Volume 13 — E.H. Smith

<p>Negligence — Company Owning Telephone Pole not Responsible Eor Injury prom Insulator, not Furnished by it, Falling erom Crossarm in Exclusive Possession oe Another Company. A company owning a telephone pole is not responsible for an injury to a traveler in the street, caused by the falling, through the act of a stranger in changing the position of a wire, of an insecure insulator, not furnished by it, from a pin on a crossarm of its pole, which crossarm, with the pins thereon, was in good condition and in the exclusive possession of another company, to which it had been turned over.</p>

The facts, so far as material, are stated in the opinion. The General Term was in error in deciding that chapter 622 of the Laws of 1886, under which the commissioners for grading Seventh avenue assumed to act, in omitting to impose any assessment' for the expenses of said improvement upon the property belonging to the Sisters of Mercy fronting on said avenue, was not unconstitutional in consequence of its being a local act, the subject of which was not expressed in the…

The original defendant, Charles W. Parker, died after the judgment of the General Term, and the present defendant and appellant succeeded to all his property and interests and was substituted in liis place. The nature of the action and the facts, so far as material, are stated in the opinion. The judgment should be reversed and a new trial granted.

The nature of the action and the facts, so far as material, are stated in the opinion. Actual notice of the condition of the sidewalk was given to the city officers having charge of the highways a reasonable time before the happening of the accident in question. (16 Am. & Eng. Ency. of Law, 790 ; Wade on Notice, §§ 5, 672, 673, 674, 685 ; Williamson v. Brown, 15 N. Y. 359 ; Gurtis v. Mundy, 3 Metc. 405 ; Fulton Bank v. N. Y. & S. C. Co., 4 Paige, 127 ; M. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The doctrine of res adjudicata does not extend to process not expressly awarded by the judgment. (Bigelow on Estoppel [5th ed.], 102, 103 ; Goodwin v. Griffis, 88 N. Y. 640.) An inquiry whether process is justified by judgment goes to the extent whether it rests upon any cause of action whatever. (Brownsville v. Loague, 129 N. S. 493 ; Wisconsin v. P. Ins.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of defendant when in its employ as a brakeman upon a railroad operated by it. The facts, so far as material, are stated in the opinion. The statement made by the plaintiff’s counsel in summing up to the jury, that the former verdict was for $8,000, was error. ( Wersebe v. B. & S. A. R. Co., 1 Misc.

<p>1. Tax — Copyrights. Copyrights, granted by the United States, are not subject to the taxing power of the state.</p> <p>2. Foreign Corporations—Franchise Tax—Exemption of Copyrights. Copyrights, as distinguished from, the tangible property produced thereunder, owned by a corporation df another state carrying on business in this state, are not taxable as “capital employed by it within this state,” under section 182 of the Tax Law (L. 1896, ch. 908).</p> <p>8. Good Will Defined. Good will embraces at least two elements, the advantage of continuing an established business in its old place, and of continuing it under the old style or name. While it is not necessarily altogether local, it is usually to a great extent, and must, of necessity, he an incident to a place, an established business or a name known to the trade.</p> <p>4. Taxation of Good Will Acquired in this State. The good will of a foreign corporation, acquired and built up in this state and having a market value here, where its business is carried on, and nowhere else, is not exempt from taxation as capital employed within this state, merely because it is intangible.</p> <p>5. Good Will of Foreign Corporation, Carrying on Business Wholly in this State, is Subject to Franchise Tax. Where a corporation which, although organized in another state, has -never done any business, owned any property or had an office there, hut which has carried on i ts business wholly in this state, where all its tangible property is located, has acquired a good will created here and has built up the same by the exercise of its corporate franchises and through the increased value of its tangible property in this state, such good will is properly taxable as capital employed within this state, under section 182 of the Tax Law.</p>

The nature of the action and the facts, so far as material, are stated in the opinions. The judgment in partition was the judgment of the Supreme Court, a court of record* and a court having jurisdiction of partition actions. Everyintendment will, therefore, be in support of the judgment.. Jurisdiction and its validity will be presumed until the contrary is affirmatively shown.

