This note was renewed from time to. time, the last renewal being dated July 11, 1877, by which Joseph W. Helmer promised to pay to his own order $10,306.3Í, with interest, six months after date, at the First National Bank of Lockport, and thereupon he indorsed and delivered the note to said bank, no part of which, principal or interest, has been paid.</p> <p>The plaintiff has succeeded to the rights of the bank in said note and contracts.</p> <p>Morgan and the defendant advanced the moneys to pay for the land, as provided in said contracts, and from time to time until January 21, 1891, parcels were sold and payments received, and on the date last mentioned the last parcel was sold and payment therefor received.</p>

Appeal by the defendant, The Delaware, Lackawanna and Western 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 Oneida on the 9th day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Property bought with pension money — it cannot be sold for the non-payment of taxes — certificate of tax sale presumed — assessment upon property held by a husband and wife■—■“a safe although modest maintenance" only exempt — record received in support of a judgment.</p> <p>Where pension moneys are directly traceable into a purchase of property necessary or convenient for the support of the pensioner or his family, such property is exempt from taxation.</p> <p>Section 1393 of the Code of Civil Procedure, relating to exemptions to pensioners, makes no distinction between a levy and sale by virtue of an execution and a sale for the non-payment of taxes.</p> <p>Where a pensioner brings an action to set aside a sale, for the non-payment of taxes, of property bought with pension moneys, but fails to show that a certificate of sale was issued by the county treasurer, the court will presume, in a case where the answer alleges that “ thereafter said county treasurer duly advertised and sold the same to the defendant as provided by law,” that the county treasurer performed the duty devolved upon him by statute, and issued the certificate.</p> <p>Semble, that the wife of a pensioner who is a tenant by the entirety of real property purchased with pension moneys may be assessed for taxes thereon; but where the tax was assessed in the name of the husband (he being an “occupant”) upon the property as a whole, and the advertisement of sale was in the same form, and the sale was apparently of the entire estate in the property, it was held that the sale would not be regarded as of her interest therein only.</p> <p>Semble, that where property bought with pension moneys so increases in value as to be far beyond the needs of the pensioner and his family for a “ safe although modest maintenance,” the entire property will not continue to be exempt, ■ even if occupied by the pensioner and his family, but only such proportion of it as is necessary to such maintenance.</p> <p>Upon the hearing of an appeal from a judgment a record maybe produced in support of the judgment, and the court may, if it deems it necessary, direct it to be filed with the record.</p>

<p> Double insurance, intention is essential to it—■mistake in proofs of loss—conditions construed against the insurer. </p> <p>Double insurance, resulting from the operation of law and without design upon the part of. the insured, is not a violation of the true spirit and intent of a condition contained in a policy that it shall be void if the insured shall, without the consent of the insurer indorsed thereon, “ hereafter make or procure any other contract of insurance, whether valid or not,’ on. property covered in whole or in part by this policy;” and, where there is no imputation of fraud, the insured may show, by facts and circumstances outside of the policy, that it was not his intention to obtain double insurance.</p> <p>In an action upon a fire insurance policy the plaintiff is not concluded by a statement contained in the proofs of loss, that there was other insurance upon the property insured, but may show that this statement was made by mistake, arid that as a matter of fact there was no such additional insurance. .</p> <p>It seems, that the risk covered b.y a policy of insurance upon “wagons, harnesses,” etc., situate in a certain place, constituting part of the paraphernalia of a traveling circus, which is being stored during the winter, is not “ shifting,” and will not be construed to cover wagons and harness, also constituting part of such paraphernalia, which are subsequently brought to that place, and that, therefore, the obtaining of a policy of insurance upon the goods subse- . quently brought there does not as matter of law constitute double .insurance.</p> <p>A condition in a Are insurance policy relative to additional insurance should be construed strictly against the insurer, and where the breach of such a condition is asserted as a defense, the burden is upon the insurer to establish it by competent and satisfactory evidence.</p> <p>Where the terms of a policy of insurance may be understood in more than one sense, the words are not to be taken in their broadest sense, but in that in which there is reason to suppose that they were understood by the assured.</p>

Motion by the plaintiff, John Burns, 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 at a Trial Term of the Supreme Court held in and for the county of Orleans on the 25th day of May, 1896.

Motion by the plaintiff,'George H. Eckert, for a' new. trial upon a case containing exceptions, ordered to be heard at the General. Term in the first instance upon the verdict of a jury ih favor of the defendant John S. Eckert rendered after a trial at the Cayuga Circuit on the 9th day of May, 1895.

Appeal by the defendant, The City of Lockport, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Niagara on the 27th day of April, 1896, upon the verdict of a jury for $90.0, and also from an- ordei; entered in said clerk’s office on the 27th day of April, 1896, denying-the defendant’s motion for a new trial made upon the. minutes, • The action was brought to recover the damages resulting from personal…

Appeal by the defendant, The City of Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of April, 1896, upon the verdict of a jury for $615.50, and also from air order entered in said clerk’s office'on the 2d day of .May, 1896, denying the defendant’s motion for a new trial made upon the minutes; On the 23d of February, 1895, about eight o’clock in the evening, while plaintiff was…

<p>defendant, The Vulcan Iron Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the dbfk of the county of Oswego on the 18th day of February, 1896, upon\the verdict of a jury for $5,000, and also from an order bearing date itf® 22d day of February, 1896, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. \</p> <p>Plaintiff received injuries on the 28th day of June, 1895, while at work laying up a brick wall which hé and jne Petrie had agreed to erect in consideration of the price of four dollars and fifty cents per thousand brick, in a block situated at the corner of Bridge street and West Second street in the city of Oswego. The wall was to be erected from the east side of Second street westerly about fifty feet to divide the premises owned by one Holbrook from premises owned by the defendant. South of the wall some ten feet commenced the premises of the defendant, and upon its premises were situated a machine shop in which was a shaft upon which were pulleys and collars, and in the northerly pulley on the shaft was a collar in which was a set screw some five-eighths of an inch square and the end set out seven-eighths of an inch. The shaft in the defendant’s building extended north and south at right angles to, and came within a few inches of, the line of the brick wall plaintiff was laying up.</p> <p>In the complaint it is alleged: “ That as plaintiff was passing under said shaft, in pursuance of his employment his clothing caught on said set screw or bolt, and said shaft, being in rapid motion, was whirled about said shaft and most seriously injured by being dashed against the -beams, posts and pieces of timber in close proximity to said shaft.”</p> <p>The plaintiff alleges that the accident was caused through the negligence of the defendant, and that the injuries which he sustained were inflicted without any negligence or fault on his part. '</p> <p>The answer, among other things, alleges that the injuries received by the plaintiff were “ solely by reason of and through his own carelessness and negligence; and that by reason of such carelessness and negligence, which so caused and'contributed to such injury and accident, the plaintiff cannot recover in this action.”</p> <p>At the close of the plaintiff’s evidence the defendant moved for a nonsuit on several grounds. The motion was denied and an exception was taken.</p>

<p>Insurance — the company is not the judge to decide that the insured was intemperate — it is a question for the jury — right to drink moderately.</p> <p>A provision in a policy of life insurance that; if the insured shall “become so intemperate as to impair his health or induce delirium tremens, said company shall have the unquestioned right, upon becoming satisfied of such fact, to terminate this contract immediately upon the tender to the party in interest of the legal reserve,” does not constitute-the company "the sole judge as to whether or not the insured had become so intemperate as to impair his health.</p> <p>In such a case it is proper for the .trial judge to .submit to the jury the question as to whether the insured had become so intemperate as to impair his health at the time the company attempted to forfeit the contract of insurance.</p> <p>Where the answers of the assured, in his application for the policy, stated that he used alcoholic stimulants moderately, it is not improper for the court to charge the jury, on the question as to whether his intemperance' aggravated the Bright’s disease of which he died, that he was “ not precluded from drinking moderately.”</p>

<p>Insurance—'cancellation — statement in the proofs of loss' of other insurance — immediate notice of the loss.</p> <p>In an action brought to recover upon a policy of insurance issued on the 17th day of November, 1893, upon property in Seneca Falls, it appeared that while the insured, the plaintiff, was visiting in the city of Rochester, the policy was presented to her there by a member of a firm of local agents; that she paid for it and retained it until a loss, which occurred on December 3, 1893, and never at any time surrendered it. On November 84, 1893, the insurance company mailed to the local agent a letter, addressed to the plaintiff, requesting the cancellation of the policy. Thereupon the local agent filled out two policies in other companies in place of it, and by a letter, dated November 89,1893, mailed these to the plaintiff “to take the place of” the policy in suit, but did not return nor offer to return any of the premium. This letter was not received by the insured until the afternoon of the day before the fire, and was not opened by her until the day after the fire. The policy in question required the company to give five days’ notice of cancellation, and provided for a pro rata return of the premium.</p> <p>Held, that no cancellation of the policy was established.</p> <p>A provision of a policy requiring that proofs of loss thereunder shall contain a ■ statement “of all' other insurance, whether valid or not, covering any of the said property," does not require a statement to be made of mere propositions for insurance.</p> <p>What notice is a sufficient compliance with a provision of a policy that immediate written notice of the loss shall be given to the company, considered.</p>

Appeal by the defendant, Kate- E. Kent, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 11th day of'September, 1896, upon the decision of the court rendered after a trial at the Erie Special Term. In June, 1895, thfe plaintiff commenced this action against the Bay State Beneficiary Association and Kate E. Kent.