<p>1. Town of New Utrecht — Gas-Lighting Contract — Illegal Clause. The clause in the contract of December 26, 1889, between the board of improvement of the town of New Utrecht and the Kings County-Gas and Illuminating Company, to the effect that the board would not give its consent to any other gas or electric company to lay pipes in the streets of the town during the term of the agreement, was not authorized by the act (L. 1888, ch. 576) establishing a board of improvement and providing for lighting the town of New Utrecht, was consequently beyond the power of the board, and, therefore, illegal.</p> <p>2. Illegal Clause in Contract not Validated by Statute. The illegal clause in the contract is not to be deemed validated by the provision to the effect that any contract entered into by the board of improvement “is hereby, in all respects, confirmed,” found in the act of 1891 (Ch. 59) amending the New Utrecht act of 1888, as imputing that intention to the act would render it violative of the constitutional requirement that no local bill shall embrace more than one subject, and that shall be expressed in the title.</p> <p>3. Illegal Clause in Contract Terminated by Consolidation of Town—no Basis for Taxpayer’s Action. The illegal clause in the contract came to an end on the termination of the official life of the board of improvement through the consolidation of the town with the city of Brooklyn in 1894, has no binding effect upon other municipal officials vested with the power to determine whether leave should be granted to other companies to lay pipes in the streets, as provided by chapter 40 of the General Laws (L. 1890, ch. 566), and has become a dead issue, from which a taxpayer requires, no relief and which therefore will not sustain a taxpayer’s action.</p> <p>4. Extension of Contract. The unconstitutional clause in the New Utrecht act of 1891 (Ch. 59), purporting to confirm the existing contract of the board of improvement, is so independent as not to impair or in any wise affect the other provisions of the act; and the provision empowering the board to extend the term of the original contract for fifteen years may therefore be treated as valid.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, made October 21, 1898, reversing an interlocutory judgment overruling a demurrer to the fourth defense contained in the answer, and sustaining the demurrer. The nature of the action, the facts, so far as material, and the question certified for review are stated in the opinion.

The facts, so far as material, are stated in the opinion. The assessors were without jurisdiction unless the relator was .a resident of the town of Clifton Park, and the evidence-is undisputed that he was not such resident, but was and had been for many years a resident of the city of Cohoes. (People v. Supervisors, 11 N. Y. 563 ; Mygatt v. Washburn, 15 N. Y. 316 ; People ex rel. v. Crowley, 21 App.

Small, a deceased minor. On the 5th of December, 1895, Joseph Bolton was appointed general guardian of Grace A. Small, a minor, by the Surrogate’s Court of Rensselaer county.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 23,1899, aifirming an order of Special Term that a peremptory writ of mandamus issue, requiring James S. Lyke, as superintendent of the poor of the county of Tompkins, to issue his warrant on the county treasurer of Tompkins county for the payment to John B. French, as overseer of the poor of the city of Ithaca, of the sum of §71.75, with interest from May 21, 1898, said sum being the expense necessarily incurred in relief of certain poor persons claimed to be chargeable to the county of Tompkins.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The support of the poor persons in question is chargeable to the city of Ithaca and not to Tompkins county. (L. 1896, ch. 225, §§ 40, 41 ; L. 1897, ch. 203, § 57 ; Matter of Connellan, 25 Misc. Rep. 592 ; Town of Onondaga v. City of Syracuse, 22 Misc. Rep. 265 ; Matter of McCutcheon, 25 Misc. Rep. 650 ; Matter of Prime, 136 N. Y. 347 ; McCluskey v. Cromwell, 11 N. Y. 593 ; Tompkins v. Hunter, 149 N. Y. 117 ; Newell v. People, 7 N. Y. 97 ; People ex rel. v. Woodruff, 32 N. Y. 355 ; Matter of Miller, 110 N. Y. 216 ; Karst v. Gane, 136 N. Y. 316.)</p> <p>The law under which these persons are chargeable to the county is unchanged by the revision of 1896. (1 R. S. 621, § 30 ; L. 1896, ch. 225, § 41; Hughes v. Farrar, 45 Me. 72 ; Black Interp. Laws, 368 ; Endlich Interp. Stat. § 381 ; Henavie v. N. Y. C. & H. R. R. R. Co., 154 N. Y. 278 ; Sitterly v. Murray, 63 How. Pr. 367 ; Matter of McCutcheon, 25 Misc. Rep. 650 ; People ex rel. v. Comrs. of Taxes, 95 N. Y. 554; People ex rel. v. McClave, 99 N. Y. 83 ; Bell v. Mayor, etc., 105 N. Y. 139 ; People ex rel. v. Lacombe, 99 N. Y. 43, 49 ; People v. U. Ins. Co., 15 Johns. 380 ; Theriat v. Hart, 2 Hill, 380.) Chapter 203 of the Laws of 1897 in no way affects this question. (Town of Onondaga v. City of Syracuse, 22 Misc. Rep. 265.)</p>

The facts, so far as material, are stated in the opinion. By reason of section 1 of title 14 of the Consolidated School Law, the state superintendent is vested with sole power to determine whether the. violation of duty by the relators was willful, and under this provision the courts of this state are without power or authority to review or question his decision upon the merits or otherwise. (L. 1892, ch. 677, § 19 ; Colgate v. Penn.

<p>1. Gift—Savings Bank Deposit in Trust—Finding of Fact. A gift, whether in the form of a trust, or otherwise, always involves the intention of the donor; and when the trial court has found that there was a gift which took the form of a deposit in a savings bank in trust for the donee, and the Appellate Division has unanimously decided that the findings of fact ure supported by the evidence, the finding cannot be questioned in the Court of Appeals.</p> <p>2. Additions to Trust Account Impressed with Original Gift. Where there is a conclusive finding that an original deposit in a savings hank, intended as a gift, was in the name of the depositor as trustee for the donee, subsequent deposits made to the credit of the same account must be deemed, prima facie, to have been made for the same purpose as the original deposit by which the trust was created, and cannot he detached therefrom, in the absence of a finding that they were intended for some other purpose or that they were not made for the original beneficiary's benefit.</p> <p>8. Original Beneficiary Entitled to Trust Account, Including Additions and Interest, at Date of Closing of Account by Trustee. Where the creation of an irrevocable trust, by the opening of a savings hank account in the name of the depositor as trustee for the beneficiary, constituting a valid gift, is established by conclusive findings, and it is also found that the account was closed by the trustee and the fund transferred to the name of another as beneficiary, without the consent of the original beneficiary, and so retained until the trustee’s death, the original beneficiary is entitled, as matter of law, not only to the original deposit but also to additional deposits and accumulated interest included in the original account at the date of its closing and transfer, in the absence of a finding that the act of the trustee in increasing the account was with a different intention from that which accompanied the original deposit, although it is found that the trustee exercised control over all the deposits up to the time of his death.</p> <p>4. Appeal — Scope of Judgment. The provision, that the Court of Appeals may " grant to either party such judgment as such party may be entitled to ” (Code Civ. Pro. § 1337), means such judgment as a party may be entitled to upon the facts found.</p>

plaintiffs entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiffs waived the ■condition that a note should be given as a condition for passing the title.

This action was brought by the plaintiff to obtain a judgment for the final settlement of his accounts as trustee under the last will and testament of Catharine Lowerre, deceased, and for the distribution of one-sixth part of said Catharine Lowerre’s estate, held in trust for Adelaide L. Mildeberger, now deceased, who was the granddaughter of Mrs. Lowerre and the wife of the appellant, Elwood Mildeberger. The facts, so far as material, are stated in the opinion.

<p>1. Sale — Statement of Objections to Acceptance of Goods is a Waiveb of Unstated Objections. When the refusal to accept purchased goods is based upon particular objections, formally and deliberately stated, all other objections are deemed waived; and the vendor, in order to recover the price, need only prove compliance with the contract of sale in the particulars covered by the stated obj ections.</p> <p>' 2. Evidence — Bxpebt Opinion as to Quality and Condition of Commodity. The question of the quality and condition of gambier, an article imported for a particular purpose and requiring the. existence of certain especial conditions, in order that the grade of its quality and condition in the market may be determined, is within the rule which permits the introduction of the opinions of witnesses competent to speak upon the subject when, from the nature of the subject, facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment.</p> <p>3. Admissibility of Bxpebt Testimony. It is not an objection to the admissibility of the opinions of expert witnesses, that the question put to them involved the point to be decided by the jury.</p>

- The nature of the action and the facts, so far as material,, are stated in the opinion. The rule that where a note is. presented by and discounted for its maker the purchaser-must be held to have notice that the indorsement is accommodation, and hence outside the business of the firm, and that the burden is thrown upon the holder of the note of proving the authority or consent of the other partner, is not applicable to this case.

The nature of the action and the facts, so far as material, are stated in the opinion. While it is the law that when a promissory note is presented by the maker, it is to be construed as notice to the purchaser that the indorsements are accommodation, this rule cannot be applied to the $2,500, forming a part of the $5,000 note, because to the extent of $2,500 thereof no such notice can be held to exist. (A. E. Nat.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1896, upon an order affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The plaintiffs having failed to prove an essential element of the cause of action set up in the complaint, the court erred in refusing to dismiss the complaint. (Ward v. M. E. R. Co., 152 N. Y, 39 ; White v. M. R. Co., 139 N. Y. 19 ; White's Bank v. Nichols, 64 N. Y. 65 ; K. C. F. Ins. Co. v. Stevens, 87 N. Y. 287 ; Gerard’s Titles to Real Estate, 489 ; Lahr v. M. E. R. Co., 104 N. Y. 268 ; Herzog v. N. Y. E. R. R. Co., 76 Hun, 486 ; M. R. Co. v. Mayor, etc., 89 Hun, 429 ; Snell v. Levitt, 110 N. Y. 595 ; Matter of U. E. R. R. Co., 112 N. Y. 61; Ville v. Judson, 82 N. Y. 33.) The court below erred in mating the order which brings in Morris Goldstein as an additional party plaintiff, and permits service of a supplemental complaint. (Code Civ. Pro. § 1301; Griswold v. M. E R. Co., 122 N. Y. 103 ; Sommer v. N. Y. E. R. R. Co., 60 Hun, 148 ; Siefke v. Met. E. R. R. Co., 14 N. Y. Supp. 763 ; Hutton v. M. R. Co., 19 App. Div. 243 ; Lindenheim v. N. Y. E. R. Co., 28 App. Div. 170 ; Oehler v. N. Y. E. R. R. Co., 4 App. Div. 152 ; Foote v. M. E. R. Co., 147 N. Y. 367.) The learned trial justice erred in denying the defendants’ motion for a jury trial of the claim for rental damages during Koehler’s ownership. (Pegram v. N. Y. E. R. R. Co., 147 N. Y. 135 ; Code Civ. Pro. §§ 968, 975 ; Lynch v. M. E. R. Co., 129 N. Y. 274 ; Van Allen v. N. Y. E R. R. Co., 144 N. Y. 174 ; Williams v. N. Y. E. R. R. Co., 16 N. Y. 97 ; Wheelock v. Lee, 74 N. Y. 495 ; Bradley v. Aldrich, 40 N. Y. 504 ; Saxton v. N. Y. E. R. R. Co., 12 App. Div. 263.) The learned trial justice erred in admitting opinion evidence as to the value of specific property other than that in suit. (Jamieson v. K. C. E. R. Co., 147 N. Y. 322.)</p> <p>The paper claimed to have been signed by Martin Rasher, erroneously called by the defendants a consent, is not a bar to the maintenance of this action. (Galway v. M. E. R. Co., 128 N. Y. 132 ; Roberts v. N. Y. E. R. R. Co., 155 N. Y. 38 ; Koehler v. N. Y. E. R. R. Co., 9 App. Div. 449 ; A. B. N. Co. v. N. Y. E. R. R. Co., 129 N. Y. 265 ; I. Nat. Bank v. Adams, 28 Hun, 108 ; Dunham v. Townshend, 118 N. Y. 281 ; Munoz v. Wilson, 111 N. Y. 298 ; Dunford v. Weaver, 84 N. Y. 445 ; Wines v. Mayor, etc., 70 N. Y. 613 ; Rockwell v. Merwin, 45 N. Y. 168.) The order bringing in Morris Goldstein as an additional party plaintiff Was proper. (Code Civ. Pro. § 756 ; McGean v. M. E. R. Co., 133 N. Y. 9 ; Domschke v. M. E. R. Co., 148 N. Y. 337 ; Senft v. M. E. R. Co., 29 N. Y. S. R. 519 ; Getty v. Spaulding, 58 N. Y. 636 ; Oehler v. N. Y. E. R. R. Co., 4 App. Div. 152 ; Post v. Palmer Co., 1 How. Pr. [R. S.] 508 ; Cuff. Dolan, 8 Abb. [N. C.] 195 ; Smith v. Zalinski, 94 N. Y. 519 ; Nickerson v. Crawford, 25 Abb. [N. C.] 91.) The defendants were not entitled to a jury trial of the claim for rental injury suffered during the time of Koehler’s ownership. (Lynch v. M. E. R. Co., 129 N. Y. 279 ; Shepard v. M. R. Co., 117 N. Y. 442 ; Hunter v. M. R. Co., 141 N. Y. 281 ; Van Allen v. N. Y. E. R. R. Co., 144 N. Y. 174 ; Pond v. M. E. R. Co., 112 N. Y. 186 ; Klipstein N. Y. E. R. R. Co., 8 Misc. Rep. 457 ; Shepard v. M. R. Co., 117 N. Y. 442.) The claim of error in the admission of the evidence on cross-examination as to the value of the adjoining property is inadmissible. (Jamieson v. K. C. R. R. Co., 147 N. Y. 322.)</p>