<p>Cross-appeals by the plaintiff, William F. Wright, and by the defendant, John H. Smith, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 16th day of April, 1896, upon the decision of the court rendered after a trial at the Erie Special Term.</p> <p>The court pronounced two conclusions of law, viz.: “ That the plaintiff is not entitled to recover from the defendant the property, money and securities transferred by said plaintiff to said defendant as stated in the above second finding of fact, nor to the order of this court enjoining or restraining the defendant from assigning or transferring the same.</p> <p>“ Second. That the plaintiff is entitled to the judgment of this court to permanently enjoin the defendant from selling, assigning, transferring, enforcing or collecting the judgments obtained by him against the plaintiff herein as stated in the above fifth finding of fact.”</p> <p>Plaintiff appeals from that portion of the decision and judgment that is adverse to him, and the defendant' appeals from that portion of the decision and judgment that is adverse to him. Both appeals come up upon one case and'exceptions.</p>

<p>Infant — mortgages executed by him — action to home them declared invalid — d tender of the money, when squandered in infancy, is unnecessary— tender of a deed in which the grantee’s name is left blank — burden of proof.</p> <p>One Kane, who had received, as consideration for'two mortgages executed by him while under twenty-one years of age, certain moneys and a conveyance of real estate, upon obtaining his majorit-y promptly served notice of his disaffirmance of the mortgages and tendered a reconveyance of the property conveyed to him, but having squandered, while he was an infant, the money which he had received, he did not offer to return it.</p> <p>Held, that the tender was sufficient;</p> <p>That if, in the deed tendered, the grantee’s name was in blank, th'e mortgagee would, on accepting it, have been authorized to insert the name; •</p> <p>That if the mortgagee asserted a subsequent ratification of the mortgages after the service of the infant’s notice of his election to disaffirm, the burden rested upon the mortgagee to establish that fact.</p>

<p>Appeal by the defendant, the New York Central and Hudson River Railroad Company, from ail order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 18th day of June, 1896, striking out from the proposed case and exceptions, on the application of the plaintiff’s counsel, words used by plaintiff in opening the case to the jury. Also striking out certain words used in “ closing the case to the jury,” which are set out.</p> <p>It appears by the order that the striking out of the language used in the opening and summing up, quoted in the order, was objected to and that the defendant excepted to the ruling striking out the language, and insisted the same should remain as a part of the case upon appeal. It appears by the appeal book herein that a verdict was-taken at the Circuit for $15,000 in favor of the plaintiff, and a motion was made on the part of the defendant for a new trial upon the minutes, and denied, as appears by a copy of the order set out in the appeal book, which order was granted on the 26th of October, 1895. On June 18, 1896, the ■ defendant appealed to this court from the order made on that day.</p>

<p>Appeal by the defendant, Mary Ann -O’Neill, from a judgment of. the Superior Court of Buffalo in favor of the plaintiff, entered in the office of the clerk of said court on the 11th day of November, 1891, upon the decision of the court rendered after a trial at a Trial Term thereof before the court without a jury.</p> <p>Action to recover for the possession of a piece of land in the city of Buffalo beginning on Sixth street on the southwest line .of Sixth street, at a point fifty-eight and one-half feet south of York street, running thence southwesterly and at right-angles with Sixth street one hundred and.ten feet; and thence at right angles with the last mentioned boundary and parallel with Sixth street, twenty-eight feet; thence at right angles to Sixth street, one hundred and ten feet to the southwesterly line of Sixth street; thence northwesterly along Sixth street twenty-eight feet to the place of beginning.</p> <p>The court found as conclusions of law, viz. : “ That the plaintiff, is the owner in fee simple absolute and entitled to the immediate possession of the premises described in the complaint * * * now in the possession of the defendant,” with costs. Exceptions were filed to the findings of the court.</p>

Appeal by the defendant, John G. Fischer, from a judgment of the Superior Court of Buffalo in favor of the plaintiff, entered in the office of the clerk of said court on the 18th day of December, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Manufacturers and. Traders’ Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 29th day of February, 1896, upon the decision of the court rendered after a trial at the Erie Trial Term before the court without a jury, dismissing the complaint upon the merits. The action was brought to recover of the defendant upon a promissory note which reads as follows: “ $201.93.