The nature of the action and the facts, so far as material,, are stated in the opinion. The legislature did not intend to tax the representatives of domestic or resident associations such as the “American Lloyds.” (L. 1814, ch. 49 ( L. 1824, ch. 277 ; L. 1849, ch. 178 ; L. 1886, ch. 825; L. 1875, ch. 465; Matter of Breslin, 45 Hun, 210; Matter of Bd. of Street Opening, 12 Misc.

<p>1. New York City—Removal from Municipal Service—“Regular Clerk.” An inspector of water supply to shipping in the department of water supply of the city of New York is not a “regular clerk,” Within the meaning of section 1543 of the Greater New York charter (L, 1897, ch. 378), which provides that no regular clerk shall be removed until he has been allowed an opportunity of making an explanation.</p> <p>%. Protection of Civil Service Act of 1898 — Necessity of-Allegation of Competitive Position, in Proceeding for Reinstatement. To enable a person removed from the civil service of the city of New York in June, 1898, to insist, in a proceeding for a mandamus to compel reinstatement, that he was entitled, under chapter 186 of the Laws of 1898, to have the reasons of removal set forth and filed, and to have an opportunity to make an explanation, he must allege in his petition that the position from which he was removed was at the time in the competitive class.</p> <p>3. Appeal—Record Evidence not in Return. Record evidence not in the return cannot be resorted to in the Court of Appeals to secure a reversal.</p>

This action was brought to recover extra compensation for services rendered by the plaintiff for the defendant on the forty-seven Sundays which elapsed between April 26th, 1894, and March 22d, 1895. During this period the plaintiff held the position of section foreman in the street cleaning department of the city of New York, by regular appointment, at a salary of $1,000 a year, at which rate he has been paid for the whole of the said term of his employment.

<p>1. Mandamus — Discretionary Refusal of Writ not Reviewable in Court of Appeals. Where the order of the Special Term refusing a writ of mandamus does not state the ground of refusal, and the facts would have justified a refusal as matter of discretion, the refusal is not reviewable in the Court of Appeals, evén though the order of the Appellate Division, affirming the order of refusal, expressly bases its determination not upon discretion but upon the questions of law involved.</p> <p>2. Refusal of Mandamus to Canvassing Board when Relator Seeks Determination of Title to Office in Proceeding to which Incumbent is not a Party. When it appears that, by an application for a mandamus to a canvassing board, the relator seeks a determination that he has been elected to an office that is in the possession of another, claiming title thereto, who is not a party to the proceeding, a case is presented in which the court would be justified in refusing the writ as matter of discretion, leaving the relator to his remedy in the action provided by law for the determination of the title to an office.</p>

This was an action in equity, the nature of which and the facts relating thereto, so far as material, are stated in the opinion. Held: was properly construed by the trial judge, and contained no-restriction upon the sale of the stock by either party. (Mayor, etc., v. Conover, 5 Abb.

<p>1. Murder— Court of appeals.</p> <p>When the court of appeals, upon a review of the whole case, is satisfied that the defendant has not had a fair trial, or that injustice may-have been done, it has the power to order a reversal, even though no-exception was taken at the trial to rulings alleged to he erroneous. In all cases an exception is necessary in order to raise a pure question of law, and even then, under the general provisions of the Code, the said court is required to disregard exceptions which present only technical errors and which do not affect the substantial rights of the parties.</p> <p>3. Same—Assault.</p> <p>Upon the trial of an indictment for homicide, the court is not required to instruct the jury as to the law constituting the different degrees of assault. Assault, in any of its degrees, is not a necessary legal element in an indictment for homicide.</p>

This action was brought to recover compensation for services rendered to the board of water commissioners of the defendant village, in bringing about a sale of its water bonds. The plaintiff, who was a practicing lawyer, was a citizen and taxpayer of the village; he held no municipal office, but was a member of a committee of citizens appointed to assist in disposing of the bonds. The substance of the material evidence on the part of the plaintiff is set forth in the opinion.

The facts, so far as material, are stated in the opinion. The commissioners erred in holding that there was a taking of property. (A. B. N. Co. v. N. Y. E. R. R. Co., 129 N. Y. 271 ; Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11 ; Sawyer v. Davis, 136 Mass. 239 ; Beseman v. P. R. R. Co., 50 N. J. L. 235 ; Roberts v. N. Y. El. R. R. Co., 128 N. Y. 475 ; Pappenheim v. M. El. Ry.

<p>1. Ceimesal law—Confession.</p> <p>The confession is voluntary, where it is not made under the influence of fear produced by threats or upon any stipulation of the district attorney.</p> <p>2. Same.</p> <p>The confession of the accused, though not sufficient to warrant his conviction without additional proof that the crime charged has been committed, is sufficient for this purpose where there is ample evidence aside from the confession, corroborating the statements of the defendant.</p> <p>3. Same.</p> <p>The circumstantial evidence in this case furnishes proof of the commission of the crime in addition to the confession, and warrants the inference of deliberation and premeditation.</p>

<p>1. Murder—Self-defense.</p> <p>Before a party can justify the taking of life in self-defense, he must show that there was reasonable ground for believing he was in great peril; that the killing was necessary for his escape, and that no other safe means was open to him. When one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack if in his power to do so, and the right of attack for the purpose of self defense does not arise until he has done everything in his power to avoid its necessity.</p> <p>2. Same—Premeditation.</p> <p>If there was an intention to kill, which was deliberate and premeditated, and the killing followed, the crime was complete.</p> <p>8. Same.</p> <p>Where the proof justifies a jury in finding that the homicide was intentional, and resulted from sufficient deliberation and premeditation to warrant a verdict of murder in the first degree, the court of appeals will not interfere with the determination of the jury upon the facts.</p> <p>4. Same—Charge.</p> <p>The court will not be justified in disturbing the judgment below on the ground that the charge of the trial judge was not impartial, but was highly prejudicial to defendant, where the charge, when taken together, was fair, impartial and correct, both as to the law and facts, and was as favorable to the defendant as he was entitled to under the evidence.</p> <p>6. Same—Motive.</p> <p>Evidence that there had been a personal encounter between the defendant and decedent, in which the former had been practically defeated, and, humilated by his defeat and inspired by a spirit of revenge, returned to the place of the first affray and made a second attack, is sufficient to justify the jury in finding that the defendant had a motive for the commission of this offense.</p> <p>6. Same—Court or arrears.</p> <p>It is not the province of the court of appeals to review or determine controverted questions of fact arising upon conflicting evidence, but that the jury is the ultimate tribunal in such cases, and with its decision the court may not interfere, unless it reaches the conclusion that justice has not been done. ■</p> <p>7. Same—Cohression.</p> <p>If the defendant supposes that there is any conflict in the evi dence a to the circumstances under which his confe ssion was made, or as to whether it was voluntary or otherwise, he should request the submission of that question to the jury.</p> <p>8. Same.</p> <p>Since the adoption of section 395 of the Code of Criminal Procedure, the test of admissibility of the statement of a party accused of crime, whether made in the course of judicial proceedings or not, is whether it was voluntarily made, and that is to be determined by its nature and the circumstances under which it was made.</p> <p>9. Same.</p> <p>It is no ground for the exclusion of an admission by a prisoner charged with crime that it was made while he was under arrest, if shown to have been made voluntarily and without influences of promises or threats.</p> <p>10. Same.</p> <p>A' confession is admissible under the provisions of section 395, where there can be no pretense or claim that statements were made while the defendant was under the influence of fear produced by threats, or upon any stipulation by the district attorney that he should not be prosecuted therefor.</p> <p>11. Same.</p> <p>District attorneys and other executive and administrative officers should remember that to be admissible statements made by one charged with or suspected of crime must be voluntary, fairly obtained, and not procured by inquisitorial compulsion or other improper means.</p>

<p>1. Appeal—Retroactive Right of Appeal is beyond Power of Legislature. A right to appeal from a judgment which has passed through all the appellate courts "that have jurisdiction to hear it, cannot be conferred by legislation.</p> <p>S. Statutory Construction — Presumption against Retroaction. In construing a statute, the presumption is that such a retrospective operation as to violate the Constitution by affecting rights already accrued was not intended, unless the words used admit of no other reasonable conclusion.</p> <p>3. Right of Appeal under Act for Protection of Holders Municipal Bonds not Retroactive. The provision of the act for the protection of bona fide holders of negotiable municipal bonds put in circulation through official misfeasance (L. 1895, ch. 792), to the effect that a party, or privy of a party, to any action upon such bonds, or upon coupons thereof, is given a right of appeal to the several appellate courts of the state, including “an appeal to the Court of Appeals, although the amount in controversy may be less than five hundred dollars,” applies to those actions only in which the right of appeal had not been exhausted when the act was passed.</p>

This action was brought to recover damages for an alleged breach of contract for the sale of lumber.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 20, 1896, affirming a judgment entered upon a decision of the court on trial at Circuit without a jury. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The referee erred in refusing to dismiss the third cause of action of the plaintiffs’ complaint. (Grant v. Johnson, 5 N. Y. 247 ; L. 1882, ch. 410, §§ 502, 503, 504.) Assuming that the action was commenced on the 12th of September, 1894, which is the fact, the referee ought to have dismissed the complaint.

. Appeal from a judgment of the supreme court, rendered at a trial term for the county of Ohautauqna, upon a verdict convicting the defendant of the crime of murder in the first degree.

This action was.brought to recover the amount of a policy of life insurance. The facts, so far as material, are stated in the opinion. The answer in this case alleged fraud. (Kley v. Healy, 127 N. Y. 555.) It was not necessary to allege fraud. (Armour v. N. E. Ins. Co., 90 N. Y. 455 ; Philb. on Ins. 537 ; Hutcheson v. Johnson, 33 Barb. 392 ; 2 Johns. Ch. 596 ; 2 Cow. 129 ; Kountze v. Kennedy, 147 N. Y. 124 ; Forster v. Wilshusen, 14 Misc.

<p>1. Fire Insurance — Estoppel and Waiver of Forfeiture. While an insurer, even under the provisions of a standard fire policy, may estop, itself from claiming, or may waive, a forfeiture under its conditions hy its acts and the requirements it makes of the insured after knowledge, still, the circumstances and acts which are required to constitute such an estoppel or waiver seem to be quite firmly established.</p> <p>3. Elements of Estoppel Essential to Implied Waiver. In the absence of an express waiver, at least, some of the elements of an estoppel must exist: the insured must have been misled by some act of the insurer, or it must, after knowledge of the breach, have done something which could only be done by virtue of the policy, or have required something of the insured that he was bound to do only under a valid policy, or have exercised a right which it had only by virtue of such policy.</p> <p>3. Proof of Estoppel or Waiver. Such an estoppel or waiver must be established by the person claiming it by a preponderance of evidence; and neither an estoppel nor a waiver o£ the breach of a condition after-forfeiture, hy reason thereof, can he inferred from mere silence or inaction.</p> <p>4. Breach of Policy by Commencement of Foreclosure—Waiver of Forfeiture not Established by Continuance of Appraisal. ISTeither an estoppel nor a waiver of forfeiture, under a standard .fire-policy containing a provision that it should he void if foreclosure proceedings were commenced against any property covered thereby, is established, where the proof is to the effect that, while the appraisal of a loss under the policy was in progress, the insurer learned that an action for the foreclosure of a mortgage upon the insured premises had been commenced before the loss; that for a month after learning that fact, and until the receipt of the proofs of loss, the insurer remained silent and inactive;, that although the appraisal continued, the insurer did nothing as to its. continuance, and whatever was done therein hy the insured was voluntary; and that on receipt of the proofs of loss the insurer immediately notified the insured that the policy had been forfeited and was void, and thereafter did nothing inconsistent with that claim.</p>

Appeals in each of the actions above entitled from a judg- ■ ment of the late General Term of the Supreme Court in the fifth judicial department, entered ¡November 6,1895, affirming a judgment entered upon the decision of the court after a trial at Special Term. Each of said actions was brought to set aside a local assessment and to restrain the defendant from collecting the same.

The nature of the action and the facts, so far as material, are stated in the opinion. The examination had on the answer relative to the similarity of the handwriting of defendant and the signature on the note was incompetent. (McKay v. Lasher, 42 Hun, 270 ; 50 Hun, 383 ; 121 N. Y. 477 ; Mortimer v. Chambers, 27 Abb. [27. C.] 289.) The note never had any valid existence in law.

The nature of the action and the facts, so far as material, are stated in the opinions. The court erred in holding that the act of 1851 (Ch. 207) was void, because it took or attempted to take lands for a private and not for public use. (Matter of Burns, loo N. Y. 23.) The court erred in holding the Moose river legislation unconstitutional because no provision is made for compensation to riparian owners.

<p>1. Set-off—Judgments Cannot be Mutually Set off, Where Appeal from one of them is Pending. A judgment to be available as a set-off must be a valid, subsisting obligation and final in its nature; and, hence, judgments cannot be set off against each other, where one of them has been appealed from and the appeal is still .pending.</p> <p>3. Setting off Judgments is Matter of Discretion. To have one judgment set off against another is not a matter of absolute right, but is within the equitable discretion of the court to which the application is made; and however the question is presented, such relief should he administered in all cases upon such equitable terms as will promote substantial justice, unless an absolute right is created by some statute, or otherwise firmly established.</p> <p>3. Review of Exercise of Discretion. The Court of Appeals may not review' tlje discretionary action of other courts.</p>

<p>Measure op Damages for use of Stream by Trespassers, for. Floating Logs. The words “ any and all damages and loss whatsoever,” in an undertaking of indemnity, given by sureties for trespassers, in accordance with an order suspending, for a period, as a favor to the trespassers, a judgment restraining them from floating logs upon a stream on the plaintiff’s lands, held to include the tollage, or the reasonable value of the use of the stream for the purpose of floating logs, as so used by the-, trespassers during the suspension of the judgment.</p>

On April 22d, 1897, Grant B. Taylor opened an account with the plaintiff, The Nassau Bank, and among other deposits, made by him that day and credited to his account, was one of a draft for $6,000, drawn by the Columbus Trust Company of Newburgh, N. Y., upon the Chase National Bank of the city of New York, in favor of Charles Currie. Taylor wrote Currie’s name upon the back of the draft and then his own, upon making the deposit.

The nature of the action and the facts, so far as material, are stated in the opinions. The Wabash Western Railway Company contracted to carry the property in question from Chicago to New York. (Burtis v. B. & S. L. R. R. Co., 24 N. Y. 269 ; Condict v. G. T. Ry. Co., 54 N. Y. 500 ; Swift v. P. M. S. S. Co., 106 N. Y. 214 ; Muschamp v. L. & P. J. Ry.

Townley against the Eureka Chemical Company and the executions issued thereon, and which also directed the sheriff of Onondaga county to pay the amount collected by him under such executions to the plaintiff upoh a judgment obtained by it against the corporation. The nature of the action and the facts, so far as material, are stated in the opinion.

• Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 6, 1898, affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial. This action was brought to recover damages for a personal injury alleged to have been caused by the negligence of the defendant. The facts, so far as material, are stated in the opinions.

Appeals from orders of the Appellate Division of the Supreme Court in the first judicial department, entered December 3,1898, affirming the proceedings of the defendant and dismissing writs of certiorari issued to review the same. The facts, so far as material, are stated in the opinion in the Green case. The mayor had no power to remove the relators except for cause after an opportunity to be heard.

The substance of the complaint and the grounds of the demurrer are stated in the opinion. ' The provision for the plaintiff, if a legacy, is specific and not demonstrative. (Redf. on Sur. 605, 606 ; Delaney v. Van Aulen, 84 N. Y. 16 ; Beck v. McGillis, 9 Barb. 35 ; Barber v. Davidson, 73 Ill. App. 441 ; Prendergast v. Walsh, 42 Atl. Rep. 1049 ; Walton v. Walton, 7 Johns. Ch. 263 ; Willard, Eq.