Appeal by the defendants, Tirzah M. Gage 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. 28th day of December, 1896, upon the decision of the court rendered after a trial at the Chautauqua Special Term.

Appeal by the defendant, Thomas J. O’Brien, 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 21st day of February, 1896, upon the verdict of a jury for $650, and also from an order entered in said clerk’s office on the 21st day 'of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Elizabeth Laible, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Wayne on the 1st day of June, 1896.

Appeal by the defendant, The City of Syracuse, 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 lYth day of October, 1895, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 15th day of JSTovember, 1895, denying the defendant’s motion for a new trial made upon the minutes.

<p> Agreement by-a mortgagee to have a policy transferred—right of the mortgagor, on his failure to do so, to offset its amount—such oral agreement is not merged in the mortgage. </p> <p>Proof of an independent contemporaneous oral contract, although relating to the same subject-matter as a written contract, does not violate the rule that paroi evidence is not admissible to explain, vary or contradict a written instrument.</p> <p>Upon the sale of certain premises, the grantor took back a bondi and mortgage containing a covenant that the mortgagors would keep the premises insured for the benefit of the mortgagee, in a sum of not less than §700. At the time of the conveyance, the grantor, as an inducement to the grantees to make the’ purchase, verbally agreed to procure the transfer to the grantees, as owners, of a policy of insurance which he held for §700 on buildings on the mortgaged premises, and to have the policy made payable to him as mortgagee, ibsequently, .the buildings upon the mortgaged premises were destroyed by fire, and the mortgagors then, for the first time, learned that the mortgagee had neglected to procure the transfer of the policy, and that, consequently, the insurance company was not-liable thereunder.</p> <p>In an action to foreclose the mortgage, it was</p> <p>Held, that the agreement to procure the transfer of the policy of insurance was a ■ collateral contract, independent of and distinct from the covenant to insure contained in the bond and mortgage, and that; consequently, paroi proof of such agreement was admissible;</p> <p>That such agreement was not only supported by an adequate consideration, but was one which was also capable of absolute fulfillment without interfering with the obligation under which the mortgagors rested to make good, the covenant contained in their mortgage;</p> <p>That an independent action would lie by the mortgagors for the breach of the verbal contract, and that, therefore, the damages occasioned by the breach were a proper subject of recoupment in the foreclosure action.</p> <p>Green, J., dissented.</p>

Appeal -by the defendant, Robert 1VL Benedict, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Ontario on the 3d day of September, 1896, upon the report of a referee, as determines : “ (1) That the map tiled by the plaintiff board of water commissioners is a substantial compliance with the statute.

Appeal by the defendant, Moses Foltz, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 2d day of September, 1896, denying his motion to set aside a. judgment in foreclosure as against the said Foltz, together with the sale and all proceedings thereunder as irregular and void, because at the time of its entry the attorney for Foltz was disqualified to .act as such, he having been…

Appeal by the defendant, Beaman Catto, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 9th day of September, 1896, denying his motion to set-aside a salé made pursuant to the judgment entered herein. March 31, 1896, the plaintiff commenced this action for the foreclosure of a mortgage. The defendant Catto interposed an answer.

<p>Bond and mortgage signed by one as trustee — it creates no individual liability.</p> <p>Where a cestui que trust, upon purchasing certain real estate, in order to secure part of the purchase price thereof gives a bond and mortgage executed and signed by himself and his trustee, which provide that said trustee, as such, and the cestui que trust are bound jointly and severally in the amount therein named, the trustee is not liable individually upon such bond, but only in his capacity as trustee.</p> <p>Note.—The rest of the eases of this term will be found in the next volume, 14 App. Div.— [Rep.</p>

<p>Judgment affirmed, with costs.</p>

<p>Order appealed from in each case affirmed, with ten dollars costs and disbursements.</p>

<p>Order appealed from affirmed, with ten dollars costs and disbursements.</p>

<p>Judgment reversed and a new trial granted, with costs of this appeal to the appellant.</p>

Order referring action affirmed, without costs. Order denying motion to resettle order modified by striking out award of costs, and order as modified and order denying motion to vacate affirmed, without costs.

<p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Order affirmed, with, ten dollars costs and disbursements.</p>

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, the amount of fine to be imposed to be fixed on settlement of order.

Order modified, as directed in opinion in. Beehman v. The Samé Defendant (see ante, p. 279), decided herewith, and, as thus modied, affirmed, without costs to either party.

<p>Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer over on payment of costs in this court and in the court below.</p>

<p>Judgment affirmed, with costs.</p>

Judgment affirmed on the opinion of the referee, with costs. All concurred. The following is the opinion of the referee: