Volume 13 — New York Supplement

Action by James Van Camp, for himself and all other legatees, under the last will and testament of Ann Jennette Van Camp, deceased, against Albert Fowler, as executor, etc., of Oliver H. Perry, deceased, and others, for the construction of the will of Oliver H. Perry, who died at Truxton, Cortland county, N. Y., on the 24th January, 1864, leaving real and personal estate, and leaving a widow, Ann Jennette Perry, and as his sole heir and next of kin a son, Walter T. Perry,…

Action by William Barry against Orson, Coville and another to compel the defendants, Coville & Morris, to reassign to plaintiff certain patents previously assigned to them by plaintiff, and for an accounting; it being alleged that said defendants had received royalties to a large amount, and were also indebted to plaintiff in a large amount for services performed by him in connection with improvements.

Action by James M. Olendorf, as commissioner of highways of the town of Afton, against Julia M. Sullivan and others. From a judgment of the county court entered December 4, 1889, affirming a judgment of a justice’s court in a proceeding to compel the removal of an obstruction in a highway, defendants appeal.

Action by Orville M. Knox against Max Sehoenthal. From'a judgment entered in Madison county on 18th February, 1890, upon the report of a referee in favor of the plaintiff for $188.50, with interest from November 16, 1888, and costs, defendant appeals. The evidence is not returned.

Action by Jennie Y. Bellinger, as administratrix of Betsey D. Bellinger, deceased, against George B. Potter, as executor, etc., of George Potter, deceased, for a legacy of $4,000, given to plaintiff’s intestate, Betsey D. Bellinger, in the will of George Potter, who died April 26, 1869. The will was proved, and letters testamentary issued to the defendant, on May 25, 1869. The executor has never had a judicial accounting except in this action.

Action by Jabez Burner against Otis Seabury. Plaintiff appeals from a judgment entered on a decision made at special term on. the merits dismissing the complaint and dissolving the injunction, which judgment also provided, viz.: “That the plaintiff be, and he is hereby, directed to fill up the excavation made by him at the spring mentioned and described in said decision on the 17th day of April, 1890, and to replace in said spring a box similar to the one taken therefrom by…

Action by the Union Insurance Company of Philadelphia and the Insurance Company of the State of Pennsylvania against the Central Trust Company of New York and the Continental Insurance Company of New York. Defendants appeal from an interlocutory judgment overruling their demurrers to the complaint.

<p>1. Criminal Law—Jurisdiction—Recorder op Osweso. .</p> <p>Relator, who lived in Cayuga county, was charged with the wrongful appropriation of property bailed to him in Oswego county, where it was to be returned to the bailor. Code Crim. Proc. NT. Y. § 134, provides that “when a crime is committed partly in one county and partly in another, or the acts or effects thereof constituting or requisite to the consummation of the ofíense occur in two or more counties, the jurisdiction is in either county. ” Field, that the recorder of the city of Oswego, who has the powers of a justice of the peace, in criminal matters under Laws N. Y. 1849, c. 134, § 2, and Code Crim. Proc. N. Y. §147, had jurisdiction to commit relator to await the action of the grand jury.</p> <p>2. Same—Preliminary Hearing—Sufficiency of Evidence.</p> <p>Where there is some evidence before the committing magistrate that relator is guilty of the crime charged, his determination thereon will not ordinarily be disturbed on habeas corvus.</p>

Action by Martin Fahy against the Rome, Watertown & Ogdensburg Railroad Company. The plaintiff alleges in his complaint that on the 20th August he was in the employ of the defendant as a brakeman; and that while engaged in attempting to set a brake upon a freight-car in one of defendant’s trains near De Kalb station, in the county of St. Lawrence, he was thrown from the car and injured by reason of a defective brake.

■ In May, 1890, the defendant, John H. Sweeney, and David McCord, alias James Bradley, were jointly indicted for the crime of grand larceny in the first degree.

Action by John A. Collins against George K. Collins and others. From an interlocutory judgment entered on June 14, 1890, and from an order denying a motion for a new trial under section 1001, Code Civil Proe., defendants appeal. For prior reports, see 5 if. Y. Supp. 953, and 11 FT. Y. Supp. 941, mem.

Action by Bobert Croasdale against Daniel M. Lanigan. Erom a judgment restraining defendant from taking down or interfering with a retaining wall built by plaintiff between the premises of the parties, defendant appeals.

Action by the Skenandoa Cotton Company against Mary E. Lefferts and others, for balance of account for yarn and merchandise sold and delivered by plaintiff to defendant prior to July 31, 1884. The answer alleged that on the 31st July, 1884, the claim of the plaintiff was fully paid and satisfied. From a judgment entered in Oneida county, June 22, 1889, upon the report of a referee, in favor of plaintiff, for $2,576.18 damages, besides costs, Mary E. Lefferts appeals.

Action by Laura A. Steinhausen against the Preferred Mutual Accident Association of New York on a certificate of membership issued by defendant to Frank J. Steinhausen, July 27, 1886.

Action by Henry W. Allen against George T. Wharton. Defendant appeals from an order denying his motion to set aside the service of the summons.

Action by John B. Huntoon against Marcus Jerkowski. Defendant appeals from an order denying a motion to vacate an order for his examination as a witness before trial.

Action by Briggs Priestley and others against Samuel Adams and another to restrain defendants from advertising, selling, or offering for sale any goods as “Priestley’s” which are not manufactured by the plaintiff. Defendants appeal from an order granting a temporary injunction.

Action by Catherine McIntyre against Patrick Costello and others for dower. James Carroll, Ellen Carroll, and the Germania Savings Bank were made defendants, as claiming some interest in the premises involved, and answered the complaint.

Action by Daniel B. Sicilies, sheriff, etc., balding executions against the insolvent firm of Bosenberg & Baker, against John C. Wilmerding and others, composing the firm of Wilmerding, Morris & Mitchell, to recover certain property or its effects, in the hands of the defendants belonging to said execution debtors. And also action by David A. Sullivan against the same parties, claiming the same property, or its effects, as receiver of said insolvent firm of Bosenberg & Baker.

Action by Herman Stein and Monróe L. Simon, against Julius A. Levy, Charles F. Levy, and James A. Flack, as sheriff, to set aside an alleged void and collusive judgment rendered in favor of the defendant Charles F. Levy against the defendant Julius A. Levy. An injunction was awarded the plaintiffs pendente lite restraining the sheriff from selling the debtor’s effects under an execution issued on the judgment in question.

Action by Henry Moss and David Moss against the Manhattan Bailway Company and the New York Elevated Railway Company to restrain the operation of defendants’ elevated-railroad in front of plaintiffs’ property, and to recover damages for injury by the railroad to said property. Defendants appeal from a judgment for plaintiffs, entered on trial by the court without a jury.

Action by James Galway against the Metropolitan Elevated Railway Company and the Manhattan Railway Company to restrain the operation of defendants’ elevated railroad in front of plaintiff’s property, and to recover damages for injury by the railroad to said property. Defendants appeal from a judgment for plaintiff, entered on trial by the court without a jury.

This is an appeal from an order made by Mr. Justice Andrews, dated the 4th day of April, 1890, granting the prayer of the petitioners, Alfred Roe and others, to be permitted to submit and present to the commissioners of estimate and assessment their objections herein, and to prove, in support of the same, “ that the land required for the said street between Kingsbridge road and Tenth avenue had been dedicated to public use, and to present testimony in support thereof, and…

Exceptions from trial term. • Action by Elijah Meyers and J. Harby Moses against Benjamin F. Trescott for breach of a contract for sale of merchandise. A verdict for plaintiffs was directed by the court, and defendant’s exceptions were ordered to be beard in the first instance at general term.

Action by Washington H. Taylor against Catherine Taylor. Plaintiff appeals from a judgment for defendant entered on trial by the court without a jury.

Action by Laura F. Bradhurst against Augusta O. Field and others, to construe the will of Thomas O. P. Bradhurst, of which defendants are the executors. The contention of the plaintiff was that a devise of the sum of $10,-000 to her, in lieu of dower, was intended by the testator as a devise of that sum annually, and not in gross. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. For former report, see 10 H. Y. Supp. 452.

Action by Edward Dart against Herman 0. Kudlich, for malicious prosecution of plaintiff for making a falser entry in the books of the Exchange Bath Company, of which he was president and treasurer, with intent to defraud, and appropriating to his own use the sum of money so entered.

Proceedings supplementary to execution upon a judgment recovered by Catharine L. Smith against Hugh McQuade. The judgment debtor appeals from an order directing him to deliver certain property to a receiver.

Action by Albert Kelley and another against Daniel J. Sprague and others. There was a judgment in favor of the defendants, and the plaintiffs appeal. The case is fully stated in the opinion of the referee, which the court adopts without change. The opinion of the referee was as follows: “Yale was a creditor of Sprague to the amount of $5,200 upon a promissory note not due. Sprague was the lessee of the Bartholdi Hotel; which he conducted.

Certiorari at the relation of the Union Trust Company against Michael Coleman and others, commissioners of taxes and assessments, to review an assessment of its capital stock. There was a judgment dismissing the writ of certiorari, and the relator appeals.

Action by Albert Scott against the Central Park, Horth & East River Railway Company, to recover damages for an assault on plaintiff by one of defendant’s drivers. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial. For report of decision on former appeal, see 6 H. Y. Supp. 382.

Action by Lisette Spliess against Bertha Meyer and others, for partition. The defendant Bertha Meyer appeals from an interlocutory judgment overruling her demurrer to the complaint. Code Civil Proc.

<p>1. Foreclosure of Mortgage—Notice—Parties in Possession.</p> <p>'At the time of foreclosing a mortgage, the person appearing by the record to be the owner of the property had conveyed it, and the grantee had again conveyed, and she and her grantee had joined in a lease of a building on the premises to a tenant, who went into possession before the complaint or notice of pendency of the action was filed in the foreclosure suit. Neither of the grantees nor the tenant was made a party to the action. Held, that Code Civil Proc. N. Y. § 1671, providing that a person whose conveyance or incumbrance is recorded after the filing of notice of pendency of such an action shall be bound by all the proceedings thereafter taken in it, to the same extent as if he was a party, did not apply to a purchaser or incumbrancer in possession.</p> <p>2. Same—Notice to Mortgagee.</p> <p>The possession of the tenant was notice to plaintiff of the title of the lessor and of the tenant.</p> <p>3. Same—Delivery of Possession—Removal of Tenant.</p> <p>The tenant could not be removed, and possession given to the purchaser at the sale in foreclosure, by any proceeding in the action.</p> <p>4. Same—Rights of Purchaser.</p> <p>Such purchaser was entitled to be relieved from his bid.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by William H. Townsend against Robert Allen, Jr., executor of William McCoon, deceased, and James H. McCoon, and others, to obtain a settlement of the accounts of plaintiff as trustee under a deed of settlement, and the direction of the court as to the distribution of the trust-estate. The principal controversy in the suit was as to the validity of a deed of settlement executed by William McCoon in his life-time. There was a judgment in favor of plaintiff and certain of the impleaded defendants claiming under the deed of settlement, from which the defendant Robert Allen, Jr., executor, claiming under a will of the said William McCoon, executed after the deed of settlement, appeals. On the trial, the following opinion was rendered by the referee:</p> <p>“In April, 1863, William McCoon, being a resident of the state of New Jersey, executed and delivered a certain trust-deed to three persons, viz., his brother, Cornelius McCoon, Benjamin B. Sherman, and William H. Townsend, who is the plaintiff in this action. All three of the trustees above named were, at the date of such trust-deed, residents of the state of New York. That instrument set forth that said William McCoon was, on the day it bears date, the owner of a large amount of personal property, consisting of certain specified stocks and bonds, and that, as it would be irksome and inconvenient for him to have the care and management of such property, he had resolved to transfer, assign, and set over the same to the trustees in such instrument named. And accordingly, by such trust-deed, the settlor assigned such property to his trustees, to have and to hold the same to and for the objects, intents, and purposes following, that is to say: To manage the fund to the best advantage according to their judgment and discretion, to collect all dividends, interest, and income arising therefrom, and, after supplying the settlor out of such income, if such income should be sufficient, with whatever money might be required by him for his maintenance and support, to invest the surplus in such securities as in their judgment might seem proper, to keep such securities, or, in their discretion, to sell the same, and, after sale, to reinvest the proceeds. Bor the purpose of carrying out the provisions of the foregoing instrument the grantor appointed his said trustees, and the survivor or survivors of them, his true and lawful attorneys in fact, to do all such acts as might be necessary in the premises. The deed further provided that the assignment of the property which it conveyed, and the power which it conferred, were made and granted on the express condition that said trustees would at all times, during the natural life of the grantor, well and faithfully manage the trust-fund to the best of their ability, and would, during the natural life of the grantor, furnish and pay over to him out of the income of the said property, from time to time, such sums of money as might be needed for his reasonable support and maintenance, and would, if the income should not be sufficient for that purpose, make up and supply the deficiency out of the capital of the property assigned, and would, upon his death, transfer all of the fund that should remain in their hands to and among such persons as would be entitled to the same as next of kin of the grantor, ‘ according to the directions of the statute of distributions of the state of New York.’</p> <p>“The property whose disposition was ordered by the instrument above described had been inherited by William McCoon from his father and his mother. Brom the time of their death it had been in the hands of his brother Cornelius, one of the persons named as trustee in the above-described deed. He had managed the same and paid over the income, as desired, to his brother William. After the execution of the deed Cornelius continued to manage the property for some two years. Then, on account of his ill health, he transferred the same to this plaintiff. The plaintiff continued to collect the income and to apply the same to the use of William McCoon until the latter’s death, on December 27, 1877. It appears in evidence that William continued to reside in the state of New Jersey from the time he executed the trust agreement until he died. He left an instrument purporting to be his last will and testament, which has since been admitted to probate as such in the proper court of the state of New Jersey. By that will he gave to Bachel Trafford, wife of John Trafford, ‘the sum of five thousand dollars out of the moneys or property I heired or am entitled to out of or from the estates of my deceased sisters, Amelia McCoon and Phoebe McCoon;’ and to his nephews, Edwin S. Townsend and Prank W. Townsend, ‘ five thousand dollars apiece out of the moneys or property I heired or am entitled to, or may be entitled to, out of or from the estates of my said deceased sisters;’ and to Margaret T. Trafford five hundred dollars • out of the moneys or property I heired or am entitled to, or may be entitled to, out of or from the estates of my said deceased sisters.’ All the residue of his property he gave by his will to Edwin S. Townsend, Prank W. Townsend, and Bachel. Trafford, to be divided between them share and share alike.</p> <p>“At the time of his death the persons who constituted, according to the statute of distributions of the state of New York, his next of kin were: (1) Mary A. McCoon, his sister; (2) Annie A. Waterbury, Caroline A. Gunther, and James H. McCoon, children of his deceased brother, Cornelius; (3) Edwin S. Townsend and Frank W. Townsend, two of the residuary legatees under the will aforesaid, children of his deceased sister who was the wife of the plaintiff in this action. Upon this state of facts rival contentions have arisen. On the one side it is claimed that, under the-provisions of the trust-deed, the fund here in question should be distributed among William McCoon’s next of kin. In opposition it is insisted: First, that the trust agreement itself is invalid and inoperative, and that, accordingly, all the property of which it undertakes to dispose must be distributed according to the directions of the settlor’s will; and, second, that even though the agreement is not invalid in toto, so much of the fund here accounted for as represents accumulations of income must be held to have been suffered to accumulate pursuant to an unlawful direction of the settlor of the trust, and must be distributed, therefore, as part of his residuary estate, in accordance with the directions of his will.</p> <p>“It appears that the property transferred by the deed of 1863 consisted entirely of personalty. In view of that fact, and of the further facts that, at the time of the execution of such deed, William McCoon was a resident of the state of New Jersey, and continued to be a resident of that state uninterruptedly until his death, I hold that the validity and effect of the disputed instrument must be determined in accordance with New Jersey laws. The circumstances that Cornelius McCoon had in his hands, at the time the trust-deed was executed, the property to which it relates, and had, for a considerable period theretofore, managed and controlled the same for the use and benefit of his brother William, and the other circumstances which are referred to in the brief of counsel for one of William’s executors, as supporting his claim that the evidence establishes such relation between the settlor and his brother as to create a presumption, not rebutted and overthrown by opposing evidence, that the transfer to Cornelius was fraudulent and void, are not, in my judgment, sufficient to warrant the findings in that regard for which such counsel contends. There is no evidence tending to show that the making and execution of the trust agreement were induced by any influence exerted by Cornelius. Any benefit that Cornelius could have derived from the agreement was contingent upon his surviving his brother, and, even in that event, he would have taken under the trust agreement no more than the statute of distributions would have awarded to him in case his brother had died intestate. William MeCoon continued to recognize the validity and effectiveness of the trust-deed for more than 20 years after Cornelius gave up the control and management of the fund, and the language which he used in his will, executed about 4 years after that control and management had been surrendered, strongly tends to show that he then considered that the property which he had derived from his father and his mother was no longer subject to his disposition. If the construction of the trust-deed were dependent upon the laws of New York, it may be that its direction regarding the disposition of surplus income would be invalid as directing an unlawful accumulation; but, as such direction is not prohibited by the laws of New Jersey, I hold that the income accumulated must follow the principal fund, and be distributed by the trustee to William MeCoon’s next of kin, as determined by the New York statute of distributions. ”</p>

Action by Alfred C. Barnes and others against Frederick D. Blake and others for partition. Defendant Frederick D. Blake appeals from an interlocutory judgment overruling his demurrer to the complaint.

Action by George Munroe against Frank Tousey, to restrain the defendant from using the nom deplume “Sleuth” in the publication of certain works of fiction. There was a judgment for plaintiff, and defendant appeals.

' Action by George Munroe against Frank Tousey. The questions involved and judgment rendered in this case are the same as those in the one immediately preceding between the same parties.

<p>Arrest in Civil Cases—Affidavit.</p> <p>The affidavit on which an order of arrest was granted alleged fraudulent representations by defendant that an association had been duly incorporated, whereby plaintiff was" induced to expend money, time, and labor in aid of its organization, and in the conduct of its business, when, in fact, the secretary of state had refused to file the certificate of incorporation; but it appeared that the action was brought to recover for moneys expended before, as well as after, the time of the alleged incorporation. Held that, as defendant was not liable to arrest in respect of money expended before any fraudulent representation by him was alleged, the order of arrest must be vacated.</p>

Petition by Jacob Lorillard and others, com missioners of the Harlem bridge, for and on behalf of the mayor, etc., of the city of New York, to acquire certain lands for the purposes of said city, under chapter 249 of the Laws of 1890.„ The application by the petitioners for the appointment of commissioners was: resisted by the city. An order was made appointing them in accordance with, the prayer of the petitioners, and from.that order the city appeals.

Motion by Filippo di Carlo to vacate an award made by arbitrators in pursuance of a submission, inter partes, of certain matters in controversy between the said Filippo di Carlo and the Williamsburgh City Fire Insurance Company. The motion was denied, and the said Filippo di Carlo appeals.

Action by Henry Gray, as receiver of the North River Sugar Refining Company, against the Oxnard Brothers Company and others. Plaintiff appeals from an interlocutory judgment sustaining a demurrer to the complaint.

Action of ejectment by Ambrose Thompson, Emily Chase, Julia Gecldings, and Charles Ambrose Aldis, an infant, by his guardian ad litem, against John B. Simpson and Albert C. Angelí. Plaintiffs appeal from a judgment for defendants entered upon a verdict directed by the court, and from an order denying a motion for a new trial.

Action by Walter K. Freeman against the United States Electric Lighting Company. Upon a trial before a jury, at the close of the plaintiff’s case, the court dismissed the complaint.

Action by William R. Peters and George Parker against Winfield S. Chamberlain and Nelson J. Botsford. Upon atrial before a jury, at the close of the plaintiff’s case the court dismissed the complaint; the clerk entering up júdgment in the following form: “Adjudged that the defendant have judgment against the plaintiff upon the issues in this action, dismissing the complaint upon the merits. ” The complaint was not in fact dismissed upon the merits.

Action by John Parker and Robert Graham, executors of James Linden, deceased, against Maria Linden and others, to construe the will of James Linden. It was found as a fact that Jane Smith, one of the devisees in said will named, had gone to New Zealand, and had not been heard from in upwards of 50 years, and, as a conclusion of law, that she had died, without issue and intestate, before the testator.

Action by Abdel Wahed El Tazi against Abraham Stein and Samuel T. Preston. Defendant Stein appeals from an order denying his motion to vacate an order previously made for his examination before trial, upon the ground that the sole object of such order was to obtain the production and examination of defendants’ books of account. Code Civil Proc. If.

Action-by Samuel E. Huntington, executor of Chauncey E. Low, deceased, against Cornelia S. Moore and others to foreclose a mortgage. - There was a decree of foreclosure and sale, and the plaintiff moved for an extra allowance of 5 per cent, in the taxation of costs, but this was denied, upon the ground that the mortgaged property was “real estate,” and that the court had no power to make a greater allowance than $200. Code Civil Proc.

Action by Nathaniel Sleeman against Lewis Hotchkiss and others. Plaintiff appeals from an order denying an application for leave to serve an amended complaint.

Action by Louis Dubois against William H. M. Sistare and another, for conversion of certain stocks. Defendant Sistare appeals from an order striking out his amended answer as frivolous, and for judgment thereon for plaintiff.

Petition by John A. Holmes for leave to issue execution on a judgment recovered against James Boyle, deceased, in his life-time. Petitioner appeals from an order denying his application. Code Civil Proc.

New York- county. Habeas corpus and certiorari, on the relaticm of Michael J. O’Connor, to obtain his discharge from a commitment for contempt. The relator appeals from an order dismissing the writs.

Action by Frank Ross, as ancillary administrator of James C. Ross, deceased, against MathanielP. Hamlin, Wallace P. Willett, and-others. Plaintiff appeals from an order granting a motion by defendant Hamlin that the complaint be made more definite and certain.

<p>Appeal from special term, Mew York county.</p> <p>Action by Hugh M. .Camp against Michael Redmond. Defendant appeals from an interlocutory judgment sustaining a demurrer to a counter-claim in his answer.</p>

Action by Lewis H. Livingston against the New York Life Insurance & Trust Company and John McL. Hash, as executor of James B'. Livingston, deceased, and others. .Defendant.the New York Life Insurance & Trust Company appeals from a judgment for plaintiff entered on trial by the court without a jury.

<p>Appeal from Ulster county court.</p> <p>Action by Oliver B. Whitney against Lawrence E. Wardell. There was judgment for plaintiff, and defendant appeals.</p>

<p>Husband and Wife—Separate Property—Rights of Creditors.</p> <p>Plaintiff lent her husband, at various times, money, which he used with his own in buying and trading horses on his own account. Plaintiff testified that, when the last team was bought, her husband told her it was to be hers, but retained it in his possession. Meld, that that was not sufficient, as against the husband’s creditors, to establish that he was her agent in these transactions, and that she was the owner of the team.</p>

Action by Oscar P. Kemp and John Kemp against Alexander D. Peck, as survivor of an alleged copartnership of Alexander D. Peek and George A. Peck, George A. having died.

Indictment against Henry L. Gregg, mayor of the city of Hudson.

Indictment against Thomas E. Hannon, an alderman of the city of Hudson, for engaging in the manufacture and sale of spirituous and malt liquors, etc., while holding the office of alderman. Defendant’s demurrer to the indictment was overruled, and judgment of conviction rendered against him. From the order overruling demurrer, and the judgment, defendant appeals. Laws FT.

Action by Milton F. Adams against the Lamson Consolidated Store-Service Company. Defendant appeals from an interlocutory judgment overruling a demurrer to the complaint. Code Civil Proc. FT. Y. § 1775. provides: “In an action brought by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation,” etc.

Certiorari on the relation of John J. Finigan to review a decision of the fire commissioners of the city of New York dismissing him from the office of fireman.

Action by William V. Oothout and others against Mary Rogers and Benjamin Roger's, to recover the possession of real estate. There was judgment for plaintiffs, and the defendants appeal.

Action by the Hong Kong & Shanghai Banking Corporation against Thomas H. Campbell and others. Under a warrant of attachment against the property of defendants, the sheriff applied to William B. Cooper, Jr., for , a certificate of the property, debts, and demands belonging to the defendants in the hands of said Cooper, who thereupon gave a certificate that he had no such property, and was not indebted to them in any sum whatever.

Action by Beulah Bouse, an infant, by guardian, against the Catskill & New York Steam-Boat Company to recover damages for the death of plaintiff’s father, alleged to have been caused by intoxication from liquors purchased in a bar-room on board of one of the defendant’s steam-boats.

Action by Abram M. Boos against Isaac Lockwood for specific performance of a contract to convey real property. Defendant appeals from a judgment for plaintiff entered on trial by the court without a jury.

Action by Charlotte Wolz, as administratrix of Charles Wolz, deceased, against the Dry-Dock, East Broadway & Battery Bailroad Company. Plaintiff appeals from an order striking out part of the complaint.

Action by Mortimer'Trumble against John M. Peck. Defendant appeals frond a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Joseph Barbean against Kelson Picotte. Defendant appeals from a judgment for plaintiff, on trial by a referee.

, . Petition by Walter J. Eaton, assignee for i)he benefit of the creditors of James Moir, for instructions as to the distribution of the fund in his hands., The assignment directed that the fund be applied, to the payment of certain, debts set out in five separate clauses.

Petition of the trustees of the Congregational Church & Society of Cutchogue to compel George W. Dayton, administrator with the will annexed of Henry Landon, deceased, to pay a legacy to said church and society. The administrator appeals from a decree directing such payment. Code Civil Proc.

<p>1. Corporations—Actions—Venue.</p> <p>The place of residence of a corporation, within the meaning of Code Civil Proc. N. T. § 984, providing that an action must be tried in the county in which one of the parties resided at the commencement thereof, is where its principal business is to be carried on, as designated by its charter, though in fact it may conduct a large part of its business, and have an office, in another county.</p> <p>2. Change op Venue.</p> <p>Where such corporation sues in a county other than that designated by its charter as its principal place of business, the court not having jurisdiction otherwise, the defendant is entitled to an order changing the place of trial, under Code Civil Proc. § 985, providing for such change upon the demand of the defendant, followed by the consent of the plaintiff or the order of the court.</p>

Action by Albert T. Brown against Sarah Teel, Mary A. Hunn, and others, to compel the defendants to litigate their claims to certain real estate in the possession of the plaintiff.

Action by Eva M. Loop against James M. Northup and John I. Seeley, sureties on the official bond of Almond S. Kilburn as administrator of Lydia M. Kilburn, deceased, to recover the penalty of said bond. The action was predicated upon a decree rendered against the administrator in a proceeding by petition to compel a settlement of his fiduciary accounts in the surrogate’s court.

Action by John G. Greene and Abram G. Yeeder against Anthony Walton and others, directors of the Hational Stock Owners’ Mutual Benefit & Indemnity Society, to recover the amount of an insurance certificate or policy, issued to plaintiffs by that society, insuring them against loss, by death, of a horse belonging to them.

Lawrence county. Action by Milton Keecb against the Borne, Ogdensburg & Watertown Railroad Company to recover damages alleged to have been sustained by plaintiff through defendant’s negligence. On September 14, 1886, the plaintiff was riding in a buggy drawn by one horse, on the highway and approaching the grade crossing over the defendant’s railroad just north of the station at De ICalb Junction.

Action by John Hooper, administrator of Theresa Hooper, deceased, against the Johnstown, Gloversville & Kingsboro Horse-Railroad Company, to recover damages for negligently causing the death of plaintiff’s intestate. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Henry A. Taylor and others, administrators of Christopher Meyer, deceased, against Thomas S. Blair and Thomas Struthers. Defendants appeal from a judgment for plaintiffs, entered on a verdict directed by the court.

Action in the name of Theresa Wells, treasurer of Excelsior Assembly No. 4,120 of the Knights of Labor, said -assembly being an unincorporated association consisting of more than seven persons, against Edward Monihan and John Stack.

The special proceeding was commenced on September 20, 1889, by service on Tobias Oberfelder, the respondent, of the petition and notice of application for the appointment of commissioners.

Defendant, Edward L. Bice, was indicted for grand larceny in the first degree. His demurrer to the indictment was sustained, and the people appeal.

Action by James M. Vanderzee against Bertha J. Herman and John L. Herman to foreclose a mechanic’s lien. From the judgment entered in favor of the defendants on the referee’s report the plaintiff appeals.

Action by Levi J. Duel against Byron- H. Sykes and Michael J. Hayes, to recover the price of a calf, which defendants agreed to purchase of plaintiff at a certain price. Defendants appeal from a j udgment of the county court affirming a judgment of a justice of the peace in favor of plaintiff.

Action by Solomon Strasser against John L, Staats, as Noble Grand or President of Mount Herman Lodge No. 38,1. O. O. F., of the state of New York. The plaintiff is the assignee of the next of kin of Moses Strasser, deceased, who in his life-time was for many years a member of defendant’s lodge, and on whose death the plaintiff, as the assignee of the deceased, next of kin, claimed a funeral benefit. The defendant is an unincorporated association of more than seven members.

Action by John S. Maxwell against John R. Lowther and Sarah E. Lowther. The plaintiff recovered a judgment, November 21, 1885, against John 11. Lowther for $1,496. Execution issued thereon was returned unsatisfied. The plaintiff then brought this action against John R. Lowther and Sarah E., his wife, under section 1871, Code Civil Proc., to compel the discovery of money due from Mrs. Lowther to her husband, and the application thereof to the satisfaction of said judgment.

Action by David H. Harvey and Charles G-. Eddy against Edward M. Walker and Charles F. Walker, on there separate causes of action, for goods sold and delivered to defendants. These causes of action are separately set forth in three separate paragraphs, numbered first, second, and third.

Action by Julia. A. Klock against Fannie Brennan and John H. Brennan, executors of George B. Bixby, deceased.

Action by James A. Fox against the village of Lansingburgh for alleged negligence of the defendant in allowing a pile of flag-stone to be placed upon the sidewalk, over which the plaintiff, while passing along the walk in a dark night, fell and was injured.

Action by Emily Hemmens, formerly Emily Halstead, against Edward B. Uelson. The action was commenced in May, 1878, and has been tried at the circuit five times, and has been before this court on three former occasions. See 24 Hun, 395; 36 Hun, 149; 13 FT. Y. St. Rep. 211.

Action by John W. Haywood, as administrator of Arthur M. Haywood, deceased, against the New York Central & Hudson River Railroad Company. The action was prosecuted for alleged negligence of the defendant in the management of its railroad, by reason of which plaintiff alleges that his intestate was struck by defendant’s cars while crossing the defendant’s railroad track on one of the streets in the city of Schenectady.

Mandamus by the people of the state of New York against Theodore W. Myers, as comptroller of the city of New York, to compel him to draw and sign his warrant upon the chamberlain of the city of New York, directing him to pay the amount of certain taxes alleged to be due to the treasurer of the state of Yew York. Defendant appeals from a judgment for plaintiffs on the report of a referee, granting a peremptory writ. For former report, si e 3 Y. Y. Supp. 365.

Replevin by Harlow S. Austin, against George W. Wauful, James Casler, and Sylvester Waterman, to recover the possession of certain personal property levied upon by the defendant Waterman as deputy-sheriff, under an execution issued upon a judgment in favor of the defendant Wauful against the plaintiff. The action was based on the ground that the property levied upon was exempt from levy and sale on execution.

<p>1. Militia—Disbandment of Companies—Constitutional Law.</p> <p>The provision of the Military Code of New York, that the commander in chief shall have power, inter alla, to disband companies of the national guard whenever, in his judgment, the efficiency of the state force will be thereby increased, is not in conflict with Const. N. Y. art. 11, § 5, prescribing the manner in which commis- ' sioned officers shall be removed;</p> <p>3. Same—Powers of Congress.</p> <p>Nor is it in conflict with Const. IT. S. art. 1, § 8, empowering congress to call forth the militia and provide for their government while in the service of the United States, for Rev. St. U. S. § 1630, provides that the “militia of each state shall be arranged into divisions * * * and companies, as the legislature of the state may direct. ”</p> <p>3. Same—Discharge of Commissioned Officers.</p> <p>One who received his commission when Military Code N. Y. §§ 7, 44, (Laws 1883, c. 399,) were in force, providing for disbanding organizations of the milita, and rendering their officers supernumerary, is chargeable with knowledge of those provisions, and cannot complain of the subsequent disbandment of his company.</p> <p>4. Same—Notice and Hearing.</p> <p>Military Code N. Y. § 49, providing that commissioned officers of the militia shall not be discharged except after notice and hearing, does not apply where the discharge results from the disbandment of a company by the commander in chief.</p> <p>5. Certiorari—To Governor as Commander in Chief.</p> <p>The writ of certiorari will not be granted by a single judge sitting at special term to review the action of the governor, as commander in chief, in disbanding a company of the militia under the provisions of the New York Military Code</p>

Motion by James A. Byrne for an injunction to stay proceedings on a judgment obtained against him by Maria Mulock, on the ground of his discharge in bankruptcy. The judgment creditor opposed the motion on the ground that the debt for which the judgment was recovered was created by the defalcation of the defendant in a fiduciary capacity.

<p>Arbitration— Setting Aside Award.</p> <p>The facts that an arbitrator, under a statutory submission, was a cousin to one of the parties, (being also a cousin to the other;) was a guest at his house during the hearing of the controversy, though nominated by the other party; and the omission of the arbitrator to have one of the parties sworn to the accounts presented by him, no request therefor having been made by the other,—are not sufficient, in the absence of evidence of undue partiality or fraud on the part of the arbitrator, to warrant vacating his award.</p>

Action by Edgar T. Brackett, administrator of Samuel Bonnell, deceased, against Chester Griswold and others, trustees of an insolvent corporation, alleging a conspiracy between the defendant and said trustees to defraud the public and the plaintiff, and seeking to recover from the defendant the amount of certain notes of said company which plaintiff alleged lie had been induced to take .through such representations.

Case submitted on agreed statement. This was a controversy between Maurice E. Viele, vendor, and William H. Keeler, vendee, involving the validity of the title of the former to certain real estate.

Action by John Morehead and another, overseers of the poor of the town of Marlborough, against Charles Brown, to recover penalties for violations of the excise law (Laws 1ST. Y. 1857, c. 628, § 14) by the sale of hard cider without a license. At the trial in the justice’s court, evidence was admitted, against defendant’s objection, of a fight between the purchaser of the cider and a third person, shortly after the purchase.

<p>Appeal from special term, Clinton county.</p> <p>Action by Thomas E. Bagnall, Jr., against Henry E. Barnard. Plaintiff appeals from a judgment for defendant entered on the dismissal of the complaint at the trial.</p>

Action by Elizabeth Langlois against Frederick F. Hayward, to recover damages for an alleged assault and battery committed by the defendant upon the plaintiff. Plaintiff appeals from an order setting aside a verdict in her favor, and awarding a new trial. The only evidence in support of the verdict bearing upon the question of the assault was the testimony of the plaintiff.

Action by Calvin Tyler against James B. O’Reilly to recover the value of a quantity of lumber sold by defendant as agent for plaintiff. Plaintiff appeals from a judgment for defendant entered on the dismissal of the complaint at the trial.

Action by the National Exchange Bank of Albany against John McEarlan and John Carmichael. Plaintiff appeals from an order directing a separate trial between itself and each defendant.

Petition by George Christie and John Christie for the appointment of a trustee-under the will of Oliver Butterfield, deceased, in the place of a deceased trustee. Petitioners were creditors of George Christie, deceased, and the object of their application for the appointment of a trustee was to obtain the execution of a power of sale, conferred upon the executrix in the will of said decedent, to provide funds for the payment of his debts.

Action by Maria L. Kendall against Sarah E. Mellen and others. Certain infant defendants appeal from an interlocutory judgment overruling their demurrer to the complaint.

Action by Mary E. Barley, executrix, and Zachariah Palen, executor, of Jacob Barley, against Luke I. Roosa. Defendant appeals from a judgment for plaintiffs entered on trial by the court without a jury. Code Civil Proc.

Action by Nathaniel Hooper and others against Charles McCullough Béecher and others. Plaintiffs appeal from the order denying a motion for postponement of the trial.

Action by Sabrina Kaveny against the city of Troy to recover damages for personal injuries from a fall on defendant’s sidewalk. Plaintiff appeals from a judgment for defendant entered on a dismissal of the complaint at the trial. For former reports, see 15 1ST. E. Rep. 726, and 5 1ST. Y. Supp. 950.

Appeals from special term, Ulster county. Two appeals,—in the first case, from an order of injunction granted by the special term forbidding the defendant Carter from taking his seat as a member of the common council of the city of Kingston, and forbidding the common council from taking any action for that purpose or recognizing him; in the second case, from an order awarding a writ of peremptory mandamus commanding the common council to declare the plaintiff and relator,…

Petition of John Murphy for a mandamus against James Howell and others, trustees of the Brooklyn bridge, requiring them to reinstate petitioner as conductor on said bridge, or show cause against the same. Defendants appeal from an order requiring them to serve a bill of particulars of misconduct alleged.

<p>Injunction—Improvements Made by Tenants—Rights of Landlord.</p> <p>Laws N. Y. 1885, c. 342, § 1, provides that a mechanic shall have a lien only on the “interest in land” of the party for whom work is done, “whether owner in fee, or of a less estate, or whether lessee for a term of years, ” etc. Plaintiff fitted certain buildings of defendant, in the possession of leasehold tenants, with steam boilers and piping,, and then claimed a lien, under the statute, on the tenant’s estate in the premises. The tenants abandoned and surrendered their lease, and the defendant entered. Held, that an injunction should not be granted to restrain the defendant owner of the fee from using the said boilers and pipes, because, if fixtures, they were not covered by the lien, and, if part of the realty, they were rightfully in his possession as landlord.</p>

This is an appeal from the decree of the surrogate of Sullivan county, refusing to admit to probate an instrument in writing, purporting to be the last will and testament of Robert Stewart, late of SuJlivan county, deceased. The will was presented to the surrogate for probate upon the petition of the executrix and sole legatee named therein, who was the widow of the testator.

Action by Isaac Hough against Theodore Y. Folmsbee to recover certain specific chattels. Defendant appeals from an order denying a motion to vacate an order for his arrest.

Exceptions from circuit court, Sullivan county. Action by Charles A. Smith against John Botens and Frederick Botens. At the trial the complaint was dismissed, and plaintiff’s exceptions were ordered to be heard in the first instance at the general term.

Action by Matthew Marshall against Daniel H. Link. Defendant appeals from an order refusing to vacate an order for his second examination in supplementary proceedings in aid of an execution.

Certiorari on the relation of Patrick Bohan to Charles P. MacLean and others, police commissioners of the city of New York, to review a judgment of said board dismissing the relator from the police force on a charge of intoxication.

Exceptions ordered to be heard at general term. Action by John E. Ferdinand against the mayor, aldermen, and commonalty of the city of 27ew York. At the trial the complaint was dismissed, and plaintiff’s exceptions were ordered to be heard in the first instance at general term.

. Action by Myer Bosenstook and Myer Bdelmuth against John Hoggarty for the price of goods sold and delivered.

<p>1. Party-Walls—Construction.</p> <p>An agreement between two adjoining lot-owners, by which one undertakes to build a party-wall, for which he is to receive a certain compensation from the other whenever that other shall use the wall, is not performed by the erection by him of a wall equally on the land of each, but in which he leaves recesses for flues on his side extending two inches beyond the center of the wall into that part of it belonging to the other.</p> <p>2. Same—What Constitutes.</p> <p>In the absence of a special agreement' or controlling custom to the contrary, it is an essential characteristic of a party-wall that it should be capable of substantially similar use by each of the adjoining owners.</p> <p>Ingraham, J., dissenting.</p>

Action by Howard A. Bailey against John Glaflin and others, composing the firm of H. B. Glaflin & Co., to recover the possession of certain goods and chattels purchased from the plaintiff by the firm of Simon Epstein & Son under false representations, and transferred to the defendants upon a fictitious consideration. Defendants appeal from a judgment for plaintiff entered on trial by a referee.

Action by Charles Putzel, receiver in supplementary proceedings, against Richard L. Shulhof and others, to set aside alleged fraudulent transfers of personal property which had been destroyed by fire before the commencement of the suit, and to recover money judgments against the transferrers and transferees to the extent of the amount of the judgments of creditors of the fraudulent transferrer represented by the plaintiff as receiver.

Action by Sarah A. Carson against Simon Dessau and David Dessau for conspiracy. There was a verdict and judgment for plaintiff, and defendants appeal.

Action by Israel J. Merritt against the American Dock & Trust Company to recover for work and services rendered in endeavoring to extinguish a fire in defendant’s warehouse. Defendant appeals from a judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Mary Lynch against the Third-Avenue Railroad Company to recover damages for injuries alleged to have been sustained through the negligence of the defendant’s servants. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by John Beining and others against the New York, Lackawanna & Western Bail way Company for damages. Verdict and judgment for plaintiffs. Defendant appeals. For former report see 7 H. Y. Supp. 516.

<p>Appeal from trial term.</p> <p>Action by Bomanna Jeaume and another against the New York, Lackawanna & Western Bailway Company. There was a judgment for plaintiffs, and defendant appeals.</p>

<p>Accounting by the executors of the will of Gerardus A. C. Van Beuren.</p>

Action by Lewis S. Chase against Jacques Senn. Plaintiff appeals from a judgment of the general term of the city court affirming a judgment for defendant entered on the verdict of a jury, and from an order affirming an order denying a motion for a new trial.

Action by Eli M. Goodman against Hugh J. Grant, as sheriff of the city and county of New York, and Helene Figge, August Goetz, and Anna Duch, who, with said Helene Figge, were indemnitors of the sheriff in respect of the levy of execution for which the action was brought, were substituted as defendants in his place. At the trial, the jury found a verdict for plaintiff.

Action by the Davidson Steam Pump Company against the Peerless Manufacturing Company, for breach of warranty on sale of goods. Defendant appeals from a judgment of the general term of the city court affirming a judgment of that court entered on the verdict of a jury, and affirming an order denying a motion for a new trial.

Action by John Claflin and others against James A. Elack, sheriff of the city and county of New York. Defendant appeals from a judgment of the general term of the city court affirming a judgment for plaintiffs entered on the verdict of a jury, and affirming an order denying a motion for a new trial.

Action by John H. Wyckoff and Frank R. Wyckoff against Egbert R. Middlebrook and Lemuel H. Wilson. Defendant Wilson alone answered the complaint, and he appeals from a judgment of the general term of the city court affirming a judgment of that court for plaintiffs, and affirming an order denying a motion for a new trial. For former report, see 9 H. Y. Supp. 628. Argued before Allen, P. J., and Bischoff and Pryor, JJ.

Appeals from city court, general term. Action by Howard A. Sperry against Theodore Hillman and Emil Carlebach. At the trial, plaintiff recovered a judgment in the sum of $353.07 damages and $123.80 costs.

Action by Jacob Reiser against Ernest E. Plath, as administrator of Charles A. Plath, deceased. Defendant appeals from an order referring the action to a referee to hear and determine the same.

Action by John M. Griggs and Isaac Griggs against Leonard W. Johnson and John G. Smith. Defendant Smith alone answered the complaint. Judgment for plaintiffs, and defendant appeals.

Action by Charles B. Bidwell and James M. French against John B. Over-ton. for refusal to accept and pay for goods pursuant to a contract of purchase.

<p>Appeal from city court, general term.</p> <p>Action by Edward P. Yale and others against Henry G. Dart and another, on a bill of exchange, of which plaintiffs were payees, accepted by defendants. The defense was that the acceptance was for the accommodation of the payees, or else for the accommodation of one G. A. Smith, to whom it was given for a special purpose, and by whom it was diverted and fraudulently negotiated to plaintiffs, who were not holders for value, and who, besides, on the maturity of the bill and in payment of it, received from said Smith the acceptance of the Monto Milling Company. Defendants appeal from a judgment of the general term of the city court affirming a judgment for plaintiffs entered on a verdict directed by the court at the trial term.</p>

<p>1. Dismissal —Failure of Proof—Pleading.</p> <p>In an action against a city for work done and materials furnished in constructing a sewer, where the answer admits that “certain work” was performed in constructing the sewer, a motion to dismiss, on the ground that plaintiffs had not proved that they performed the work or furnished the materials alleged, is properly denied, as they are entitled to recover at least a nominal amount.</p> <p>2. Appeal—Amendment of Pleadings—Stipulation—Action by Assignees.</p> <p>Sureties for performance of a contract for work brought suit, alleging that the work had been abandoned by the contractor and performed by them, with the con sent of the other party to the contract, and recovered judgment against the latter for the compensation agreed on. Held, on appeal from such judgment, that an objection that plaintiffs had not shown an assignment to them of the contract was obviated by an oral stipulation by counsel on the argument that the court should dispose of the appeal as though plaintiffs were properly assignees of the contract, and that the pleadings should be amended to show an allegation and admission of such assignment; the appellate court having power to allow such amendment.</p> <p>3. Municipal Corporations—Sewer Contract—Certificate of Commissioner.</p> <p>A contract with a city for the construction of a sewer provided that the work should be commenced on such day as the commissioner of public works should designate, and be completed within 60 days thereafter, excluding the time during which work might be delayed by difficulties that could not be foreseen or avoided, or by any act or omission of the city, “ all of which shall be determined by the said commissioner of public works, who shall certify to the same in writing. ” Held, that the obtaining of such certificate was not a condition precedent to the maintenance of an action to recover moneys earned under the contract. Following Dady v. Mayor, etc., 10 N. Y. Supp. 819.</p> <p>4. Liquidated Damages—Pleading.</p> <p>Under a contract providing for a deduction from the compensation agreed to be paid for the work contracted for, of a certain sum per day as liquidated damages for delay in completing the work beyond the time specified, the right to such deduction is not available to defendant in an action for the compensation unless pleaded either as a counter-claim or as a partial defense under Code Civil Proo. N. Y. § 508, which allows a partial defense to be set forth if “expressly stated .to be a partial defense. ”</p>

<p>Appeal from trial term.</p> <p>Action by Mary Malcolm against the Metropolitan Elevated Railway Company and the Manhattan Railway Company, for damages for injury to the rental value of plaintiff’s property from the maintenance and operation of defendants’ railway. Defendants appeal from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial. Plaintiff was owner of a life-estate only in the premises, and that estate was terminated by sale July 17, 1886, between which date and the date when the statute of limitations attached to the cause of action a period of four years, two months, and five days intervened; and it was damages during this interval only that plaintiff was allowed to recover.</p>

Action by Julius Lipman and William Cohen against William A. Mathesius and Isabella G. Anderson and others, to foreclose a mortgage. The defendant the Jackson Architectural Iron-Works appeals from a judgment of foreclosure and sale entered on a referee’s report.

<p>Assumpsit—Wokk and Labok—Pleading and Evidence.</p> <p>A complaint alleged that plaintiffs, at defendants’ request, performed services and furnished materials in making certain lithographs at an agreed price. The answer contained a general denial. At the trial, it appeared that the contract was that the lithographs should he “as per sketches” submitted. MeZd.that, as the complaint did not set out the whole contract, defendants, under their general denial, might avail themselves of the part omitted; and that it was error to refuse to charge that, if the lithographs were not according to the sketches, plaintiffs could not recover on the agreement.</p>

<p>Appeal from trial term.</p> <p>Action by Daniel McCampbell against the Cunard Steam-Ship Company, Limited. Defendant appeals from a judgment for the plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial;</p>

Action by William Rockwell and Charles J. Pearson against Thomas D. Hurst. Defendant appeals from a judgment of the general term of the city court affirming a judgment of that court entered on the verdict of a jury for plaintiffs for $540, and affirming an order denying a motion for a new trial.

Action by Louis H. Franchi against the Bruns wick-Balke-Collender Company, to recover damages alleged to have accrued to plaintiff by reason of delay on the part of defendant in the performance of a contract for services and material. Plaintiff appeals from a judgment for defendant entered on the verdict of a jury, and from an order denying a motion for a new trial.

. Action by Elvira Purdy against the Manhattan Railway Company and the Metropolitan Elevated Railway Company, for an injunction to restrain the maintenance and operation of defendants’ railway in the street frbnting plaintiff’s premises, and for the recovery of past damages therefrom. Defendants appeal from a, judgment for plaintiff entered on trial by the court without a jury.

Action by John H. Flagler against Richard S. Newcombe, to restrain enforcement of a judgment. Defendant appeals from a judgment for plaintiff entered on trial by the court without a jury.

Action by George H. Meyers and Jacob Meyers against Elias Meyers, Lena Stix, and Jacob W. Mayer. Defendants Lena Stix and Jacob W. Mayer answered the complaint. At the trial thereon, the court directed a verdict for plaintiffs. Said defendants appeal from a judgment of the general term of the city court affirming the judgment entered on the verdict, and affirming an order denying a motion for.a new trial. Eor former report, see 9 N. Y. Supp. 805.

Action by John O’Brien against the New York, New Haven & Hartford Railroad Company to recover damages for an alleged assault upon plaintiff by one of defendant’s employes. Defendant appeals from a judgment for plaintiff entered upon the verdict of a jury and from an order denying a motion for a new trial.

Action by Abel A. Crosby and others against the president, managers, and company of the Delaware & Hudson Canal Company, for damages for the alleged wrongful taking by the defendant of a quantity of lumber, which G. & S. Harnden had sold the plaintiffs, in part payment of a past indebtedness. The defendant had furnished the lumber to the Harndens to be used in building two canal-boats for the defendant.

Case submitted on agreed statement. Submission of controversy without action on statement of facts agreed upon, by Hugh H. Camp against Charles Cronkright, Philip F. dwell, (individually and as executor of Philip Malone, deceased,) Patrick dwell, Bridget dwell, and Patrick Malone.

<p>1. Appeal—Review—Weight op Evidence.</p> <p>When it does not appear that the findings of the referee are not supported by the evidence, or that they are not in accordance with the weight of the evidence, they will not be disturbed on appeal.</p> <p>2. Evidence—Admissions.</p> <p>While an action against a city was pending, the city council passed a resolution instructing the mayor to settle the claim. There was no other consideration for the resolution than that payment of the claim would relieve defendant from further defense, and one of the attorneys declared that he would not accept the proposition contained in the resolution, and the trial proceeded accordingly. Field, that the fact did not show an admission of liability by defendant.</p> <p>8. Same.</p> <p>When an attorney in fact leased rooms to a city for public offices at $400 per year, and afterwards sued the city for labor and material furnished in fitting them for occupancy, claiming under an independent contract, which was denied, it was proper to admit in evidence an article published by him in a newspaper pending negotiations for the lease, setting forth the advantages of the rooms, and stating that the owners offer to make alterations and fit them up complete without any expense to the city beyond the annual rent of $400.</p>

Action by Harriet E. Joslyn, as administratrix of Ai Joslyn, deceased, against George H. Rockwell and others, for trespass in wrongfully entering upon certain wild lands of plaintiff’s grantor and assignor, and cutting and converting wood and timber.

Action by William C. Lippus against the Columbus Watch Company. Plaintiff appeals from the judgment entered on a verdict in favor of the defendant, and from the order denying a motion for a new trial.

Exceptions from circuit court, New York county. Action by the people of the state of New York against Thomas Browm and others on an undertaking of bail upon which they were sureties. The defendant Brown alone answered the complaint. At the trial the court directed a verdict for plaintiff, and ordered defendant’s exceptions to be heard in the first instance at the general term.

<p>1. Judgment by Default—Action before Justice of the Peace.</p> <p>In an action before a justice of the peace for money due for services rendered, etc., testimony by plaintiff that he had a claim against defendants for labor performed at their request during a certain time, that they had paid him for some of the work, and that a certain sum remained due, no part of which had been paid and which plaintiff had demanded, is sufficient to sustain a judgment for plaintiff on defendants’ default, within Code Civil Proc. N. Y. § 2891, which provides that, “if a defendant fails to appear and answer, the plaintiff cannot recover without proving his case. ”</p> <p>2. Writs—Error in Date.</p> <p>Where the original summons is properly dated and made returnable, but the copy-served, by a clerical error, bears date as of the return-day, and the return-day is-properly stated in such copy, and it appears that defendants were not misled, thereby, such error will be disregarded, under Code Civil Proc. N. Y. § 3063, which requires the county judge to disregard technical errors which do not affect the-merits.</p>

Action by Hugh Hall against Christopher G-. Littleton. Plaintiff appeals from a judgment for defendant entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Burr Mattice against Henry Wilcox. The complaint alleged: “Since September, 1879, he has been an attorney and counselor at law, engaged in the business of his profession as a means of livelihood in the village of Oneonta, Otsego county, N. Y., and has been for about two years last past, and is now, attorney for the village of Oneonta, jST.

Action by William H. Rutty against the Consolidated Fruit-Jar Company. From a judgment entered on verdict and from order denying a motion for a new trial defendant appeals.

The defendants, Mary Andersbn and William Anderson, move for restitution upon the reversal of the order on their appeal. Eor decision on such appeal, see 11 N. Y. Supp. 883. Code Civil Proc.

Plaintiff is general assignee for the benefit of the creditors of the lessee. The assignee elected to accept the lease, and is in possession of the demised premises. Eor the rent accrued during his occupancy, he has tendered payment to the landlord, but it was rejected.

Motion by plaintiff. Philander Millington, to punish defendant, Emma Fox, for contempt for disposing of $650, her share of the proceeds of a policy of insurance upon her husband’s life, and for disposing of a horse and two buggies, in violation of an injunction order in supplementary proceedings. The insurance policy was a policy for $5,000 upon the life of defendant’s husband, Samuel H. Fox, payable to the defendant and her children in equal proportions.

Action by Blake & Johnson, a corporation, against Stephen R. ICrom, on two promissory notes made by defendant, payable to the order of plaintiff.

Certiorari by Michael Baftery to review the action of the police commissioners of the city of New York in dismissing the relator from the police force.

Action by Adolphus Bridgman against Ruth E. Scott, sued as Mary Scott. Defendant appeals from an order directing an inspection and discovery of her books, so as to enable the plaintiff to frame his complaint.

Action by Joseph Feiber against Joseph H. Lester, Jr., and Benjamin W. Palmer to recover damages on an undertaking given upon issue of an attachment. The verdict was for $175, and the trial judge made a qualified order allowing the plaintiff $50, and failing his acceptance the verdict was to be set aside. Plaintiff refused to reduce his verdict, and now appeals from the order.

Certiorari on the relation of Patrick O’Reilly to review the action of the police commissioners of the city of Hew.York in dismissing relator from the police force.

Certiorari by John L. Harvey to review the action of the police commissioners of the city of New York in dismissing relator from the police force.

Certiorari on the relation of Edward Fanning to review the action of the police commissioners of the city of New York in dismissing the relator from the police force.

Certiorari on the relation of John H. Winchell to review the action of the police commissioners of the city of New York in dismissing relator from the police force.

Action by Henry B. Pierce, as receiver of the corporation Mark Mayer, against Dressa Mayer, Charles Kaufman, Daniel E. Sickles, as sheriff of Yew York county, and Clark D. Bhinehart, as sheriff of Kings county. Defendants Mayer and Kaufman appeal from an order continuing an injunction, pendente lite, restraining any disturbance or interference with the proceeds of execution sales in the hands of the defendant sheriffs. For former report, see 11 Y. Y. Supp. 820.

Action by Catharine Scott, as administrator of Frank Scott, against the Third Avenue Railroad Company. There was a verdict for plaintiff for $2,875, and from the judgment entered thereon defendant appeals.

This action was brought by Marietta L. Lane, executrix, etc., of Richard H. Lane, for a judicial construction of two policies of insurance upon the life of Maltby G. Lane. The policies were issued by the New York Life Insurance Company on December 31, 1870. At the time the policies were written the family of the insured consisted of the following named persons: His wife, Elvina A. Lane; a son, Richard H. Lane; a daughter, Malvina A. De Mets. The wife died April 18, 1886.

Action by Milo Howell against The Joseph Edwards Dredging Company. There was a verdict for plaintiff for $900. From the judgment entered thereon in his favor, the defendant appeals.

Action by Lewis S. Chase against Marie L. Kellogg, to recover upon the following instruments: “$- ■ New York, April 20th, 1886. “We promise to pay to the order of L. S. Chase sixty dollars monthly, in the following manner, to-wit: $60.00 five days after date, and $60.00 on the 26th day of each succeeding month for six months from date, for the privilege of advertising purposes of two panels, each 8x22 inches, in 100 cars of the Central Park, North and East River R. R. Co.,…

Action by Manhattan Electric Light Company against Consolidated Telegraph & Electrical Subway Company. Plaintiff appeals from order vacating the examination before trial of the treasurer of the defendant.

Action by Arthur Terry against George E. Horne, as trustee for the benefit of Harriet E. Terry. Plaintiff appeals from a judgment dismissing his complaint upon the merits.

This action was brought by the plaintiff, as administrator of Charles A. Schwartz, deceased, to recover damages in the sum of $5,000 for the death of said Charles A. Schwartz, alleged to have been occasioned by the negligence of the defendants, a firm of builders, in whose employ the decedent was, in not providing a capable and suitable foreman or superintendent to oversee the work in the building 27os. 47 and 49 West Twenty-Sixth street, 27ew York city, and also in not…

Action by Joseph O’Donnell against the mayor, etc., of the city of New York. Defendant appeals from a judgment overruling a demurrer to the complaint.

' Action by the Bichardson So Boynton Company for injunction against the Barstow Stove Company and others. Defendants appeal from order continuing a preliminary injunction pendente lite.

Action by George E. Bacon against the New Home Sewing-Machine Company. There was a verdict for plaintiff, and from the judgment entered thereon in his favor the defendant appeals.

Separation proceedings instituted by Theresa Branth against John H. Branth. A judgment was entered granting a separation from bed and board of defendant in favor of plaintiff. Defendant was also ordered to pay plaintiff’s attorneys, Langbein Bros. & Langbein, certain costs and counsel fees. Defendant now appeals from an order adjudging, him to be in contempt for nonpayment of said costs and counsel fees. For former report, see 10 H. Y. Supp. 638.

<p>Appeal from special term, New York county.</p> <p>Action by Simon Rothschild against the Rio Grande Western Railway Company. Defendant appeals from an interlocutory judgment overruling its demurrer to the complaint.</p>

Action by Eunice A. Bigelow against Sarah J. Doying and William J. Bailey and others. Defendant Bailey appeals from an order confirming a report of a referee distributing the surplus moneys arising on the foreclosure of a mortgage.

An appeal by Frank A. Pierson from a judgment entered against him upon the verdict of a jury convicting him of a violation of Laws H. Y. 1887, c. 720.

Proceedings by the Metropolitan Elevated Railway Company to acquire the easements required for its railway on West Third street, New York, appurtenant to a lot on the south-west corner of said street and South Fifth avenue, known as “No. 64 West Third Street,” the property of Jefferson M. Levy.

Certiorari by John A. Thompson to review the action of the surrogate of Mew York county in removing relator from his position as attendant in the surrogate’s court.

<p>Appeal from judgment on report of referee.</p> <p>Action by Josephine F. Clason and another as executors of William Jones Clason, deceased, against Elizabeth S. Baldwin, as executrix of George R. Baldwin, deceased. For former report, see 9 H. Y. Supp. 609.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Joseph Aron against Alfred de Castro. There was judgment for defendant, and plaintiff appeals.</p>

<p>Witness—Correction op Testimony—New Trial.</p> <p>In a closely contested action the only witness, except the parties, while testifying for plaintiff, but not in response to any question asked, stated that defendant “would forge a man’s name as soon as he would do any thing else. ” Before the close of the trial witness asked plaintiff’s attorney to let him withdraw the statement, as it was made under great excitement, caused by what the witness considered a savage attack upon his character by defendant’s counsel. This being refused him, witness, after the trial, sent a written retraction to defendant, who thereupon moved to have the verdict recovered by plaintiff set aside. Held, that the motion should have been granted.</p>

Action by Leopold Wise and another against High J7Grant, as sheriff of the city and county of Mew York, and Maier B'othsehild. Defendant Grant appeals from a judgment entered upon a verdict in favor of plaintiffs.

Action by Joseph Libmann and another against the Manhattan Elevated Railway Company and the Metropolitan Elevated Bail way Company. From, the judgment entered in plaintiff’s favor the defendants appeal.

York county. Action by Augustin Daly against Gustav Amberg. Appeal by Herman Schoenberg, Leo Winterfield, and August Walther from an order directing their punishment for disobeying an injunction order issued in this action.

<p>Malicious Prosecution—Probable Cause.</p> <p>In an action for malicious prosecution it was shown that one K. had bought goods from defendant, and paid for them with a check that proved to be forged. He afterwards confessed, and stated that he passed the check at the instance of plaintiff, who, he said, had forged it. Plaintiff was arrested on a warrant procured by defendant, and some of the goods were found in his possession, but he offered no explanation. He was presented to the grand jury, indicted for forgery, and acquitted. Held, that there was probable cause for the prosecution, and it was error to submit the question to the jury.</p>

<p>1. Mandamus—Denial—Appeal—Review.</p> <p>On appeal from, an order dismissing appellant’s application for mandamus to compel the board of police commissioners to print his name as candidate for the office of alderman on two sets of ballots, the merits will not be considered where the order was made after the election had taken place, as no advantage can result . to appellant.</p> <p>Si. Same—Costs.</p> <p>But where costs were awarded against appellant on the dismissal of his application, the order will be modified so as not to include costs, and, as so modified, will be affirmed.</p>

Action by James McDonald against the city of Troy, for personal injuries sustained by driving at night into a pile of building material left in the street. Judgment for plaintiff, and defendant appeals.

Action by John McDowall against Cornelius Sheehan to charge the latter with personal liability as a stockholder of the Saratoga Union, a newspaper corporation. The action was brought under Laws if.

<p>Partnership—Accounting—Extra Expenses—Illness of Partner.</p> <p>Under a partnership agreement between plaintiff and defendant in the banking end stock commission business, plaintiff agreed to attend to all business of the firm in the stock exchange, and defendant agreed to give all his time and attention to the office business. Plaintiff was prevented from performing- his part of the business by illness, and, defendant not being a member of the stock exchange, it was necessary to employ brokers to perform plaintiff’s duties. Held, that the amount paid to the brokers so employed was not an expense to be borne by the firm, but should be charged to plaintiff personally. Affirming 13 N. Y. Supp. 140.</p>

Action by Charles Gilpin, Jr., against John Daly. Plaintiff appeals from an order vacating an order for the examination of the defendant as a witness for the plaintiff before trial. For former report, see 11 N. Y. Supp. 6, 12 N. Y. Supp. 448.

Action by Charles Gilpin, Jr., against Luce Appleby and others. Plaintiff appeals from orders vacating an order for the examination of the defendants as witnesses before the trial. For former reports, see 11 N. Y. Supp. 6, 12 N. Y. Supp. 448.

Action by Augusta G. Genet against the president, etc., of the Delaware & Hudson Canal Company. For opinion of general term granting a new trial in this action, see 12 N. Y. Supp. 572.- Plaintiff now appeals from an order denying her motion for the appointment of a new referee.

<p>1. Mortgages—Foreclosure—Resale.</p> <p>On a motion for a resale of land sold under a mortgage, it appeared that the attorney for plaintiff in the foreclosure suit had been attorney for the owner of the mortgaged premises, and that he told her husband that there would be no deficiency judgment. Plaintiff’s attorney testified that he made arrangements to have $25,500 bid at once, but was dissuaded from doing so by the owner and her husband, on the ground that, “if the bidding was started at $25,500, there would not be another bid. ” The property was bid in for plaintiff for $18,000, leaving a deficiency in the mortgage debt of over $7,000. Plaintiff conveyed the premises to one M. for $18,000. There was only one bidder at the sale, and an adjournment was refused. Held, that a resale was properly ordered.</p> <p>2. Same—Service of Motion Papers.</p> <p>The papers on a motion for a resale of property sold under a mortgage, and bid in for plaintiff, are properly served on the attorney for plaintiff in the foreclosure suit, though plaintiff conveyed the property to a third person.</p>

<p>Practice in Civil Cases—Order to Disclose ^Plaintiff’s Address.</p> <p>It is in the discretion of the court to grant an order requiring plaintiff’s attorney to disclose plaintiff’s address, and in default thereof staying the action, and such order will not be disturbed on appeal unless there is a clear abuse of discretion.</p>

Application by Henry Q. Ockershausen to punish George P. Ockershausen for contempt in-failing to pay to petitioner a sum of money as directed by the surrogate.

Action by Albert M. Kalbfleish and another against Charles H. Kalbfleish, to dissolve the firm of Martin Kalbfleish’s Sons, which had failed.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Cornelius Ferguson against F. Sanford Boss and another. Judgment was entered on a verdict for plaintiff, and defendants appeal.</p>

<p>1. Injuries to Passengers—Evidence—Question for Jury.</p> <p>While defendant’s ferry-boat, on which plaintiff was a passenger, was attempting to enter its slip, it struck the side. After the boat struck, plaintiff rose from Ms seat, when it struck again, causing him to fall, and break his leg. Several witnesses testified that the boat came to the dock with unusual violence. There was no exceptional weather or tide to make landing difficult. Held, that the evidence was sufficient to justify the submission of defendant’s negligence to the jury.</p> <p>2. Same—Contributory Negligence.</p> <p>In such case, the fact that plaintiff did not keep Ms seat until the boat moved to the dock, does not show such contributory negligence as to take the case from the jury.</p>

<p>Habeas Corpus—Pleading.</p> <p>When a return to a writ of habeas corpus contained the commitment and a copy of the complaint, and a traverse was interposed, denying that the petitioner was examined, or any evidence taken, an issue of fact is made up, and the case should be heard on the evidence.</p>

<p>Appeal from city court of Yonkers.</p> <p>Action by Peter F. Murphy against the city of Yonkers. Judgment was entered on a verdict for plaintiff, and defendant appeals.</p>

Partition proceedings instituted by Robert Connor against Charles Connor, Mary Ann McGarrity, and Robert McGarrity, and others. Defendants Mc-Garrity appeal from an order denying their motion to' vacate the interlocutory judgment entered therein.

<p>Appeal from special term, Kings county.</p> <p>Action by Lazarus Belfor against Morgiana Ludlow and others, to foreclose a mechanic’s lien for $721.61. There was a judgment for plaintiff for $314.20 and costs, and defendant Joseph Ryan appeals.</p>

Proceedings on the relation of Anna Maria Dean to review the proceeding» of the assessors in appraising the loss and damage sustained by the relator by the closing of the Kingsbridge road and intersecting streets, under Laws N, Y. 1867, c. 697.

<p>Appeal from special term, New York county.</p> <p>Action by William B. D. Stokes against Anson P. Stokes and FrederickP. Olcott, sole surviving partners of Phelps, Stokes & Co., and John A. Stewart and others, executors, etc., of Isaac N. Phelps, deceased. The defendants, executors, appeal from interlocutory judgment overruling their demurrer to the complaint.</p>

Action by Michael O’Brien against Robert J. Smith. Defendant appeals from a judgment rendered upon a verdict directed in favor of the plaintiff. Questions put to plaintiff’s assignor as to whether the witness was acquainted with plaintiff, and whether plaintiff was not bringing the suit as agent, were excluded, upon objection by defendant.

<p>Dismissal oe Appeal—Another Action Pending.</p> <p>An appeal will not be dismissed on the ground that since it was taken the appellant has brought an action to recover upon the cause of action set up in his counterclaim, it appearing that the counter-claim was stricken out for failure to furnish a bill of particulars thereof.</p>

<p>1. Banks—Collections—Mistake.</p> <p>To relieve a bank from liability to refund money paid to it for the account of its principal through fraud or mistake it must have actually paid over the same to the principal, and the giving the principal credit for the amount on the bank’s books is not sufficient.</p> <p>2. Same—Payment of Altered Draft.</p> <p>A draft for $12.50, drawn on plaintiff by a correspondent, was raised to $5,000, and, as so raised, cashed by plaintiff upon defendant’s presenting it indorsed for collection. Heicl that, upon discovery of the fraud, plaintiff could recover from defendant the amount paid to it less $12.50, unless the signature of the drawer was also a forgery, and that the fact that the genuine signature of the drawer had been touched up a little with a brush or quill, but not essentially altered, did not constitute it a forgery.</p> <p>3. Proof of Handwriting.</p> <p>The testimony upon the part of defendant to show that the drawer’s signature was a forgery was that of experts, who were unfamiliar with the signature, and who only testified from scientific tests, and a comparison of the signature with those acknowledged to be genuine, and from the appearance of the signature of the draft in question. On the other hand, the drawer himself, and various persons who had seen him write, and were familiar with his signature, all swore that in their opinion the signature was genuine. Meld, that a finding in favor of the genuineness of the signature would not be disturbed, and that the fact that the drawer had written a letter in reference to his signature, in which he did not express himself in as positive terms as he did as a witness, in no way discredited his testimony.</p>

<p>Appeal from court of sessions, New York county.</p> <p>. This is an appeal by Charles Webster from his conviction of the crime of manslaughter in the first degree.</p>

Action by Ludlow W. Valentine, an infant, by George W. Bergen, his guardian ad litem, against Hermann T. Eichardt and others, to set aside a deed executed by his deceased mother, whose sole heir at law plaintiff was. Judgment was entered for plaintiff for the value of the land, aud defendant Eichardt appeals. For former report, see 12 H. Y. Supp. 196.

Action by Adolph Ansbacher and another against Isaac Pfeiffer. Plaintiffs appeal from a judgment rendered against them upon a dismissal of their complaint.

<p>Motion by Duncan McLaren and others to compel the county clerk of Albany county to correct omissions on ballots.</p>

<p>Elections—Certificate of Nomination—Filing Nunc pro Tunc.</p> <p>A certificate of nomination of police commissioners to be chosen at a general election was filed with the county clerk as required by Laws N. Y.1890, c. 262, § 5, but contained no authorization to fill out the names of state, district, and county officers to be placed on the same ballot. After the supreme court decided that the names of the police commissioners were to be put on the official ballots with the other officers, and 8 days before the election, the proper authorization was filed. Meld that, though the act requires such filing to be made 12 days before the election, it should be made nunc pro tune, and the official ballots printed and distributed.</p>

. Action by Francois P. Faivre against the Union Dime Savings Institution for a balance of money deposited with defendant as a savings hank under an agreement by defendant that it might be drawn by either plaintiff or one Josephine Laurent, or, in case of the death of one of them, by the survivor.

Action by Samuel Adams and John Flanigan against Patrick McCann, Maria McCann, and the Garfield National Bank. Plaintiffs and Patrick Mc-Cann had been partners, and the latter had transferred to plaintiffs all his interest in the firm, including money deposited in bank in his name, for part of which he had previously given to his wife, the defendant Maria McCann, a check on the bank.

Action by Hugh Donnelly against George B. Morris. Plaintiff and defendant were copartners in business in New York city since 1877, and this action is for an accounting. During the partnership plaintiff gave to defendant a non-negotiable promissory note for about $1,300, secured by a policy of insurance on the life of plaintiff. The defendant received the moneys of the partnership, and was to apply the plaintiff’s share to the payment of the note.

Action by Florence Cushman against the Family Fund Society. Defendant appeals from a judgment of the general term of the city court affirming a judgment entered upon a verdict for the plaintiff rendered by the direction of the court. For former opinion, see 9 FT. Y. Supp. 272.

<p>Appeal from Queens county court.</p> <p>Action by James Donnelly against Edward J. Woolsey. Judgment was entered on a verdict for plaintiff, and defendant appeals.</p>

This was an action by Albert Schorning against the Knickerbocker Ice Company, to recover damages for personal injuries.

<p>Real-Estate Brokers—Commissions.</p> <p>Defendant employed plaintiff to sell a house for him at $4,600. Plaintiff was in negotiation with one D., who refused to pay the price, and he told defendant so, but defendant refused to take less, and did not terminate the contract with plaintiff. Afterwards defendant sold to D. for $4,200. Held, that plaintiff was entitled to recover commissions as the procuring cause of the sale.</p>

Action by John McDermott against the New York Central & Hudson River Railroad Company. It was stipulated on the trial that the court might reserve right to dismiss the complaint after verdict. After the trial the court set aside a verdict for plaintiff, and dismissed the complaint. Plaintiff appeals.

Action by William Romer against James C. Mix, as maker, and Keese Carpenter, as indorser, of a promissory note. There was a judgment for plaintiff, and defendant Mix appeals.

<p>Appeai,-Bond—Liability or Sureties.</p> <p>Plaintiff obtained a judgment against a railroad company in the supreme court for §3,659.08, which was affirmed" by the general term, and judgment entered for $122.97 costs. On appeal to the court of appeals the undertaking, signed by defendants, recited the judgment of the general term against the railroad company for §132.97, costs of affirmance, and bound defendants “to pay all costs and damages which may be awarded against it [appellant] on said appeal, not exceeding §500, ” should the judgment be affirmed or the appeal dismissed. Code Civil Proc. N. Y". § 1832, provides that, “where the judgment or order from which an appeal is taken to the court of appeals affirms a judgment or order, * * * the undertaking must be the same as if the judgment or order from which the appeal is taken was to the same effect as the judgment or order so affirmed. ” Held, that the undertaking did not require defendants to pay the original judgment, but only the judgment for costs.</p>

<p>Adjoining Land-Owners.</p> <p>Where defendant placed sand on his lot against the brick wall of his neighbor’s building, and the pressure injured the wall, he is liable therefor.</p>

<p>1. Abatement—Another Action Fending.</p> <p>In an action for rent due under a lease for certain months, brought after the end of the term, the defense of another action pending for rent for subsequent months is not sustained, where it does not appear when such action was brought.</p> <p>2. Landlord and Tenant—Eviction.</p> <p>A trespass by third persons on leased premises is not an eviction of the tenant by the lessor.</p>

<p>Appeal from circuit court Richmond county.</p> <p>Action by Stephen D. Barnes and William Wheeler, as administrators of Judith Barnes, deceased, against Ann L. McDonald. There was a judgment for plaintiffs, and defendant appeals.</p>

Action by George J. Axt and others against John F. Shankey. There was a judgment for plaintiffs, and defendant appeals. For former report, see 8 N. Y. Supp. 803.

Action by Andrew Wood against Peter Lawrence for $882.91, due under a contract for the erection of a house by plaintiff, and for money loaned to purchase the lot on which the house was erected. Judgment was entered for plaintiff for $200, and plaintiff appeals.

Certified from city court of Brooklyn, general term. Action by Samuel Peden, Jr., against Albert Smith, in the city court of Brooklyn. An appeal was taken to the general term of said court, whereupon the chief judge thereof certified it to this court.

<p>Appeal from Westchester county court.</p> <p>Action by William P. O’Cdnnor, as agent of the Sisters of Charity of St. Vincent de Paul, against William Schmitz and others, to recover certain premises leased by plaintiff to one Lunny, and sublet by Lunny to Schmitz. A judgment of the justice of the peace was reversed by the county court, and defendant Schmitz appeals.</p>

Exceptions from circuit court. Kings county. Action by Charles S. Higginson, as assignee of the administratrix de bonis non of J. B. Fuller, against the Second National Bank of the City of New York. Plaintiff’s assignor was the successor of Sarah L. Puller, who had been appointed administratrix of decedent, and was afterwards removed. A verdict was directed for defendant, and plaintiff’s exceptions were ordered to be heard at general term in the first instance.

Accounting of Abraham B. Valentine, as trustee under the will of Abraham Valentine, deceased. George F. Valentine claimed the distributive share of John E. Valentine, one of the grandsons of testator, who survived the 16-year period referred to in the opinion, under an assignment by said John H. Valentine, made before the end of such period, of his share. John H. E. Valentine claimed said share as the only child of John H. Valentine.

Action by Charles H. Otis against Andrew T. Bertholf and others, to set aside a general assignment by defendant Josiah Otis to Bertholf, executed on December 26, 1888, and also certain mortgages executed by the assignor on the business day preceding, as constituting a single transaction, and intended to evade Laws N. Y. 1887, c. 503, providing that in all general assignments any preferences created therein shall not be valid, except to the amount in value of one-third of the…

<p>Appeal from Dutchess county court.</p> <p>Action by Walter F. Taber against John Cruthers for trespass by defendant’s cattle on plaintiff’s land. In constructing a railroad through plaintiff’s land a deep cut was made. The railroad company agreed to build a bridge over the cut so that plaintiff could pass from one part of his land to the other. Afterwards the company made a temporary agreement with plaintiff and one Haggerty, whose land lay between the lands of plaintiff and defendant, by which he gave them a right of way through land of defendant then occupied by the company. A lane was opened between the railroad and the lands of plaintiff and Haggerty to defendant’s line, where an opening was made in the fence. Thence plaintiff and Haggerty passed over defendant’s land to a gate on the highway. After the railroad company had ceased to occupy the land over which the way was opened, plaintiff and Haggerty continued to use it without objection. Defendant’s cattle went through the opening between defendant and Haggerty. A judgment of the justice was affirmed by the county court, and defendant appeals.</p>

, Application by Charles H. Wilson for mandamus to the board of trustees Of the village of Mt. Yernon. The writ was granted, and defendant appeals. Latvs N. Y. 1890, c. 163, is entitled “An act to prohibit excise commissioners, excise inspectors, police officials, or their subordinates from being interested in the manufacture or sale of any spirituous or malt liquors, ales, wines, or beer.”

<p>Appeal from court of sessions, Kings county.</p> <p>James E. Morgan, alias Thomas Morgan, alias Thomas Matthews, was convicted of having burglars’ tools in his possession, and appeals.</p>

<p>Abatement—Another Action Pending.</p> <p>In an action for rent the complaint alleged that it accrued during the years 1887 to 1890 under a lease of mining land, executed in 1883, which provided that the lessee should pay certain royalties on the ore, quarter-yearly, and, if such royalties should fall short of 81,000 in any one year, the lessee should pay such an additional sum as would make the rent amount to 81,000. The answer alleged that in 1885 the lessors sued defendant for money due under the lease, and recovered a judgment, which was still pending on appeal. Held, that the pendency of such former action was not a bar to the second action.</p>

Action by Deborah B. Upton, as administratrix of William G-. Upton, against Edward B. Bartlett and others, for injuries causing the death of plaintiff’s intestate. While deceased was attempting to close a door on defendants’ inclosed pier, on which he was night watchman, a piece of timber fell upon him, and knocked him into the water, causing pneumonia, of which he died. Judgment was entered on a verdict for plaintiff, and defendants appeal.

Action by Julia F. Chevers against Carrie M. Damon and others to foreclose a mortgage. After the mortgage was recorded defendants John Clark, Stewart Clark, and William Clark obtained judgments against the mortgagor, which were duly docketed. Said defendants were made defendants in the action for foreclosure, personal service was had on William Clark, and the other two were served by publication.

<p>Appeal from special term, Westchester county.</p> <p>Action.by John Copcutt against the city of Yonkers and others to restrain a threatened sale of plaintiff’s land. There was a judgment for plaintiff, and defendants appeal.</p>

<p>Excessive Damages—Personal Injuries.</p> <p>A verdict awarding §1,500 as damages for personal injuries sustained by defendant’s negligence will not be set aside as excessive, where it appears that plaintiff was a working girl 19 years of age, and earning §20 per month and her board; that her clothing, to the value of §70, was totally destroyed by the accident; that she had incurred medical bills to about §200; that the injury prevented her from earning any wages for nearly two years; that she was more than a month in bed; and that since the injury she had always had more or less suffering by reason thereof.</p>

Action by William Paine against Elizabeth W. Aldrich, impleaded with others, to set aside certain conveyances made by plaintiff’s grandfather, John Paine. Plaintiff appeals from a judgment dismissing the complaint as to defendant Elizabeth W. Aldrich.

Stevenson and others to review their action in imposing and confirming an assessment for the building of a sewer in Eighth avenue, between 105th and 114th streets. The list was made up in the usual way, objections were urged before the board of assessors, which were overruled, and the list transmitted to the board of revision and correction.

<p>Appeal from special term, New York county.</p> <p>Action by William R. Peters and another against Winfield S. Chamberlain and N. J. Botsford. From a judgment dismissing their complaint the plaintiffs appeal.</p>

Certiorari, on the relation of Nathan Wise and others, to review an apparent determination of the board of assessors in distributing over private property the entire costs of filling in certain lands, etc.

<p>Highways—Establishment.</p> <p>On an application to open a public highway, it appeared that orchards and house inclosures were required therefor; that the proposed road would benefit but few people, and very slightly; that the cost would be very heavy; and that the existing road, which the proposed road was to replace, was sufficient for the public use. Held, that the application should be denied.</p>

Action by Lizzie Koetter against the Manhattan Railway Company. There was a verdict for plaintiff for $10,000. From the judgment entered thereon the defendant appeals.

This is an appeal by George W. Patterson and Eliza Brogan, refusing probate of the last will and testament of John Patterson, deceased, on the ground of undue influence exercised by said George ~VSf. Patterson.

<p>Appeal from circuit court, New York county.</p> <p>Action by the New York, Lake Erie & Western Railroad Company against the Atlantic Refining Company. There was a verdict for plaintiff, and defendant appeals.</p>

<p>Contracts—When Complete.</p> <p>Plaintiff, after negotiations with defendant as to the purchase office, telegraphed to defendant: .“I accept your offer. Deliver 200 tons in one week or later. Will see you ifonday. ” On the same day defendant wrote to plaintiff: “I have ordered a cargo for' you. To make it secure, you had better send me a certified check for S500. ” Plaintiff went to defendant’s office, where the parties proceeded to draw up a contract in which it was stated, “Ice to be paid for on B. L., in-take weight in Maine.” Plaintiff objected, to this provision. Defendant explained “in-take weight, ” and the way in which ice was sold, and finally said to plaintiff: “As long as you do hot understand this, we will call the trade off;”.to which plaintiff replied, “Very well, we will call the trade off, ” and went out. About two hours later plaintiff served a notice on defendant that he would require delivery of the ice. Held, that the minds of the parties never met on the terms for a sale of the ice.</p>

Action by Silas L. Griffith against Andrew H. Green and others, as executors of W. B. Ogden, deceased. There was a judgment for defendants, and plaintiff appeals.

Action by David Parry against the Citizens’ Water-Works Company to restrain defendant from diverting the water of a brook which flowed through plaintiff’s land. An injunction pendente lite was granted, and defendant appeals.

<p>Relea se—Effect—Matters not Included.</p> <p>In an action for injuries to plaintiff’s business and property, it appeared that plaintiff occupied a store where he sold sewing-machines. Among other machines he sold those of defendant, under an agreement by which the price was not payable until the machines were sold. A dispute having arisen as to moneys alleged to be due to plaintiff, he retained S604 collected by him for machines sold. Defendant had plaintiff arrested, and plaintiff, to procure his release, gave defendant a bill of sale of certain property in his shop. Afterwards plaintiff sued defendant for §1,500, alleged to be due him, whereupon defendant forcibly took possession of plaintiff’s shop, and brought various criminal charges against him. Plaintiff then applied to defendant for a restoration of his property, saying that he could resist no longer, which defendant agreed to do if plaintiff would release his claim for §1,500 and for malicious prosecution. The release was a general one. After plaintiff’s property was returned to him he discovered that it had been greatly damaged. Held, that plaintiff’s action was not barred for such injuries as he was ignorant of at the time he signed the release.</p>

Action by Joseph Perry against Euphemia W. Bedell and others to set aside a deed executed by James W. Bedell to Thomas B. Bedell, dated September 14, 1870, and by Thomas B. Bedell and wife to Euphemia W. Bedell, the wife of James W. Bedell, dated September 15, 1870; both deeds being certified as having been acknowledged on the latter day.

<p>Appeal from special term, Kings county.</p> <p>Action by Rosalie Adele Oakley against J. Lyon Gardiner and others. There was a judgment for plaintiff, and defendants appeal.</p>

.Appeal from special term, Kings county. Application by Rosalie Adele Oakley for mandamus to Frederick W. Bleckwenn, as treasurer and receiver of taxes of Long Island City, to accept improvement certificates in lieu of cash for the redemption of land sold for the non-payment of assessments. The writ was granted, and defendant appeals.

Action by Bomaettie Dunworth against Samuel Dunworth to reform a deed from Nathaniel H. Clement, as referee in a foreclosure action, to James A. Dunworth, thehusband of plaintiff and father of defendant. There was a judgment for defendant, and plaintiff appeals.

Application by the Citizens’ Water-Works Company to condemn land of David Parry and another. Laws U. Y. 1876, c. 415, provides that whenever any water-works company formed under Laws If. Y. 1873, c. 737, “shall have fully completed its organization as provided by said act, and shall have made a contract with any town or village to supply such town or village with pure and wholesome water,” such company may condemn land for the purposes of its incorporation.

Action by Ira Porter against the New York, Lake Erie & Western Railroad Company for personal injuries. There was a judgment for plaintiff, and defendant appeals.

Action by Thomas Watts, as receiver, against Franklin A. Wilcox and others. A demurrer to the complaint was overruled, and defendants appeal.

<p>1. Ejectment—When Lies—Grant from State.</p> <p>Ejectment may be maintained for land granted by the state to plaintiff and in the possession of defendant.</p> <p>2. Riparian Rights—Land under Water.</p> <p>Where a riparian owner conveys his land he cannot reserve any right to the adjacent land under the water, of which he has received no grant from the state. The grantee becomes the riparian owner, and as such is entitled to apply to the state for a grant of the land under the water.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Andrew Moylan against the Second Avenue Railroad Company. There was a verdict for plaintiff, and defendant appeals.</p>

Action by Charles B. Linton against the Unexcelled Fire-Works Company to reform or set aside a written agreement entered into between the parties.

Action by Lizzie V. Bevans against Lydia F. Young and others for specific performance of a contract to sell land. There was a judgment for defendants, and plaintiff appeals.

Action by Isaac W. Sherrill, as treasurer of Dutchess county, against Louisa Hewitt, to recover unpaid taxes. There was a judgment for plaintiff, and defendant appeals.

Action by Edward Jacoby against Henry A. Ockerhausen for injuries received by plaintiff from defendant’s dogs. There was a judgment for plaintiff, and defendant appeals.

Action by Thomas J. Turnier against Richard Lathers. The complaint was dismissed, and plaintiff’s exceptions ordered to be heard in the first instance at the general term.

<p>1. Liquidated Damages—Sale of- Good-Will.</p> <p>A contract for the sale of a business, which contained a stipulation that the seller should not carry on the same line of business for five years, provided that “for any forfeiture or non-compliance with this portion of the agreement” the seller “shall pay * * * the sum of 85,000, which is hereby agreed upon as liquidated damages, and shall be due and owing * * * immediately upon such forfeiture or non-compliance. ” Held, that upon breach of the stipulation the purchaser became entitled to the $5,000 without proof that an equivalent amount of damage had been sustained by him.</p> <p>3. Action on Contract—Evidence—Conversations.</p> <p>In an action for breach of such contract, conversations between the parties prior to the execution of the contract, concerning the right of the seller to take orders in the class of work included in the business transferred, were properly stricken out, as having merged in the contract.</p> <p>Questions put to the vendor on his cross-examination, as to business transacted by him after the commencement of the suit, were competent to affect his credit.</p> <p>8. Witness—Examination—Credibility.</p> <p>4. Good-Will—Breach of Contract—Evidence.</p> <p>The action depending upon the fact whether defendant had, without authority iron- plaintiff, carried on the same line of business, evidence of plaintiff’s partner as to orders received for defendant, and filed, did not prejudice defendant’s rights.</p> <p>6. Evidence—Declarations of Attorney.</p> <p>Statements of plaintiff’s attorney in his absence were properly excluded, it not appearing that the attorney was authorized to compromise plaintiff by any statement he might make.</p>

<p>Appeal from special term, Kings county.</p> <p>This was an action by T. Mitchell Tyng against Samuel R. Good for an accounting, and to adjudge plaintiff the owner of a half interest in the premises described in the complaint. There was a trial before a referee, who rendered the following opinion:</p> <p>“The plaintiff, T. Mitchell Tyng, attorney at law, practicing in the city of New York, an expert business man, methodical and exact when disposed, with a knowledge of book-keeping, became about July, 1888, the attorney and financial disbursing agent of J. and T. Charlton, engaged in the lumber and sash, door, and general planing business, located at Tonawanda, in the state of New York. The said J. and T. Charlton were, aboutthe time mentioned, engaged in completing ten new buildings nearly finished, and erecting and completing eleven other houses, all on the same plot of ground in the city of Brooklyn. The Charltons were also furnishing ‘trim’ for various buildings in process of erection in different parts of that city. Large sums of money were from time to time sent by the Charltons to their disbursing agent, the plaintiff, and by him deposited in the bank in his own name, and not as agent or trustee of the Charltons. The said moneys were to be used in paying for the erection and completion of said buildings, and paying charges and expenses connected with their extensive business as dealers in timber and • trim.’ The defendant, Samuel B. Good, was a carpenter, and had been the foreman of one John G. Porter, who had commenced the erection of the buildings before referred to, but, after erecting some ten of them, had financially failed; and by an agreement between the said Porter and the said Charltons title was conveyed to the Charltons, who proceeded to the completion of the first ten and the erection of the remaining eleven, employing the said Good as superintendent; the said Good being furnished with checks drawn by the said Tyng, the plaintiff, from the money appropriated by the Charltons. The defendant, Good, had no knowledge of book-keeping, but roughly kept an account-book of moneys received on one side, and paid out on the other. He kept no bank-account, and had no acquaintance with bank officers or bank business. He was without money, and without credit except such as he may have acquired while acting as superintendent for the Charltons. The business intercourse continued between Tyng and Good after the completion of the Charlton buildings. While Good ceased to be superintendent from about December 1, 1888, and ceased to receive four dollars per day, he still remained connected with the business of the Charltons, and was employed by them in a variety of ways, mostly under the direction of Tyng, up to the month of May, 1889, though he does not seem to have entirely ended his connection with the Charltons until late in the same year.</p> <p>“On and prior to the 19th day of January, 1889, one Jacob G. Dettmer, of the city of Brooklyn, was the owner in fee of the premises mentioned in the complaint herein, and on that day the said Dettmer contracted in writing under seal to sell the said premises to the defendant in two parcels at the price of $14,900 for one parcel, and $10,950 for the other; said parcels of land to be thereafter conveyed by the said Dettmer to the defendant, to be paid for, at the time of such conveyance, by the defendant’s bonds and mortgages thereon to the amount of the entire purchase price thereof. On the same day the said Dettmer entered into a ‘building loan agreement’ in writing under seal with the defendant, whereby the defendant agreed to erect eighteen houses upon said premises as specified in said agreement, and the said Dettmer agreed to advance to the defendant, in aid of the construction of said buildings, the sum of $40,700 by installments, at the times and in the manner specified, of which $21,800 was to be advanced upon the first nine of the said houses, the balance upon the remainder; the said houses being built in two parcels, the first parcel of nine houses to be completed before the second parcel was commenced. About the month of January, 1889, the said plaintiff and defendant had occasional conversations concerning the proposed purchase by Good of said premises from the said Dettmer, and of the proposed erection of buildings on said premises, and of the amount of money necessary to ‘ start the enterprise ’ and complete the building in excess of the1 building loan.’ At some date in January, not specified in evidence, but agreed on by plaintiff and defendant as the 20th of 'January, 1889, in the office of the plaintiff, the plaintiff spoke of being about to receive certain moneys, and of his willingness to join in said undertaking, and the defendant manifested an equal willingness that the plaintiff should do so. There was no agreement in writing; no written memorandum of agreement There is not a single word in black and white offered in evidence that expresses such an agreement. The terms of. the agreement, as stated by the plaintiff in his testimony in chief, are widely different from those stated by the defendant in his answer to the plaintiff’s complaint and in defendant’s testimony, nevertheless the parties, plaintiff and defendant, have agreed to the following as the verbal agreement entered into as of January 20, 1889: (1) That he, said plaintiff, would advance and pay over to the defendant the sum of $1,000 in cash, to be used by the defendant in the construction of said buildings; (2) that he, said plaintiff, would introduce, the said defendant to the officers of some suitable bank in Brooklyn where the defendant might open an account; (3) that he, said plaintiff, would further furnish to the defendant, to be deposited and held in and by such bank, in the name and for the account of the said defendant, mortgages to the value of $5,200, by means of which securities the defendant might secure the discounting of his notes by said bank; and (4) that he, the said plaintiff, would advance to the defendant, from time to time upon demand, such sums of money as might be required by defendant to proceed with the erection and completion of the said premises.</p> <p>“As I will have most to say concerning the first stipulation, I will reserve that until the last. The plaintiff never introduced defendant to the officers of some suitable bank in Brooklyn, nor did he ever offer to do so, nor did he make any effort to do so. He gave defendant a note of introduction to Bichard In-graham, a lawyer of Brooklyn, who had had business relations with the Charltons; but it is not pretended that Mr. Ingraham was a bank officer, and there is nothing to show that plaintiff knew Ingraham except in his capacity as agent for the Charltons. At least such is my interpretation of the words,</p> <p>• He [Good] is measurably connected with us.’ In fact, the letter of introduction admits that plaintiff did not know any banks in Brooklyn, for he writes to Mr. Ingraham, ‘ Perhaps you will introduce him at your bank, as I do not know any of your banks, or I would introduce him.’ This note of introduction was in no way a compliance with the agreement, and was never presented to Mr. Ingraham, and defendant does not appear to have ever opened a bank-account.</p> <p>“The plaintiff failed to comply with the third stipulation. He did not furnish the defendant, to be deposited and held in and by said bank in the name of the defendant, mortgages to the amount of $5,200, by means of which securities the defendant might secure the discounting of his notes by said bank. There is not a particle of evidence that the plaintiff ever had any mortgages of his own. There is evidence that plaintiff had in his custody second mortgages belonging to said Charltons to the amount of $5,200, but there is nota particle of evidence that the said plaintiff had any authority to assign said mortgages to defendant, nor the slightest proof that plaintiff ever took a single step to do so.</p> <p>“Plaintiff failed to comply with the fourth stipulation, namely, that he would advance to the defendant from time to time, upon demand, such sums of money as might be required by the defendant to proceed with the erection and completion of said premises. The plaintiff and defendant, in their proposed findings, agree that about the middle of June, 1889, on Monday or Tuesday, the defendant went to the office of plaintiff, and told plaintiff that he would have to loan $600 the following Saturday, to payoff the mechanics and laborers that worked upon the buildings mentioned in the complaint. The plaintiff told the defendant that he (plaintiff) was very hard up, but that he would have some money about July, and then he would help him (defendant) right out. The defendant went to the plaintiff’s office again on Monday or Tuesday about the last week of June, and the plaintiff told him that he (defendant) would have to carry him (plaintiff) along until about the 1st of July, and then he (plaintiff) would have some money. The defendant went to the plaintiff’s office again about the last week in June. The plaintiff was sitting in his office with the door open, and when he saw the defendant coming up the stairs he, the plaintiff, said, ‘I have no time to talk to you to-day.’ Defendant then went away, and never thereafter received any communication or visit from the plaintiff in reference to the premises in question until this action was about to be commenced. The referee further states that the plaintiff never tendered the $600 or any other sum to the defendant, nor is there any proof that he ever had any such sum; nor did the plaintiff ever make any effort to raise the,$600, or any other amount, and in fact he entirely abandoned the enterprise. From the last-mentioned interview in plaintiff’s office about the end of June, 1889, the plaintiff never called on defendant, never communicated with him in writing or otherwise, never visited the buildings, knew nothing of their condition except as he learned of them once or twice in chance meetings with third parties, and was not heard of until on the 1st of the following November, full four months afterwards, when, learning that the houses were nearly completed, plaintiff addressed a note on that date to defendant, asking that his one-half interest in the enterprise should be secured or adjusted in some way.</p> <p>“Returning to the first clause of the agreement, namely, that the plaintiff would advance and pay over to defendant the sum of $1,000 in cash, to be used by said defendant in the construction of said buildings, the plaintiff does not pretend that he advanced and paid over to the defendant that sum. His contention is that he was only to advance and pay over about $200 to start the enterprise, and that the remaining $800 was to be furnished to complete the buildings—to ‘clean up’—after the building loan had been exhausted. The referee cannot accede to such a construction of the terms of the agreement; it is not in conformity with a reasonable interpretation of the intention of the parties. It is the opinion of the referee that the whole sum of $1,000 was to be advanced and paid over at the beginning of the enterprise, and therefore the plaintiff failed to comply with the first stipulation of the agreement. The plaintiff testified that four several checks, dated February 1, 1889, for $75; the 6th of February, 1889, for $50; February 11, 1889, for $50; and February 20, 1889, for $25, were given for and by reason of said agreement, and he (plaintiff) stated in his testimony that these were all the moneys paid him (defendant) on the contract in question. Plaintiff afterwards, at the close of the testimony, did not claim to have paid on the agreement more than the sum of $156.82. While the plaintiff asserts his right to the clear one-half of the profits of the enterprise, and asserts that he has complied with all its stipulations, the referee has already decided against him on all these points, and will now proceed to discuss the alleged payments, amounting in all to $156.82.</p> <p>“ Whatever difficulty there may be in reaching a correct conclusion, whatever doubt may linger in the mind of the referee as to those particular payments, the same.is entirely the fault of the plaintiff. As already observed, the agreement was never reduced to writing,a most reasonable thing to be expected when an attorney was a party. Had he, the plaintiff, taken receipts, orders, bills, or any written acknowledgment, specifying that the said several checks were given in compliance with said agreement; had he opened the account in his account-book in conformity with said agreement; had he kept the moneys of the Charltons separate and apart, and signed the said checks as trustee or agent; had he kept a bank-account of his own private funds, and drawn these checks on the same; had he proved to the referee that a portion of the deposits were his own separate property; if he had made a memorandum that could reasonably be regarded as evidence against the defendant,—all or some of which, at least, as a methodical business man and as attorney of ability, (both of which he really is,) and a gentleman by no means indifferent to his own interests, (as he surely is not,) it might be expected he would do,— there would be no difficulty in deciding as to these particular checks. As it is, the referee is compelled, if not to grope in the dark, at least to balance the evidence on both sides, and give his decision where the weight is the heaviest. Both sides agree that the said sums were given by Tyng to Good, but Good swears that they were not given under the agreement, but that they were, with many others, given to pay claims against the Charltons, or to reimburse him for moneys paid out for them and for services rendered to them. While Good ceased to be the superintendent of the Charltons about December 1, 1888, and ceased to receive the four dollars a day, it is equally clear that Good, though engaged in building under the contract with Dettmer, was still rendering services to the Charltons in a variety of ways; keeping clean the Charlton buildings; advertising them for sale; directing the finishing of the carpenter work; going for mill-work; taking charge of car-loads of lumber and trim shipped to customers in Brooklyn; paying freight charges and hauling charges; getting measurements; serving notices now and then on parties; information from public officers; filing papers in Brooklyn court offices; and other services,—most all these done under direction of Tyng, as attorney and agent of the Charltons. These services continued up to the month of May, 1889, and, indeed, if reliance can be placed on hurried loose receipts in pencil for advertising, there is one as late as November. From December, 1888, which was a week after Good ceased to be superintendent, up to March, 1889, Tyng gave as manyas seventeen checks to Good, in sums ranging fiom .$700 to $25, all drawn by T. M. Tyng to ti. R. Good, and amounting in all to over $2,000. It is not disputed by plaintiff that thirteen of these checks were given defendant for and on account of Charlton’s business, and drawn on Charlton funds standing in the name of the plaintiff.</p> <p>“Now, as to the special checks. The plaintiff in his evidence in chief says that the check dated February 1st, for $75, was given in pursuance of the contract. * It was not given for any disbursement on account of the Charltons.’ On the contrary, Good distinctly specifies the Charlton disbursements for which this check was given, leaving a balance of $23.54 which Good claims for services. On examination of plaintiff’s account-book, defendant’s evidence is confirmed, for the said disbursements are these enumerated, and the following is written on the next immediate line, ‘ S. R. Good assumed by T. M. T. $23.54,’ written over an erasure. On the argument the plaintiff withdrew his charge of $75, and reduced it to $23.54. This check for $75 was drawn on Charlton funds for Charlton disbursements, and cannot in any sense be regarded as money paid under the agreement.</p> <p>“As to tile check dated February 8, 1889, for $50, plaintiff testifies as follows: • On February 6th, he (defendant) came to me and asked me for $50, to pay for expense of a permit to open the street and get the water in these buildings, and I gave him $50 on that date by the check which I now produce,’ (see page 8 of testimony.) The plaintiff with distinctness further testifies the same on page 31. On the other hand, defendant swears that the $50 was given for advertising Charlton houses, and he produces twenty-two receipts in small sums, amounting in all to over $50, for advertising Charlton houses. Though some of the dates are only to be guessed at, yet they are most all after February 6th. The following are the entries on defendant’s rough account-book, on page 44, * Charlton, Feby. 5, rec’d T. M. Tyng, $50;’ on opposite page, (45,) ‘Feby. 9, advertisement, $1.75;’ and (in lead-pencil) ‘ $49.92.’ On page 40 plaintiff says, • I told Mr. Good for him to keep an account of whatever advertising he did on these Charlton houses, and there were some other.items he kept an account of, but I have never had any reckoning about them.’ There was no offer to prove that plaintiff ever gave defendant any other check to pay for said advertising. The mind of the referee is not free from doubt, yet, as already said, it is the fault of the plaintiff, and the weight of the testimony is that the $50 was paid for advertising houses. The referee clearly inclines to the belief that the check was given by plaintiff on moneys he had standing in his own name, but belonging to the Charltons. Mr. Tyng testifies on page 9: ‘ I gave him $50 on Feb. 11th, to pay his architect on the buildings for the plans, by the check now produced.’ On cross-examination, page 31 and 32, ‘I can’t state exactly which one was to pay for the permits on opening the street to get the water, and the other was to pay the architect for drawing the plans. These checks, or either of them, were not given to Mr. Good for the purpose of paying freight charges of the Charltons, nor for any other purpose except what I have stated.’ This evidence of plaintiff is strengthened by the account-book of Good, which is herewith transcribed:</p> <p>Por 45. S. R. Good, McDonough and Ralph Ave.</p> <p>Peb’y 11. Reed. T. M. Tyng..............:........................................ 50</p> <p>“ “ Albert Sibley..................................................50</p> <p>For 44. Opposite.</p> <p>Peb’y 11. Water permits......................................................... 31 61</p> <p>Plans for McDonough..................................v.............:.; 50</p> <p>Wm. Hovey loaned................-.....................................-. 3 11</p> <p>Matthais & Kingsland............................'...................... 16</p> <p>Brock................................................................... 25 33</p> <p>“Defendant with equal positiveness swears that the check given him on February 11th was to pay Charles O. Seaman, a teamster, who had hauled, late in the fall or early in the winter, lumber and trim from two freight-cars at Palmer’s dock to Bee ve and Whalen’s buildings; that, while there had been different sums paid for hauling different loads to the various buildings that the Charltons supplied, yet these two car-loads of • stuff ’ had not been paid for; that Seaman had tried a number of times to get the money from Good, who had not got it from Tyng, and finally Good had promised the money to Seaman. Good says he got this check of February 11th, $50, to pay Seaman, but he did not pay the .identical money to Seaman; but on April 20th paid Seaman the amount due, $40, and on May 17th returned to Tyng the balance, $10. Good’s account-book has the following entries: ‘April 20th, Charles O. Seaman, for Charlton, $40.’ ‘May 17th, T. M. Tyng, $10.’ Mr. Tyng, the plaintiff, says on page 16, and again on page 40: ‘He [Good] gave me $10 once when I was in Brooklyn. I merely wanted $10, and he gave it to me out of his pocket, for which he is entitled to credit by any report that may be made.’ Mr. Tyng to some extent strengthens the statement of Good: ‘I think I told Mr. Good I knew he could pay that $40. I think it was for carting, and that he could charge it to me.’ Plaintiff did not point out any other check he gave the defendant in payment for this particular hauling of Seaman for two loads of stuff for Beeve and Whalen. Indeed, it may be fairly inferred that on page 283 plaintiff admits that on March 20, 1889, he charged, in an account to the Charltons, $40, not for freight, but hauling.</p> <p>“Defendant’s testimony is corroborated by Mr. Seaman that the $40 bad been due him for some time, and was finally paid, as promised, by Good; and Sibley testified that about the time Good commenced operations he came to him, and said he required some money to pay for his plans and the survey, and to pay diggers, and he (Sibley) having confidence in Good, ‘I made him advances amounting to $1,020 out of my own funds.’ The referee cannot but reiterate that the trouble and anxiety in deciding flows from the plaintiff’s fault; and on the 'whole the conclusion of the-referee is that this $50 was given by plaintiff to defendant to pay the hauling, and defendant applied the particular money to the uses and purposes connected with the buildings mentioned in the agreement. The referee decides that the said check, $50, February 11th, was drawn in money in the name of the plaintiff, but belonged to the Charltons. On page 9 plaintiff testifies: ‘ On the 22d of February the defendant came to me to get $25, for some other purpose connected with the building, and I gave him the check 1 now produce. This was given him in pursuance, of the contract.’ Good, on page 92, testifies: ‘I went to Mr. Tyng’s office one day, and told him. He wanted me to serve some papers around town. I went in, and said I was hard at work, and wanted some money, and he said, “How much do you want?” I said, “$25,” and he gave me that checkand on page 98 Good says * that $25 was given to me by Mr. Tyng for serving and car fare, and expenses, and running over time. It took me some time to serve these papers.’ In January he served a summons on Samuel McMillan that he (Good) says Tyng charged $10 for. • I knew I had a great time to get it, and was there some dozen times before I could get it. I cannot give the date. You have my sworn statement in your office when I served them;’ and he says, in answer to a question, that he had been performing services for Tyng prior to the receipt of the $25 check. ‘I filed all his papers in Brooklyn, fetched him information from records from time to time, served papers on different parties at different times, and was there nearly every day. ’ The referee cannot, from such contradictory statements, say with certainty one way or the other, but, all things considered, concludes that the weight of the testimony is in favor of defendant’s version. The referee does not hesitate to say that this check for $25, like the others, was drawn on moneys in the name of the plaintiff belonging to the Charltons.</p> <p>“Thus far the referee has treated of the four checks, which plaintiff says were all the moneys paid him in the contract in question. The plaintiff in his rebutting testimony swears that on February 13, 1889, he gave defendant a check for $40, to pay freight on two car-loads for Beeve and Whalen, and on the 16th February, 1889, Mr. Good came to him, and brought him a freight-bill amounting to $31.92, and ‘ the balance of that check, $8.28, Mr. Good asked me to charge up to him on McDonough-Street and Balnh-Avenue houses.’ The referee does not see any specific denial on the part of the defendant as to this $8.28, but this check of $40 was given by plaintiff to defendant for and on account of Charlton business, drawn on money standing in plaintiff’s name, but belonging to the Charltons. It will be observed that the referee in each instance decides that the checks were drawn on moneys belonging to the Charltons. There was not a particle of evidence offered in the case to show that the plaintiff had any money of his own. When he was applied to by the defendant for money under the agreement, according to his own testimony, he told defendant that when he wanted money, if he would let him (plaintiff) know a day or two in advance, he (plaintiff) would write up for some; ‘ write to Charlton to send me down more money.’ The referee may have been forced to decide adversely to plaintiff for reasons already assigned, and because the testimony of plaintiff in chief very widely differs from his cross-examination and his rebutting testimony, and because, while plaintiff’s testimony for the most part stands alone, the defendant is sustained by other interviews. The referee is further forced to say that, in his opinion, the plaintiff never attempted to carry- the agreement into effect. This was shown from the very beginning of the operation, for about the time of the digging of the cellars, when defendant consulted the plaintiff as to the purchase of the beams from the Charltons, the plaintiff told defendant that he (plaintiff) did not want the Charltons to know that he was connected with the thing, as he (plaintiff) might have to take an adverse position against the defendant. On the whole, the referee is of the opinion that the plaintiff has no cause of action, and he therefore directs judgment to be entered in favor of the defendant, dismissing the complaint herein on the merits, with costs.”</p> <p>From this judgment plaintiff appeals.</p>

Appeal' from circuit court, New York county. Action by Charles S. Hine against the New York Elevated Railroad Company. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial. For former report, see 7 N. Y. Supp. 464.

Action by Max S. Korn against the New York Elevated Railroad Company and the Manhattan Railway Company for damages to plaintiff’s property at the corner of Third avenue and Seventy-Second street, in the city of New ¡York, from the use of defendants’ elevated railroad on Third avenue, and to restrain such further use of the structure.- Defendants appeal from a judgment for plaintiff entered on trial by the court without a jury.

<p>1. Railways in Street—Right of Action of Abutting Owners.</p> <p>One who holds the legal title to real property, although another is a partner with him therein, may maintain an action in his own name, as the real party in interest, for injuries to the property from the construction and operation of an elevated rail-</p> <p>' road.</p> <p>2. Same—Contract for Sale.</p> <p>Neither does the fact that such holder of the legal title, after the commencement of such an action, and before the trial thereof, enters into a contract for the sale of a portion of the property, which is not performed at the time of the trial, deprive him of the right to recover as to such portion.</p> <p>3. Same—Evidence of Damages.</p> <p>In an action for an injunction against the maintenance and operation of an elevated railroad in the street in front of plaintiff’s property to the inj ury of his easements in the street, upon the question what defendants should pay in order to avoid the injunction to which plaintiff shows himself entitled, testimony is admissible as to the value of the property, including the easement in the street, which would give the property the use of the whole street above the surface.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by the Crooke Smelting & Refining Company against Catherine Towle and others. Plaintiff appeals from a judgment dismissing its complaint.</p>

Action by the mayor, etc., of the city of New York against Patrick B.eilly, William Kelly, and James Williams. The court directed a verdict in favor of plaintiffs, and ordered the exceptions heard in the first instance at general term.

<p>Executory Contracts—Performance.</p> <p>Plaintiff, in New York, telegraphed defendants in Savannah for price of rosin “f. o. b. my vessel at Savannah. ” Defendants telegraphed price; which plaintiff accepted by telegram, and wrote that his vessel would arrive “within the next 30 or 40 days. ” Defendants answered that the shipment was supposed to be immediate, but after correspondence accepted plaintiff’s terms. More than 40 days after plaintiff’s first telegram of acceptance his vessel arrived at Savannah, but defendants refused to deliver the rosin, claiming that the contract had expired. Held, that the contract was an executory one, and that, the time for its completion on the part of plaintiff having elapsed without his having his vessel at Savannah, defendants were absolved from performing their part of the contract.</p>

Two actions brought by the National Broadway Bank, in the city of New York, against Henry F. Hitch, impleaded with Humphrey H. Swift and Alfred Swift, as members of the firm of H. H. Swift & Co., to recover on a promissory note made by said firm. Defendant Hitch appeals from orders striking out his answer as frivolous.

<p>1. Pledge of Mortgage—Rights of Pledgee—Foreclosure.</p> <p>The owner of a bond and mortgage pledged as collateral security for a debt less than the face of the mortgage has no right to declare the principal of the mortgage due for default in payment of the taxes without the authority or concurrence of the pledgee, and he cannot sue to foreclose the mortgage.</p> <p>2. Costs—Extra Allowance—Dismissal of Foreclosure.</p> <p>Upon the dismissal of the complaint in foreclosure proceedings an extra allowance of §100 to the mortgagor is not excessive.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Edward H. Sentenne against Horace R. Kelly. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.</p>

At chambers. Mortgage foreclosure by Shepard and others against Whaley and others. A decree of foreclosure was rendered, and a referee appointed to conduct the sale. He advertised the premises to be sold at the real-estate exchange in New York city on July 8, 1890. On the day of sale the referee failed to put in an appearance, and the auctioneer, by direction of plaintiff’s attorney, postponed the sale to July 16, 1890.

Action by Frederick C. Linde and Franklin Rhodes against Hugh J. Grant, sheriff of the city and county of New York. There was a verdict for plaintiffs, and from the judgment entered thereon in their favor the defendant appeals.

Action by William T. Doyle, an infant, by John T. Doyle, his guardian ad litem, against the Manhattan Railway Company, for injuries to the person of plaintiff alleged to have been caused by negligence on the part of defendant. Such injuries were received from the same accident and under the same circumstances described in the ease of Weiler v. Railway Co., 6 H. Y. Supp. 320.

At chambers. Plaintiff, Burgoyne, had obtained a judgment in a district court of New York city against defendant, the Eastern & Western Bail way Company, an Ohio corporation. An execution against defendant was returned wholly unsatisfied, and plaintiff now moves for the appointment of a receiver. Plaintiff alleged that defendant had an office in New York city, but this was denied by defendant, who further alleged that it had no property in said city. Code Civil Proc.

<p>Appeal from special term, New York county.</p> <p>Action by Louis Strasburger and others against Nathan Bachrach to recover $2,361.24 for goods sold and delivered. Plaintiffs appeal from an order vacating an attachment on the papers on which the same was granted. The ground of the attachment, as stated in the warrant, was that “the defendant has assigned or disposed of his property with intent to defraud his creditors. ” ■ The affidavits upon which the attachment wás issued were as follows:</p> <p>“Alvin L. Strasburger, being duly sworn, deposes and says that he is a. member of the firm of Louis Strasburger & Co., composed of the above-named plaintiffs, who are copartners in business in the city of New York; that heretofore, and on the 2d day of September, 1890, the above-named plaintiffs sold and delivered to the above-named defendant certain goods, wares, and merchandise at the agreed price of two thousand three hundred and sixty-one and 24-100 ($2,861.24) dollars, which was the fair and reasonable value of said goods, and that the full sum of two thousand three hundred and sixty-one and 24-100 ($2,361.24) dollars is now due to the plaintiffs over and above all counter-claims and offsets known to deponent. Deponent avers that the above-named defendant has fraudulently disposed of his property, with intent to cheat and defraud the above-named plaintiffs and his creditors, and the grounds of his belief are as follows: At the time of the purchase by the defendant of the goods above mentioned, deponent, who had made the sale through the son of the defendant, Joseph Bachrach, who represented the defendant in said matter, and who was in business with him, gave deponent a statement to the effect that his stock was fully worth the sum of five thousand dollars, and that they had good outstanding collectible accounts valued at $8,000, making a total assets of $13,000, and that they did not owe in all for all purposes more than thirteen thousand dollars, and that the defendant, his father, was worth net the sum of $9,000 over and above all his debts and liabilities, according to their inventory of January 1, 1890. That in September, when these representations were made, he stated they owed even less than $4,000, and that the total liabilities would not exceed $2,300, which were all for business debts. That yesterday, December 11, 1890, judgments were entered in the supreme court against the above-named defendant, one in favor of Joseph Bachrach for the sum of $2,917.97, and another in favor of A. M. Bachrach for the sum of $1,715.01. That Joseph Bachrach is the son of defendant, and the one who made the representations to deponent. Deponent avers that these judgments are founded on fictitious claims, and that this is a scheme to dispose of the assets of the defendant for the purpose of cheating plaintiffs. That according to the representations of defendant his stock did not amount to more than about $5,000, and, if defendant is permitted to sell under the judgments above named, there will be no tangible assets to apply to the claim of the plaintiffs. Deponent therefore asks that a warrant of attachment issue against the property of defendant. No previous application for the relief asked for herein has been made. ”</p> <p>“Louis Strasburger, being duly sworn, deposes and says that he is one of the plaintiffs in the above-entitled action; that on Tuesday of this week he had a conversation with the above-named defendant in the presence of his son, (Joseph Bachrach,) deponent having called upon the defendant because he had heard that he was buying very heavily; when questioning the defendant as to whether it was so, said defendant claimed that he was not buying too heavily; that he was perfectly solvent; and that no creditor need be afraid, as they would be paid in full.”</p> <p>“Jacob Lorsch, being duly sworn, deposes and says that he is an attorney at law, and clerk in the office of Hays & Greenbaum, attorneys for the plaintiff in the above-entitled action. That he has examined the judgment roll entered December 11, 1890, in the cases of Joseph Bachrach v. Nathan Bachrach, of Abraham M. Bachrach v. Nathan Bachrach. That from an examination of the judgment roll entered in the case of Joseph Bachrach against Nathan Bachrach deponent states that the judgment is entered for the sum of $2,845 on two alleged causes of action; the first alleged cause of action being for money loaned April 1, 1890, amounting to $700; and the second alleged cause of action being for work, labor, and services in the management of defendant’s jewelry store at $100 a month, amounting to $2,625, performed for defendant since 1888, upon which said Joseph Bachrach claimed to have received $480. That said judgments are entered upon offer of judgment and acceptance of offer. That the judgment in the case of Abraham M. Bachrach against Nathan Bachrach is entered upon three alleged causes of action,—the first upon an account stated of August 15, 1889, for $212; the second for balance due for goods sold and delivered between September 19, 1889, and September 12,1890, amounting to the sum of $1,032.71;. the third alleged cause of action being for money loaned between May 23, 1889, and December 8,1890, amounting to $725, of which sum $310 was paid on account. That these judgments are entered in the supreme court, and that both judgments were entered on offers of acceptance.”</p> <p>“Jacob Lorsch, being duly sworn, deposes and says that he is an attorney at law, and a clerk in the office of Hays & Greenbaum, attorneys for the plaintiffs herein. That he has been informed by the deputy-sheriff who has charge of the executions against Nathan Bachrach that there is comparatively little property in the store; and that he was also informed by the said deputy-sheriff that there was not near enough property to satisfy the two executions, amounting to a little more than $4,500, under which he had levied upon the property of the said Bachrach.”</p>

Action by Thomas Cavanagh, as administra tor, etc., of Jane Lingard Bobinson, deceased, against the Ocean Steam Navigation Company, Limited, a foreign corporation, to recover damages for the death of said intestate.

The testator died at his home in Mount Kisco on the 3d of August, 1888, leaving him surviving, as his widow, Hester M. Ryder, and his daughter by a former wife, Sarah E. Hall, and the claimant, who is a daughter by his last wife. Mrs. Hall has been for many years residing away from home with her husband.

Action by John H. Yan Brunt and others against the town of Flatbush and others. There was a judgment for defendants, and plaintiffs appeal.

Action by the Syracuse Moulding Company against Squires. From a judgment in plaintiff’s favor defendant appeals. Laws 1ST. Y. 1881, c. 414, § 1, (4 Kev.

Action brought in justice’s court by Harding against Ellston for trespass on land. Defendant set up title in himself, and delivered to the justice the statutory undertaking. The latter refused to approve the undertaking, and retained jurisdiction. Judgment was rendered for plaintiff in defendant’s absence, and the latter appeals. Code Civil Proc. ÍT. Y. §§ 2951, 2952, are as follows: “Sec. 2951.

<p>Wills—Undue Influence—Presumption.</p> <p>Where an illiterate, intemperate, credulous old man, over 80 years of age, feeble both in body and mind, and easily controlled by others, makes a will while sojourning with a friend, by which he gives the bulk of his property to that friend and his wife, to the exclusion of a son and grandchildren, in whose favor he had made former wills, the burden is on the persons claiming under the last will to show that it was not procured by undue influence, and, failing this, its probate will be revoked.</p>

Action by Francis D. Dowley as receiver of the West Side Electric Light & Power Company against Louis Schiffer to recover upon a contract to supply electric lighting to plaintiff, and for the expense incurred in equipping his premises for such lighting purposes. There was judgment for defendant and plaintiff appeals.

Proceedings instituted by David Eamsay against David Wilkie to dispossess the latter from certain premises by reason of his non-payment of rent. From a final order in favor of plaintiff the defendant appeals.

<p>Costs—Bond on Obtaining Order or Arrest.</p> <p>Under Code Civil Proc. N. Y. § 559, regulating the terms of the undertaking required as a condition precedent to the granting of an order of arrest, the costs intended to be secured by the undertaking are not the costs of the action for which the defendant in the event of his success may recover judgment, but only such costs awarded to the defendant as accrue directly from the arrest, or in proceedings necessitated by the arrest.</p>

<p>Breach op Covenant—Merger.</p> <p>Defendant sold certain premises to plaintiff under a contract containing a covenant that the building was completed in compliance with the municipal laws. Before performance plaintiff ascertained that the drainage was defective -and in violation of law, but accepted a conveyance without expressly reserving her right to proceed against defendant upon his covenant. Held that, the agreement not being necessarily merged in the conveyance, the acceptance thereof by plaintiff raised no presumption that the covenant had been waived, and that, in the absence of proof showing an intention to make such waiver, plaintiff was entitled to recover the expense incurred by her in putting the drainage in proper condition.</p>

At chambers. . Action against defendant, executrix, etc., of Daniel J. Stock, deceased, for board and rooms alleged to have been furnished testator’s wife for a period of three yéars. Defendant answered that testator and his wife had lived separate and apart during all this time, according to an agreement by which testator was to furnish her specified sums for her support; that he had fulfilled his agreement; and that plaintiff had knowledge thereof.

At chambers. Bareither had recovered a judgment against Brosche for $256.78 in one of the district courts of New York city. Plaintiff’s attorney subsequently issued an execution out of the court of common pleas, a transcript of the judgment having first been duly docketed in the county clerk’s-office. This execution was in due form, except that it was not signed, indorsed, or issued by the county clerk.

Plaintiff, Graham, had the cause noticed for trial, and placed on the general -calendar. Defendant, the Stirling Insurance Company, now moves for a vacation of the order.

<p>Municipal Corporation—Grades and Salary of Policemen.</p> <p>Laws N. Y. 1887, c. 348, divided patrolmen into three grades. Those who had served three years and over were in the first class; those who had served one year, and less than three, were in the second grade; and those who had served less than one year were in the third grade. The revised charter of the city of Brooklyn (Laws N. Y. 1888, c. 583) provides (title 11, § 5) that patrolmen who have served three years shall be members of the first grade; that those who have served for less than three years and more than one year shall be in the second grade; and all others shall be in the third grade; and that, whenever any of the third grade shall have done service therein for one year he shall be advanced to the second grade; and whenever any of the second grade shall have done service therein for one year he shall be advanced to the first grade. By the act of revision the commissioners were not permitted to make any change in the existing laws. Held, that a patrolman appointed in May, 1887, became a member of the second grade on July 1, 1888, and of the first grade on July 1, 1889; and that, the act being mandatory, his acceptance of the salary of a lower grade was not a waiver of his right to recover the difference.</p>

Action by liobert L. Moores against H. B. Glover. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

The above cases, although not tried together, arose out of the same transaction, and present on this appeal substantially the same questions of law. The actions were brought on promissory notes made by the defendant, a foreign corporation, payable to its own order, indorsed by said defendant, and transferred before maturity to one James M. Beattie. The plaintiffs in all the cases, except in the Hoskinson Case, acquired them before maturity.

Action by Nathan A. Turner against Henry W. Putnam to recover commissions for procuring a sale of defendant’s real estate. Prom a judgment dismissing the complaint the plaintiff appeals.

Action by Eugene Higgins and others against William 0. Dewey. Defendant is a citizen of Massachusetts, and while in New York city was arrested at the instance of plaintiffs. Defendant moved that the order of arrest and the service thereof be set aside, for the reason that he had been inveigled by plaintiffs to come within the jurisdiction of the court. His motion was granted, and plaintiffs appeal.

Action by plaintiff, Chandler, against the Erie Bailroad Company, for coaling defendant’s ferry-boats. Defendant paid the sum alleged to be due into court, and obtained an order substituting as defendant the Erie Transfer Company, a New Jersey corporation, which claimed the money for the same services. A supplemental complaint was served on the substituted defendant, and leave given it to answer within six days.

Action by Henry B. Broyer against Jacob Ritter for commissions as a real-estate broker. There was a verdict and judgment in plaintiff’s favor, and defendant appeals.

Action by Theodore F. Schumann against John H. Davis. Plaintiff attached certain woolen goods alleged to belong to defendant, and obtained an order for their sale as perishable property. Defendant now moves to have this order set aside.

Action by Carl Gutman against Henry Rogers for insurance money paid defendant on property consigned to him for sale by plaintiff. Plaintiff’s complaint was dismissed, and he appeals.

Case submitted on agreed statement of facts. Action by Sophie Robinson against George H. Cornish. The agreed statement was to the following effect: Defendant is a licensed expressman doing business in New York city. On June 11, 1889, plaintiff: intrusted to defendant’s driver, David Thomas, a parcel for transportation. Before its delivery at the place of destination the parcel was stolen i rom defendant’s wagon, without connivance by defendant or his driver.

Action by Albert Waldheim, as administrator, etc., of Maria Wurster, deceased, against the John Hancock Life Insurance Company, on two policies of insurance issued in favor of plaintiff’s intestate on the life of Christian Wurster, her husband. Defendant’s demurrer to the complaint was sustained, and plaintiff appeals.

Appeal, from trial term. Action by Isaac Goldsmith against Valentine E. B. Cook for commissions as a real-estate broker. There was a verdict and judgment in plaintiff’s favor, and defendant appeals.

Action by Julia Aiken against the Massachusetts Benefit Association and Frey C. Leeson for $1,000 due on a certificate of membership issued to Daniel W. Leeson. The beneficiary named in the certificate was defendant Frey C. Leeson, wife of Daniel W., and the amount of the insurance was not to exceed $5,000. In his life-time, Daniel W. borrowed $350 from plaintiff, and assigned to her one-fifth of the certificate of membership.

Appeál from special term. Action by George W. Fuller, Jr., against David S. Tuska. From an interlocutory judgment entered on an order overruling a demurrer to the complaint the defendant appeals.

The complaint alleges the sale to defendants of gas fixtures and other merchandise, and also that plaintiffs rendered work, labor, and services to the defendants, in erecting and inserting the said fixtures, etc., in the defendants’ store, at No. 653 Broadway, for which the defendants promised to pay the sum of $197.68, and that defendants have not paid the same.

Mary A. Hall sued Thomas Canary. This action was brought to recover the sum of $548.46 for feed, etc., alleged to have been sold and delivered by plaintiff to the defendant between the 1st and 17th days of May, 1890.

<p>Appeal from special term.</p> <p>Matthew C. Grier and Ella D. George, executors, sued Hazard, Hazard & Co. From judgment for plaintiffs defendant appeals.</p>

William H. Schmohl sued Giuseppe Fusco and Angelo Adam. Fusco appealed from an order denying motion made for leave to serve a supplemental answer, pleading in a bar a judgment entered against the co-defendant of the appellant, upon the theory that such recovery against one of two persons jointly liable exonerates the other from liability.

‘ The plaintiff sues as assignee of Nathaniel Jarvis, Jr., to recover fees due the latter for services as referee in an equity action in the court of common pleas, wherein John G. Grotty (the defendant herein) was plaintiff, and one Robert S. Jarvis defendant.

<p>1. Injury to Passengers on Street-Car.</p> <p>In an action to recover damages for injuries sustained by plaintiff while a passenger on defendant’s horse-car, it appeared that the driver jumped off the car and the conductor ran towards the rear of the car, saying that he was not going to be killed, and that plaintiff, not knowing the cause of danger, followed him out, and was knocked off the rear platform as he was alighting. Held, that such facts, unexplained, proved a clear breach of duty on the part of defendant, affirmatively establishing negligence.</p> <p>3. Release—Validity.</p> <p>A release by plaintiff of a claim for damages for an injury received through defendant’s negligence, though obtained by fraud, is valid until disaffirmed by tendering back the consideration paid.</p> <p>8. Same—Attorney’s Lien.</p> <p>It is also effectual as against the attorney’s lien, where he has not conformed to the prescribed practice to protect his interest.</p>

At chambers. Action by George E Gervais against the Chicago, Rock Island & Pacific Railroad Company. Defendant demurrs to plaintiff's complaint on the ground that the court has not jurisdiction of the person of defendant.

<p>Appeal from trial term.</p> <p>John A. Gaylord and others sued John D. Karst, Jr. Defendants appeal from a judgment entered on verdict in favor of plaintiff.</p>

<p>Appeal from trial term.</p> <p>This action was brought by Adolph Van Praag and others to recover from the defendant, James A, Flack, sheriff of the city and county of New York, the sum of $350.63 upon a judgment recovered in this court by the plaintiffs against one Frederick Schurtz, on March 21, 1890, tipon which judgment and execution were issued and delivered on March 21,1890, to the defendant, then sheriff of said city and county, against the property of said Schurtz, directing said sheriff to satisfy the said judgmentoutof the personal property of said Schurtz, etc., and to return said execution-to the clerk of this court within 60 days after the receipt thereof by said sheriff, upon the ground that the said sheriff had failed to return the execution within 60 days, as required therein. Upon the trial the following facts were admitted: The recovery of the judgment, as above stated, and that an execution was issued thereon and delivered to the defendant on March 21, 1890, for the sum of $350.63. The defendant in his answer admits that more than 60 days have elapsed since the delivery of the execution to him; and, as a further and separate defense, alleges that he delivered said execution to one of his general deputies, and, in substance, further alleges that his said deputy made a levy, and that the attorney for the plaintiffs therein instructed said deputy to collect said judgment in monthly installments of $50 each, and to hold said execution until the whole amount thereof was collected in full. The action was brought before Justice GiegeRiCH and a jury, on the 9th day of December, 1890. Evidence was given con the'part of the plaintiffs, and also the defendant, as to the quantity and nature of the property in the possession of Schurtz, the defendant in said judgment, at the date of the delivery of the execution to the sheriff; and also as to the facts whether or not the attorney for the plaintiffs who issued the execution had directed or authorized the deputy to hold said execution that had been delivered, and to collect the same in installments, and to hold and not return the same within the 60 days as required by said execution. After the testimony had been closed on each side, it was submitted to the jury under the charge of the trial justice, and the jury rendered their verdict in favor of the plaintiffs for the sum of $361.88, the amount of the judgment and interest. A motion was made by the attorney of the defendant to have the verdict set aside, upon the ground that it was against the weight of evidence and the law, and for a new trial, which motion was denied, and an order was entered denying said motion, from which judgment and order defendant appeals.</p>

<p>1. Assignment fob Benefit of Creditors—Preferences.</p> <p>An. assignment for the benefit of creditors is not invalid because it makes an excessive preference, under Laws N. Y. 1887, c. 503, § 30, which provides that, in genera) assignments, any preference created therein “shall not be valid except to the amount of one-third in value of the assigned estate left after deducting * * * the costs and expenses of executing the trust; ” such preferences being invalid only as to the excess.</p> <p>8. Grounds for Attachment.</p> <p>Such an assignment gives no ground for attachment against the assigning debt- or’s property.</p>

<p>Appeal from special term.</p> <p>Amelia Gregory sued August Fichtner, as executor, etc., of Herman Schwannecke, deceased, for conversion. From a judgment for plaintiff, defendant appeals.</p>

<p>Damages—Breach of Contract.</p> <p>Under a contract of affreightment for transportation by plaintiff’s boat, defendants agreed to pay “all wharfage at place of consignment. ” A bill for such wharf-age having been presented to plaintiff, he notified defendants, who promised to pay it. Afterwards the boat was seized by the United States marshal in procedings in rem for such wharfage, and plaintiff notified defendants, who said they would release it. After waiting 10 days, plaintiff paid the wharfage and expenses, and sued defendants to recover such sums, as well as $100 for the loss of the use of the boat. Held, that plaintiff was justified in relying upon defendants’ promises, and the damages claimed were not too remote.</p>

<p>Appeal from special term.</p>

Mary J. Rosevelt sued the Manhattan Railway Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Mary Powers, individually and as executrix, sued the Manhattan Railway Company. From a judgment entered on a verdict and an order denying motion for new trial, defendant appeals.

„ James Renwick sued the New York Elevated Railroad Company et al. Defendants appeal from an order denying a motion made by them that the case on appeal herein should not be resettled in certain specified particulars.

<p>Andrew W. Sohelling sued Cord BischofE and another. From judgment entered upon findings and conclusions defendant BischofE appeals.</p>

<p>Undertaking on Arrest—Liabilities.</p> <p>Code Civil Proc. N. Y. § 559, providing for an undertaking with sureties to procure an order of arrest “that if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding” the sum of §250, means that “all costs” and “all damages” shall betaken in conjunction; and, where costs have been paid to the extent of the sum specified in the undertaking, the sureties are not further liable for damages.</p>

• Daniel W. Tallmadge and another sued Phineas O. Lounsbury, as treasurer of respondent, the Republican League of the United States. Judgment was rendered against plaintiff, who appealed from order denying motion to vacate a judgment against him. For former report, see 10 2T. Y. Supp. 129.

<p>Appeal from trial term.</p> <p>Charles H. Traitteur sued James Levingston. Defendant appealed from an order setting aside a dismissal of complaint.</p>

The action was brought to recover the amount paid defendant for 15 shares of stock of the Stead Boiler Company, which plaintiff claims he was induced to purchase by the false and fraudulent statements of defendant, upon which he relied.

Action by John Phillips against Frank H. Arguimban. The action was brought to recover damages for an alleged breach of a written contract for the sale of 3,000 boxes of raisins by plaintiff to defendant; the breach alleged being the refusal of defendant to accept the raisins, and pay for them in cash.

The action was brought to recover on three promissory notes made by the defendant to the order of one H. A. Parr, and by said Parr-indorsed and delivered after maturity to the plaintiff. The answer set up as a,-defense-that the notes were obtained by said Parr from the defendant by means of certain false and fraudulent representations.

Peter Kearney sued the Metropolitan Elevated Bail way Company and another. From judgment for the plaintiff the railway company appeals.

Eli Hyman sued the Boston Chair Manufacturing Company. The action was brought to recover damages for the breach of a covenant for the quiet and peaceful enjoyment of certain premises leased by the defendant to the plaintiff. The answer was a general denial. From a judgment entered on the verdict of a jury, and from an order denying a motion for a new trialy plaintiff appeals. For former report, see 11 N. Y. Supp. 52.

The action was brought by George Herold to restrain the maintenance by the Metropolitan Elevated Railway Company of its elevated railroad and station in front of plaintiff’s premises, No. 2161 Second avenue, in the city of New York, and to recover damages for past maintenance and operation. Judgment for plaintiff, and defendant appeals.

■ Appeal from special term. Artemus H. Holmes and others sued George S. Evans and others. Plaintiffs appeal from an order denying a motion made by them to open and vacate the report and findings of the referee herein, and to take the testimony of another witness, and to direct the referee to proceed herein as if ins said report had not been delivered.

Exceptions from jury term. Charles R. Johnson sued the Union Switch & Signal Company. The complaint was dismissed, and exceptions ordered to be heard at general term.

Artemas H. Holmes and another sued George S. Evans and another, to recover shares of stock claimed to be due from defendants for services as attorneys. Judgment entered upon the report of a referee. Plaintiffs appeal.

Loring R. Millen and another sued John C. Fogg and another. Defendants appealed from an order of reference, granted on the ground that the trial of the action would involve the taking of a long account.

<p>Appeal—Weight op Evidence.</p> <p>Where the evidence is conflicting, and no errors were made in receiving or excluding evidence, the judgment will be affirmed.</p>

The defendant’s firm, Parsons & Loud, shipping and commission merchants, procured a charter for the bark Elliot Ritchie, and made advances to her on the master’s draft, and, writing her owners to that effect, received in reply a letter asking them to “get the advances insured, if you have not already done so, so that in case of loss you will not call upon the owners for the advances.” At that time Parsons & Loud were carrying an open policy of insurance with plaintiff,…

Action by Pietro Altieri against Dorr Lyon to foreclose a mechanic’s lien. The premises were originally owned by Lyon, who gave a building loan mortgage thereon to secure a loan by the Equitable Life Insurance Company. Subsequently Lyon sold the premises to Smith under an agreement whereby Smith assumed the mortgage and agreed to erect buildings on the premises, and gave a purchase-money mortgage and a note to secure the performance of his agreement to build.

<p>1. Accident Insubance— Due Diligence—Question fob Juby.</p> <p>In an action on an accident insurance policy it appeared that the insured, while crossing railroad tracks in going to the station, when part way over had his view obstructed of the further track, and, as he was approaching it, was called to by an ’ employe of the railroad company to “look out for the express, ” and was shouted to by others, and, hastening forward, was killed by the express train. Held, that the question whether he had used “ all due diligence for personal protection, ” as required by the policy, was for the jury.</p> <p>2. Same—Voluntaby Exposube.</p> <p>An act is not voluntary, within the terms of the policy, excepting .loss “from voluntary exposure to unnecessary danger, ” if it is such as a man of ordinary, prudence would be induced to do by the circumstances.</p> <p>8. Same.</p> <p>The meaning of the word “accidental, ” as used in the policy, is for the jury. ■</p> <p>4. Same.</p> <p>The mere crossing of railroad tracks for the purpose of reaching the railroad station is not within the exception in the policy of the hazard “ of standing or walking on the road-bed or bridge of any railway. ”</p> <p>5. Same—Violation of Rules of Railboad.</p> <p>Under the defense that deceased was killed “while or in consequence of violating the law or the rules of a company” within an exception in the policy, it may be shown that there was a custom of crossing the tracks at the place in question to reach the station.</p> <p>6. Same.</p> <p>The charge “that, if the jury find that plaintiff’s assignor was passing the crossing in question upon an express or implied invitation or inducement of the railroad company, or by its permission, he was rightfully there, ” is not erroneous where it appears from the rest of the charge that it was meant “rightfully” as regarded the railroad company.</p>

<p>1. Railroads in Street—Injury to Rental Value—Evidence.</p> <p>A finding of damages for the lessening of the rental value of plaintiff’s premises, by the erection of an elevated road, is not sustained, in the absence of proof of the difference in rentals before and after construction of the road, by proof of such difference in the case of houses of different sizes on other streets, the rent of which at the times in question was not as great as that of the house in suit.</p> <p>3. Same.</p> <p>Testimony of a real-estate expert, showing a continual advance in the selling price of neighboring property, and no diminution in value, will not sustain a finding as to the lessening in value by the taking of plaintiff’s easements of light, air, and access.</p>

James P. Keruochan and others sued the New York Elevated Railroad Company and others. Defendants appealed from a judgment entered upon • conclusion and finding made by judge at special term.

Dennis W. Moran sued George Conoma and others to foreclose a mortgage, and an appeal was taken from an order made at the special term granting the plaintiff’s motion to compel Mayer Loeb and Simon Loeb, appellants, as purchasers of- certain,mortgaged premises described in the decree of foreclosure- and sale herein, to comply with thé referee’s terms of sale, and complete their' said purchase.

The- American Bank-Note Company sued the New York Elevated Bail road ■Company and others for damages to its easement by the operation of the road. Judgment for plaintiff, and defendants appeal.

Action by Josiah J. White, a bondholder of the Chattaroi Railway Company, against George C. Wood, Samuel D. D. Davis, Jerry Collins, and An-son Maltby, as a purchasing and organizing committee. Defendants appeal from a judgment enjoining and restraining them from collecting or receiving a note of $56,800, and awarding costs and extra allowance to plaintiff against defendants in the sum of $440.22.

Action by Anna Maria Hoch and others, individually and as executrices and trustees under the will of John C. Hoch, deceased, against the Manhattan Railway Company and the Metropolitan Elevated Bailway Company. Defendants appeal from a judgment for plaintiffs entered on trial by the court without a jury.

Action by Magdalena Rollwagen against Arthur C. Rollwagen, Florence M. Rollwagen, and Emily S. Rollwagen. Plaintiff appeals from a judgment for defendants entered on the dismissal of the complaint at the trial by the court without a jury.

, on the 10th October, 1890, disbanding Company I of the twenty-second regiment of the National Guard. For report of a former application made at special term, and denied without prejudice to the right to renew at general term, see ante, 186.

Action by John Wheeler, as assignee for benefit of creditors of Orlando M. Bogart, Bichard W. Bogart, and Alanson M. Wilcox, against Theodore Timpson. Defendant appeals from a judgment for plaintiff entered on trial by a referee.

Action by Walter B. Hatcii against Sarah C. Spooner, Ebenezer Spooner, and Edward A. Spooner. At the trial the complaint was dismissed as to the defendant Sarah 0. Spooner, and the jury found a verdict for plaintiff against the other defendants. Prom the judgment for plaintiff entered on the verdict, and from an order denying their motion for a new trial, said defendants Ebenezer Spooner and Edward A. Spooner appeal.

Action by Frederick B. Gurney, as administrator of Launcelot S. Gurney, deceased, against the Grand Trunk Bailway of Canada. Defendant appeals from an interlocutory judgment overruling its demurrer to the complaint. Code Civil Proc.

Exceptions from circuit court, New York county. Action by Henry 0. Howell, as administrator of Sallie A. Howell, deceased, against Allen G. Newman, as executor and trustee under the will of Thomas Gardner, deceased, and others. At the trial the complaint was dismissed on the pleadings, and plaintiff’s exceptions were ordered to be heard in the first instance at the general term.

Appeals from circuit court, New York county. Action by Lorenz Beich against Alice S. McCrea. Both parties appeal from a judgment for plaintiff entered on a verdict directed by the court.

<p>1. Highways—Dedication—Eight oe Way.</p> <p>W. devised land to S. and J., which was divided by a lane situated wholly on the land given to S. According to the devise to J. his land was 10 feet east of the lane, but the evidence showed that W. had in his life-time widened the lane to make it come up to J.’s line. S. subsequently fenced in the lane on both sides, but after-wards removed the fences, and widened it to 60 feet by survey, making it extend not up to, but within a few feet of, J.’s line. W. and J. and S. for over 50 years used the road to gain access to J.’s land, and S., who laid it out, advised persons to buy land from J., to which they would have had no access if the strip remained between the land and the road. Afterwards the devisees of S. built a fence on the line of the survey, shutting off J.’s land from the road. Held, that the road was dedicated up to J.’s line.</p> <p>2. Same—Title by Prescription.</p> <p>J., and those claiming under him, had a right of way by prescription to their land through the road.</p>

Action by George Gorton, as administrator, against the United States & Brazil Mail Steam-Ship Company and George P. Morris for damages for the death of plaintiff’s intestate, alleged to have been caused by neglect of defendants. The jury found a verdict for plaintiff for six cents damages. Defendants appeal from an order allowing the taxation of full costs by plaintiff. Code Civil Proc.

Motion by the J. F. Pease Furnace Company for the removal from the city court of New York to the supreme court of an action brought in the city court by Michael W. Devine against said J. F. Pease Furnace Company, forth e purpose of changing the place of trial to the county of Onondaga. Said defendant appeals from an order denying its motion. Code Civil Proc.

Action by George C. Winchester against T. Quincy Browne. Defendant appeals from an order denying his motion to dismiss the action on the ground that.the court should no longer entertain jurisdiction thereof. For former reports, see 7 N. Y. Supp. 550; 11 N. Y. Supp. 614.

Action by Jennie Fogal against J. Seaver Page and others, as executors of Thomas Page, deceased. Defendants appeal from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial. Code Civil Proc. Ñ.

Action by William W. Ryan against the Burger & Hower Brewing Company, Limited. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Claim by Benjamin Blankman against the estate of Alfred G-. McQueen, deceased, presented to John McQueen, as administrator of said estate, and referred under Rev. St. H. Y. pt. 2, c. 6, art. 2, § 36, providing for. the reference of any claim so presented, “if the executor or administrator doubt the justice” of the claim.

Application by Solomon Sayles for a peremptory mandamus to compel Frank T. Fitzgerald, register of the city and county of New York, to receive certain satisfactions of mortgages, and to discharge and cancel of record the mortgages therein mentioned. The relator appeals from an order denying his application.

<p>1. Appealable Order—Affidavit on Attachment—Sufficiency;</p> <p>The provision of Code Civil Froc. N. Y. § 636, that to entitle a plaintiff to a warrant of attachment “he must show by affidavit, to the satisfaction of the judge, ” the requisite jurisdictional facts, does not make the determination of the sufficiency of the allegations of those facts a matter of discretion, so that it is not reviewable on appeal.</p> <p>8. Attachment—Affidavit.</p> <p>An affidavit to obtain a warrant of attachment, on the ground that defendant is not a resident of the state, which is positive as to such non-residence, is sufficient in that respect, although defendant’s place of residence outside the state is stated on information and belief, and the sources of information and grounds of belief are not given. » •</p> <p>3. Same—Dissolution.</p> <p>A motion to vacate an attachment, in an action for the price of goods sold on credit, cannot be granted on the ground that the term of credit has not expired, where that fact is not shown affirmatively. No presumption can be indulged that the credit has not expired.</p>

Action by the Hub Publishing Company against Charles A. Richardson and John A. Robinson. The summons was not served on the defendant Robinson, and he did not appear or answer, and the action proceeded against the defendant Richardson alone. He appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

<p>1. Wills—Construction—Residuary Estate.</p> <p>A will provided for testator’s widow during her life, with a direction that the property invested for her benefit during her life should, at her death, form part of the residuary estate. Provision was then made for the application to the benefit of testator’s son S. of a certain sum per annum, so much of the estate as necessary to be invested to raise that sum; which provision should be accepted by S. “in full satisfaction of all interest he may at any time have in my estate, either as my heir, or next of kin, or otherwise; it being my wish that under no circumstances shall he take or have any other share or interest therein than that which is given by this clause of my will. ” Testator then directed that, “ after the satisfaction of the provisions hereinbefore made for my wife and son S., my executors shall divide the residue of my estate into eight equal parts; ” and he gave two of said parts to his son G-. absolutely, and the remaining six parts, in separate shares, in trust for his daughters, respectively, during the life of each? and at her death to her issue, or, if no such issue, then to testator’s remaining children and their issue, excluding and excepting S. from any share or part therein. Meld that, although the provision for the benefit of S. contained no direction that, after the death of S., the sum to be invested for him should become part of the residuary estate, the will showed .that testator intended completely to dispose of his estate, and that the fund for the benefit of S. was to be disposed of, after his death, as part of the residuary estate.</p> <p>3. Same—Perpetuities.</p> <p>Out of the separate part of the residuary estate devoted to the creation of a trust for the benefit of one of testator’s daughters an annuity to her husband was provided for, payable to him during his life. Held, that as to the part of the estate to he applied to the benefit of testator’s son S. during his life, if thereafter included in the residuary estate, there was no suspension of the power of alienation beyond the statutory limit of two lives in being at the death of the testator; the interest of the husband of such daughter after her death being only that of an annuitant, which he was empowered at any time to extinguish or release.</p>

Action by Sarah Uransky against the Dry-Dock, East Broadway & Battery Bailroad Company. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Henry O. Gilbert against Leonard G. Quinlan. Defendant appeals from a judgmentfor plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Catharine McIntyre against the German Savings Bank and others. Plaintiff appeals from part of an order, which stayed, until the entry of final judgment, the collection of costs granted to her by an order of the general term affirming an order of the special term denying a motion by defendants for a new trial, and which vacated an execution issued for the collection of-such costs.

<p>Revival of Action—Discretion of Court—Laches.</p> <p>After a proceeding to vacate or reduce an assessment on real property had been commenced by the owner, he paid the assessment, and sold and conveyed the property. He died soon afterwards, and, more than 11 years after payment of the assessment, his executors made application to revive the proceeding, but an order reviving it was reversed by the general term on appeal. Held, that the delay was a sufficient reason for refusing, as a mere matter of discretion, to permit the revival, and a motion for reargument of the appeal should be denied.</p>

Sertiorari to review the action of the board of the city record of the city of New York in removing relator, Joseph 0. Higgins, from bis office of clerk in the office of the city record. A copy of charges against relator was served upon him, with notice that an opportunity to make an explanation in regard to them, before the board, would be given him at a certain hour the next day.

Proceedings on the relation of Patrick Kelly to review the action of respondents in dismissing relator from the police force upon a charge of being so much under the influence of liquor as t.o be unfit to perform police duty.

Action by Frank Work, William E. Strong, George Wood, and Frank K. Sturgis againstMiles Beach. Defendant and one Marston had a joint account with plaintiffs, who were stock-brokers, arising out of purchases of stocks for them by plaintiffs, and defendant had also an individual account with plaintiffs of the same nature.

Action by Josephine F. Clason against Elizabeth S. Baldwin to recover possession of certain real property. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial. See former decision, 9 H. Y. Supp. 609. Code Civil Proc.

. Action by Christian H. Schultheis against Thomas McInerny and others. The only defendants who appeared in the action were the Lorillard Brick-Works Company, Georgiana F. Webster, and William B. Albertson. On trial of the action before a referee the plaintiff and the defendants named each proposed separate findings of fact and conclusions of law, and submitted them to the referee.

Proceedings on the relation of Francis H. McGowan, to .review the proceedings of the pólice commissioners in dismissing the relator from the police force.

Action by Charles T. Barney and Helen T. Barney against John M. King, Frances Webster, and others, brought to foreclose two mortgages, dated Feb- ‘ ruarv 26, 1889. Defendant Webster appeals from order striking out her answer as sham and frivolous.

Action by William Hagadorn against the village of Edgewater. Defendant appeals from a judgment for plaintiff, entered on an order striking out the answer as frivolous, and from said order. Code Civil Proc. N. Y. § 500, provides: “The answer of the defendant must contain: (1) A general and specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. ”

<p>Appeal from special term.</p>

Action by the First National Bank of Jersey City against Frederic B. Bard,' individually and as assignee of the firm of Clarke, Radcliffe & Co. and others, judgment creditors of said firm, and also the partners composing the firm.

Action by John Hayes, as receiver of premises Nos. 62, 64, West Fifty-Fifth street, New York city, against Mrs. William Beard. Plaintiff appeals from an order vacating an order of arrest against defendant.

<p>Fobeclosuee op Mobtgage—Rights of Second Mobtgagee.</p> <p>In an action to forclose a first mortgage, it was stipulated by the various parties interested that, instead of selling sufficient of the property only to satisfy the first mortgage, the entire premises should be sold in different parcels, so as to realize sufficient to pay the second mortgage and any other liens that might exist. Owing to the refusal of some of the bidders to complete their purchase, the amount realized by the sale was insufficient to pay the whole amount due on the second mortgage. Held, that the holder of such second mortgage was not estopped by reason of such stipulation from bringing an action to foreclose his mortgage for the balance due thereon, and that he was not bound to proceed in the former suit in which he was a defendant to compel the bidders to complete their purchase; that duty devolved either upon the first mortgagee or the owner of the equity of redemption.</p>

Action by Robert G. Bushnell against Parker Bros. & Co., Limited. Plaintiff appeals from an order denying his motion to vacate an order of removal of the cause into the circuit court of the United States.

Action by Edwin Weltin 'against the Union Marine Insurance Company, Limited, to recover on a contract of marine insurance made by defendant with one Staenglen, to cover the latter's interest in a cargo of cotton to be shipped from Galveston, Tex., to Cronstadt, Russia. A portion of the cargo was damaged by fire and water at Cronstadt. The interest of the assured was assigned to plaintiff.

Action by Margaretta Meyer Paul against William H. Williams and Thomas K. Egbert, as trustees under the will of Christopher Meyer, deceased. From a judgment dismissing her complaint the plaintiff appeals.

Exceptions from circuit court, New York county. Action by Nathaniel Jarvis, Jr., against Sarah Lynch. On the trial, at the conclusion of plaintiff’s case, a motion by defendant to dismiss the complaint was granted, and plaintiff’s exceptions were ordered to be heard in the first instance at the general term.

Claim by Sarah J. Pandjiris against the estate of Alfred Gr. McQueen, deceased, presented to John McQueen, as administrator of said estate, and referred under Kev. St. pt. 2, c. 6, tit. 3, art. 2, § 36, providing for the reference of any claim so presented, “if the executor or'administrator doubt the justice” of the claim.

At chambers. Action by Caroline Livingston against the New York Elevated Railroad Company and the Manhattan Railway Company. There was a judgment in plaintiff’s favor. On the last day on which notice of appeal could seasonably be served,—J une 7, 1890,—a clerk of defendants’ attorneys served the notice of appeal at about 3 P. m., by dropping it through a letter-slot in the door of the office of plaintiff’s attorney.

At chambers. Action by Favilla against Moretti for breach of the conditions on a sale of a restaurant. Defendant answered, and now moves for judgment for want of a reply.

ti Action by George Munro against Ormund G. Smith, George 0. Smith, and Cora A. Smith. On trial by the court without a jury the complaint was dismissed, with costs and an extra allowance to defendants. Plaintiff appeals from the judgment for defendants entered thereon. For former reports, see 2 Y. Y. Supp. 313; 6 Y. Y. Supp. 426; 7 Y. Y. Supp. 947; 8 Y. Y. Supp. 671; and 11 Y. Y. Supp. 940.

Exceptions from circuit court, New York county. Action by Frank W. Miller against the Union Switch & Signal Company, At the trial, the court directed a verdict for plaintiff, and ordered defendant’s exceptions to be heard in the first instance at the general term. For former reports, see 9 N. Y. Supp. 655, 659.

Action by Louisa Williams,-Helen Gibson Ward, and Clara A. Helm against Samuel D. Folsom, Thomas W. Folsom, and William H. Folsom. Defendants appeal from an order denying their motion for a bill of particulars of matters alleged in the complaint. For former litigation, see 3 H. Y. Supp. 681; 5 H. Y. Supp. 211; 7 H. Y. Supp. 568; and 10 H. Y. Supp. 895.'

<p>Costs—Extra Allowance.</p> <p>Where the complaint in an action of ouster demands that each of the alleged usurpers pay the fine of $3,000 imposed under Code Civil Proc. N. Y. § 1956, there-is a basis for an extra allowance under Code, § 3353, subd. 3, giving the court power to grant an allowance, not exceeding 5 per cent., upon the sum recovered “or claimed. ”</p>

<p>1. Religious Societies —Removal of Trustees. .</p> <p>A judgment of ouster, removing seven of ten trustees of a religious corporation, upon the ground that they were wrongfully declared elected at an annual election, after they had accepted and exercised the duties of the office, and claimed title thereto under such election, does not invalidate the title of the remaining three trustees.</p> <p>2. Same—Omission to Elect.</p> <p>Such judgment of ouster does not establish an “omission or neglect to choose any of the trustees ” within the meaning of Laws N. Y. 1844, c. 158, § 3, so as to entitle the old trustees to hold over until others be chosen in their stead.</p> <p>3. Same—Holding Over of Predecessors.</p> <p>The full number of trustees having been voted for at such election, those declared elected became the “successors” of the members of the old board who went out of office, and the old board were not entitled to hold over, although a majority of the “successors” were afterwards ousted or removed.</p> <p>4. Same—Creation of Vacancies.</p> <p>Such judgment of ouster merely creates “ vacancies ” within the meaning of Laws 1813, c. 60, § 1, providing that, “whenever any vacancy shall happen by death or otherwise, the said trustees shall appoint a time for holding an election to supply such vacancy. ”</p>

Action byFranzisea Harris against the Mutual Life Insurance Company of New York and others. Defendant company appeals from order denying motion to vacate order allowing plaintiff to maintain the action as a poor person.

<p>1. Partnership—Dissolution—Use op Firm Name.</p> <p>A partnership carried on by “M. R. ” and “A. S. R.’’was dissolved under an agreement which, inter alla, transferred to the former the absolute and exclusive privilege of doing business under the firm name of “The R. & R. Chemical Works. ” Held, that the fact that the firm name in its two initial letters was identical with the initial letters of the surnames of the two partners did not render the agreement a violation of Pen. Code N. Y. § 363, forbidding any person from using in his business the name as partner of one not interested with him as partner, or using the designation “and company” or “& Co., ” when no actual partner or partners are represented thereby, where the firm name was made to follow the name of “M. R. ” as “ sole proprietor. ”</p> <p>2. Same—Consideration.</p> <p>The agreement containing mutual covenants, the objection that the transfer of the exclusive right to use the firm name was without consideration could not be sustained.</p> <p>3. Same—Protection in Use.</p> <p>. The right of M. R. to be protected in the unmolested use of the firm name was</p> <p>’ not affected by the fact that he was not personally engaged in the manufacture of the articles in which he dealt.</p> <p>4> Same.</p> <p>. Nor by the fact that he had invaded territory secured by the agreement for the exclusive custom of his former partner.</p>

Action by Alexander T. Compton against The Chelsea, a corporation. Plaintiff appeals from a judgment for defendant entered on a verdict directed by the court, and from an order denying a motion for a new trial. See former decision, 8 N. Y. Supp. 622.

Action by Gustav Schnaier and Theophilus Millot against Konrad Schmidt and Henry Lehrburger to recover $1,282.60, the alleged value of certain colored inks which the firm of G. Schnaier & Co. claim to have sold and delivered to the defendants,' who composed the firm of IC. Schmidt & Co. • The firm of’ G. Schnaier & Co., at the time of the commencement of the action, was composed of Gustav Schnaier, Theophilus Millot, and IConrad Schmidt, and the • firm of IC.

Action by Leonard Schepp against Lewis E. Manley and the Samuel Crump Label Company. Defendants appeal from a judgment for plaintiff entered on trial by the court without a jury.

This is an appeal by defendants in preceding action from an order refusing their motion for an order amending the judgment or postea at the end of the judgment by inserting the name of Konrad Schmidt as one of the plaintiffs.

Action by Morris A. Brokman against Lewis Myers. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

■ Appeals from a judgment entered on the report of a referee, and from an order of the special term. Action by William B. Zabriskie against the Central Vermont Railroad Company. Plaintiff appeals from a judgment for defendant entered on trial before a referee, and from an order granting defendant an allowance in addition to costs.

Exceptions from circuit court, New York county. Action by Julien T. Davies, as receiver of the firm of Grant & Ward, against the New York Concert Company, Limited. At the trial, the court directed a verdict for plaintiff, and ordered defendant’s exceptions to be heard in the first instance at the general term. For former report, see 4 N. Y. Supp. 373.

Action by Mary G. Fairfield against John H. Feagles. There was a verdict for defendant, and from the judgment entered thereon plaintiff appeals.

Action by the National Broadway Bank of the city of New York against the Wessell Metal Company, ICarrick Biggs, and George W. Yan Siclen, as receiver of the Wessell Metal Company. Plaintiff appeals from a judgment for defendant dismissing the complaint, entered on trial by the court without a jury. Bev.

Action by the mayor, aldermen, and commonalty of the city of New York against the commissioners of emigration. Plaintiffs appeal from an interlocutory judgment sustaining defendants’ demurrer to the complaint herein.

Action by the Hong ICong & Shanghai Banking Corporation against Albert A. Meyer and Joseph M. Emanuel and others. Defendant Emanuel appeals from a judgment for plaintiff entered on the'verdict of a jury, and from an order denying a motion for a new trial.

Action by Mary Fowler against the Metropolitan Life Insurance Company.

Action by Frederick J. Prentiss against George H. H. Butler, impleaded with others. Plaintiff appeals from an order vacating an attachment against defendant Butler on the ground of his alleged non-residence.

Action by John H. Hollender against Henry 0. Hall. Defendant left New York state, went to Mantanzas, Cuba, and there established his residence, and engaged in mercantile business, in 1853, and continued in that business until 1864. After that he was in the consular service of the United States until March, 1889, and then he went to Managua, in Nicaragua, as resident agent of a maritime canal company, and still holds that position.

Action by Mannion against the Broadway & Seventh-Avenue Railroad Company for personal injuries. On the the trial before a jury, the court granted a nonsuit at close of plaintiff’s case for failure to prove negligence by defendant.

Action by Eliza L. Winton against Walter IST. Winton for divorce. Plaintiff moves to set off unpaid alimony against costs awarded to defendant.

Appeals from special term, New York county. Action by William B. Cooper, Jr., against Alfred M. Townsend, James N. Platt, David Palmer, and the National City Bank. Defendants appeal from a judgment for plaintiff entered on trial by the court without a jury, and plaintiff also appeals from the judgment, so far as it fails to allow him interest claimed by him.

<p>1. Abduction—Evidence.</p> <p>At the trial of a Chinaman for taking, harboring, and receiving for the purpose of sexual intercourse a female under 16 years, complainant testified that she had intercourse with defendant at Providence, R. I., where they resided; that he persuaded her to accompany him to New York for two days; that they took the same train, defendant purchasing the tickets, but neither speaking to the other until they reached New York, where they entered a cab together, the driver of which drove them to the police station. Said driver testified that defendant engaged him to drive to Mott street, the Chinese quarter, and asked the charge for taking two men. The police captafn testified to defendant’s statement that he was taking complainant to her sister, who was his wife. Defendant’s wife did not reside in Mott street, and was not complainant’s sister. Defendant attempted to show that he did not know that his wife had moved since he was last in New York, but admitted on cross-examination that she had lived at her present address for six months prior to his arrest. Held, that the evidence justified the inference that defendant’s intent was to take complainant to some place for the purpose of sexual intercourse.</p> <p>2. Same—Evidence of Formed Acts.</p> <p>Evidence of complainant as to what occurred at Providence was competent to characterize the subsequent conduct in New York.</p> <p>3. Jury—Competency.</p> <p>A juror stated on his voir dire that he had formed an opinion as to the guilt or innocence of defendant from what he had read in the newspapers which it would require strong evidence to remove; but he subsequently declared that the opinion or impression which he had would not influence the verdict, and that he would decide the question involved upon the evidence uninfluenced by anything else what ever. Held, that he was competent to serve.</p>

Appeals from special term, New York county. Application of George H. Stonebridge, Jr., as receiver of the New York Book Company, for a warrant for the examination of John B. Aiden in regard to the property of the company. Said Aiden appeals from an order di-. reeling the warrant to issue, and from an order denying his motion to set aside the warrant. See former decisions, 6 N. Y. Supp. 311, and 10 N. Y. Supp. 727.

Action by James M. Horton against William H. Childs, Moritz Bauer, and others to foreclose a mortgage. Defendant Bauer set up a counter-claim for damages from the alleged breach by plaintiff of an agreement with him to remove certain incumbrances from the property. On trial by the court without a jury judgment was rendered for plaintiff. Defendant Bauer appeals from the judgment. See former reports, 7 N. Y. Supp. 570, and 11 N. Y. Supp. 797.

the Mechanics’ National Bank, the National City Bank of New York, and Alexander E. Orr appeal from a judgment in favor of the defendant St. Amant as against the other defendants. For former report, see 11 N. Y. Supp. 133.

<p>Appeal from special term, New York county.</p> <p>Action by Frank Phelps against the mayor, aldermen, and commonalty of the city of New York. Defendants appeal from a judgment for plaintiff, entered on trial by the court without a jury. For former report, see 11 N. Y. Supp. 657.</p>

At chambers. Action by Frederick N. Conklin and others against the New York Elevated Railroad Company and the Manhattan Railway Company for past damages sustained by the construction and operation of defendants’ elevated railroad, for an injunction to restrain such further operation.

Petition by Daniel R. Davis and another, as administrators with the will annexed of Elizabeth Jayne, deceased, for an accounting by Benjamin S. Mills, as executor of the last will and testament of Clarissa Darling, deceased; to which the executor set up the statute of limitations. It appeared that in 1871, without any accounting, he had paid to the legatees under the will all the assets remaining in his hands after payment of debts and expenses.

Action by William Ziegler against Alfred C. Chapin, mayor of the city of Brooklyn, and the comptroller and auditor of that city, brought by plaintiff, as a tax-payer, to have a contract entered into by defendants on behalf of the city to purchase the property and franchise's of the Long Island Water-Supply Company for the sum of $1,250,000 declared null and void.

On motion for leave to file supplemental answer. This action was originally instituted in 1863 by William Palen, as receiver in supplementary proceedings of Henry Bange, against said Bange and one Ezra L. Bushnell, to whom said Bange was alleged to have conveyed property'in fraud of his creditors. Defendant Bushnell died June 13, 1887, leaving a will by which he appointed Adelaide E., his wife, executrix, and Ezra D. Bushnell and Albert Van Der Werken executors.

<p>■Setting Aside—Premature Judgment.</p> <p>A judgment entered before one of the defendants’ time to answer has expired will be set aside as premature on the application of such defendant, though on the trial of the case there has been an adjudication of her death. ’</p>

<p>Appeal from trial term.</p> <p>, Action by John Rieger against the Fahys Watch-Case Company. Plaintiff appeals.</p>

Action by Christian D’Oro against the Atlantic Avenue Railroad Company. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

•Appeal from trial term. Action by John Horling against William H. Allee and others, as executors, etc., of Joseph B. Allee, deceased. There was judgment for plaintiff, and defendants appeal.

An appeal from special term. Action by Charles U. Wing against Bernardo De la Rionda and others. Defendants appeal. For former reports, see 5 FT. Y. Supp. 550, and 25 N. E. Rep. 1064.

<p>Appeal from special term.</p> <p>Action by Charlotte Albere, George W. Albere, and Emma Jane Albere against George A. Kingsland. Defendant appeals from an interlocutory judgment overruling his demurrer to the complaint.</p>

Action by the Metropolitan Manufacturing Company, a Connecticut corporation, against John P. Coyne, for goods intrusted to defendant, and for which he did not account. On November 15, 1889, plaintiff obtained an order for defendant’s arrest, and he has been in custody ever since that time. On the trial, which was had December 12, 1889, plaintiff recovered a judgment for $987.

Action by Forbes against Muxlow. Plaintiff obtained judgment by default, and defendant now moves that the cause be set aside. Code Civil Proc.

Action by Emma A. Reed against Photo-Gravure Company to recover on a promissory note in which plaintiff was payee and defendant indorser. There was judgment for plaintiff, and defendant appeals.

Action by the H. B. Smith Company against Charles P. Chapin to recover the contract price, and for extra work, for erecting in the house of the defendant “a steam and hot-water heating apparatus. ” The contract was in writing, and the amount to be paid under said contract was the sum of $870. The sum of $35.80 was claimed for extra work ordered by the defendant. The plaintiff alleges that $500 liad been paid on account, and claims the balance due of $405.80, besides interest.

This is an action by Peter De Lacy against Alfred L. Walcott and others. Plaintiff appeals from an order vacating an order for the examination of defendant to enable plaintiff to frame his complaint. Code Civil Proc.

Action by Valentine Hammann against Bichará Jordan, to recover half the expense of building a party-wall. Defendant’s answer denied that the wall was a party-wall, and set up a counter-claim for use and occupation of his land on which it stood, and for the cost of walls he was compelled to build by reason of defect in the alleged party-wall.

Action by Jacob B. Tallman against Ferdinand P. Earle to recover for seven months’ rent of apartments let to the defendant on the first floor of the premises 37 West Fifty-Third street.

Action by Edward B. Gibson against Patrick Donnelly for milk sold and delivered to the defendant between August 15 and October 1, 1888. The defense consisted of several counter-claims.

Action by Margaret Niebuhr against John Schreyer for an accounting in respect of alleged copartnership transactions. The plaintiff, the owner of eight lots of land on West Forty-Fifth street and Tenth avenue in the city of New York, entered into an agreement with the defendant in October or November, 1883.

Action by Richard Lathers against Jacob H. Hunt for rent. Defendant, to secure payment of the rent, had executed to plaintiff a chattel mortgage on certain furniture in the demised premises. On defendant removing from the premises, and abandoning the furniture, plaintiff took possession of and took care of it.

<p>Appeal from seventh district court.</p> <p>Action by Isaac Hattenbach against Charles Gundersheimer. Defendant appeals from a judgment for plaintiff.</p>

<p>Motion to vacate a judgment entered on a forfeited recognizance in favor of the people of the state of New York against Charles H. Ohlrogge and another.</p>

Action by John N. Wyekoff and Prank It. Wyekoff against Egbert B. Middlebrook and Lemuel H. Wilson, brought in the city court of New York. Plaintiffs move for leave to appeal to the court of appeals from a judgment reversing a judgment of the city court in their favor against defendant Wilson, and granting a new trial. See former reports, (9 N. Y. Supp. 628, and 13 N. Y. Supp. 270.)

Action by Simon Strauss against William L. Hamersley to recover damages for injuries to plaintiff’s premises caused by the want of repair of the plumbing woik on the adjoining premises, owned by the defendant. There was a judgment for the plaintiff, and the defendant appeals.

<p>1. Credibility of Witness.</p> <p>The willful false-swearing of a witness in one particular does not absolutely discredit his entire testimony; but the whole is to be submitted to the court or jury to determine, by the ordinary tests of veracity, whether and how far they may believe him.</p> <p>3. Divorce—Evidence of Adultery.</p> <p>In an action for divorce upon the ground of adultery committed within a specified time, evidence of the improper relations and conduct of the parties anterior- and subsequent to the time charged is admissible and material to show an adulterous intent.</p> <p>3. Same.</p> <p>The plaintiff and defendant, in an action for divorce, were married in 1879. Im 1886 they became acquainted with the co-respondent, who attached himself to them as an inmate of their family, and accompanied or followed them in a number of" moves to different quarters of the city. Defendant frequently called on corespondent, representing herself as a relative, and was received by him privately. Thereafter she engaged rooms for co-respondent and herself, representing herself" as his wife, and remained in the room with him nearly every day, with the door-closed and locked, and was seen with him undressed in the room. Finally co-respondent addressed to her a letter, in which he says, among other things, “there-can be no resuming the past life you and I have led. ” field, that the evidence was sufficient to sustain the charge of adultery.</p>

Action by Isaac A. Hopper against Robert Fulton Cutting and another to recover $2,160, unpaid balance on a building contract of $53,729.15. The defense was that the work was not done to the satisfaction of the architect in three particulars, viz., roof, cellar, and a portion of the sidewalk.

Action by the Press Publishing Company against Seward Baker to recover compensation for publishing a summons and notice required by law, service by publication thereof having been directed by the court, and the plaintiff’s newspaper, the World, being one of the papers designated for the purpose of such publication. There was a judgment for the plaintiff, and the defendant appeals.

<p>Novation—Evidence.</p> <p>In an action by a subcontractor against a contractor for repairs, it appeared, upon cross-examination of the plaintiff, that he had accepted defendant’s employer as his debtor, and had rendered him bills for work done, and received his note in payment thereof. Held, that the court erred in thereafter excluding evidence offered by defendant to show that plaintiff had so accepted defendant’s employer as his debtor in the place and stead of defendant, with intent to discharge him from further liability.</p>

Action by Harriet A. Brady, executrix, and another, against Patrick Cassidy and another, to recover the price of goods sold and delivered to the defendants. The defendants appeal from an order allowing the .plaintiffs to amend their complaint.

Action by Estella Leoncini against Edward S. Post to recover the value of a quantity of sheet-music belong to the plaintiff’s husband, which had been annotated and transposed by him, and left in plaintiff’s custody, and which she had stored with the defendant, who was a storage warehouseman, and who failed to return the same upon demand.

Action by Louis Eossi against Thomas MacKellar and others, to enforce a mechanic’s lien for $744.22 upon certain premises on the corner of 107th street and Fourth avenue, done by the plaintiff under contract with the defendant Susan M. Sharkey, who occupied the property as purchaser under an executory contract.

Application by the .¿Etna National Bank and others for an.order requiring Theodore Shotwell, assignee of Joseph W..Frazier, for the benefit of applicants to take up and file a referee’s report of the assignee’s transactions, and pay the referee’s charges thereon.

Action by John D. Elwell against Cyprien Fabre to recover damages for the defendant’s failure to send a ship of his “line” to the plaintiff’s pier, according to the terms of a contract between the parties. The defense was that the said ship was not of the defendant’s line, being under contract of affreightment to a third party; and a counter-claim for expenses incurred by reason of a defect in the plaintiff’s pier.

Action by John D. Elwell against Cyprien Eabre upon a contract. Plaintiff alleged that on Eovember 11, 1888, the defendant’s steamer Burgundia left his pier, leaving on it cargo, viz., a quantity of pomegranates in excess of the bulk of 200 barrels, and that that remained there till December 29th, and that by virtue of a contract between the parties he was entitled to $1,200 therefor.

■ Proceedings on the relation of Locke W. Winchester, as treasurer of the National Express Company, to review the action of the tax commissioners in taxing the National Express Company upon its capital stock as a corporation. Erom a judgment vacating the assessment the commissioners appeal.

At chambers. George W. McLean, receiver of taxes for the city of New York, applied under the city charter, § 857, (Laws 1882, c. 410,) for a wrarirant to enforce the payment of a tax on personal property owned by John H. Jephson, a non-resident. The special term, after the argument, ordered the ■defendant to pay the taxes, and on default to be imprisoned as for a contempt. This order was affirmed by the general term.

At chambers. Elizabeth G. Cianeimino instituted proceedings to set aside an election of officers by a corporation of which she was a member.

At chambers. Action by the United States Life Insurance Company against George W. Poillon and others, heirs at law of Cornelius Poillon, deceased, and Wellesley W. Gage and others, creditors.

Action by Charles T. Nobis against W. J. Pollock and Louisa Pollock for the foreclosure of certain liens. There was a judgment in plaintiff’s favor at special term, and defendant appealed to the general term. When the cause was reached on the calendar of the general term, it was discovered that the findings had not been signed by the trial judge, and the general term refused to hear argument.

<p>1. Action on Check—Draft on Fictitious Payee.</p> <p>In an action on a check drawn by defendant it appeared that on the 86th of May the check was delivered to B. as an accommodation, that B. indorsed it to S. M., doing business in Washington as “M. & Co., ” and who agreed to give B. his draft for the same amount; that it was then indorsed by S. M. to the order of M., D. & Co. for account of M. & Co., and sent to New York, addressed to M., D. & Co.; that no such firm as M., D. & Co. then existed, but prior to the making of the check plaintiffs, with S. M. and D. M., were copartners, doing a stock brokerage business in New York as M., D. & Co.; that on the 84th or 35th of May S. M. & D. M. sold out their interest to one of the plaintiffs, who then formed the firm of D. & Co.; that on receipt of the check in New York on the 39th of May it was indorsed by one of the plaintiffs in the name of the old firm of M., D. & Co., and credited to their account with M. & Co.; that S. M. failed on the 31st of May, and payment of the check was thereupon countermanded; that the draft which S. M. delivered to B. on May 29th to complete his part of the agreement was drawn upon M., D. & Co., but was not presented until the 2d of June, when payment was refused. All paper drawn upon and addressed to M., D. & Co. was honored by plaintiffs the same as if it had been drawn directly in the-name of D. & Co. Held, that a finding that the draft drawn by S. M. in favor of B. was worthless because drawn on a firm having no existence on the day of its date could not be sustained.</p> <p>3. Same—Bona Fide Holders.</p> <p>A finding that plaintiffs knew of the insolvency of S. M. was not sustained by evidence that one of them had interviews with S. M. at Washington on the 28th of May, especially as both plaintiffs denied having any such knowledge, and it further appearing that on the 29th of May the account of S. M. with plaintiffs showed a balance in his favor sufficient to pay the draft.</p>

<p>The United States National Bank loaned money to John J. Louth individually on a pledge by the latter of bonds which belonged to the estate of Mend-lick Gottberg, deceased, and which had come into Louth’s possession as one of the executors of the estate. The bonds, which had been registered in the names of the executors, were indorsed to the bank by Louth, in the name of both executors, but without the knowledge of his co-executor. The bank acted in entire good faith, and without any knowledge of the fact that Louth was executor, as it did not see the bonds until after they had been transferred to it on the books of the corporation which issued them. This action is now brought by Julius Gottberg, Louth’s co-executor, against the bank and Louth to recover the value of the bonds.</p>

<p>At chambers. Action by Thomas C. Campbell against John J. Babcock and others to restrain summary proceedings instituted by defendant before a justice of the peace to recover possession of certain premises, and to compel defendant to convey the premises to plaintiff. A preliminary injunction was issued as prayed for, and plaintiff now moves for its continuance pendente lite.</p>

<p>This action was commenced on March 6, 1879, by Henry R. Pierson, as receiver of the Widows’ & Orphans’ Benefit Life Insurance Company, against Andrew W. Morgan and 15 other defendants, to recover damages for waste, alleged to have been committed by them as trustees in their own wrong of said company. After issue joined, but before trial, the defendant Morgan, on March 31,1886, departed this life. In June, 1888, this action was severed, and revived against the above-named defendant Justine N. Cronk, as administratrix, etc., and issue was joined by her answer in September, 1888. The action was brought on for trial in November, and testimony taken at different intervals during a period of several weeks, and before submission the former receiver, in January, 1890, died, and the present plaintiff was submitted in his place. Por former reports, see 4 N. Y. Supp. 898, 5 N. Y. Supp. 53, and 7 N. Y. Supp. 573.</p>

Stephen D. Burritt sued Allen Sheffer for conversion. Defendant appealed from a judgment for plaintiff, and from an order denying the defendant’s motion for a new trial on the minutes of the court, in an action commenced, in a justice’s court, and appealed to the county court for a new trial.

Action by Emory Cole against the Millerton Iron Company and others. Plaintiff appeals from a judgment for defendants entered on the dismissal of the complaint on trial by the court without a jury.

<p>Action on Certifícate of Deposit—Rights of Third Parties.</p> <p>Where a certificate of deposit, transferable by delivery, is in the hands of a third person under a claim of right, the payee cannot sue the bank thereon, even though he may "offer an indemnifying bond, until he has first established his right as against the holder, and obtained possession of the certificate.</p>

<p>Appeal from circuit court, Erie county.</p> <p>Allen W. Sellick sued J. Langdon & Co. Defendant appeals from a judgment in favor of plaintiff entered on the verdict of the jury, and from an order denying defendant’s motion for a new trial, made on the minutes of the court.</p>

<p>Opening of Default—Appeal—Waiver of Conditions.</p> <p>Where an order opening plaintiff’s default, on condition that he pay certain costs, is appealed from by defendant, after refusing to accept plaintiff’s tender, which order is affirmed on appeal, defendant thereby waives the right to demand on affirmance of the order that plaintiff pay such costs before prosecuting the suit.</p>

Charles W. Whitney and others sued Henry W. Eichardson and others to recover rent. The defendants appeal from a judgment entered upon a verdict and an order denying a motion for a new trial.

Motions to confirm and to set aside the report of a referee. Action by Walter Langdon against tbe mayor, aldermen, and commonalty of the city of New York. On the report of a referee appointed in the action to take proof and report the same with his opinion as to the value of certain bulk-head property of plaintiff taken by defendants for public purposes, defendants moved to confirm the report, and plaintiff moved to set aside the report, and for a new hearing.

<p>Landlord and Tenant—Action for Rent.</p> <p>Where the purchaser at a foreclosure sale, to prevent suit to set the sale aside by one who bad a lien on the land, gives him a part thereof, and agrees to make him a deed therefor, and the latter rents the premises to another, judgment for the tenant, in an action against-him by the purchaser at the foreclosure sale for rent, is proper.</p>

<p>Appeal from special term, Monroe county.</p>

<p>Appeal from circuit court, Cattaraugus county.</p> <p>E. B. M. Higdon sued the Alleghany Lumber Company, Limited, to recover for personal injuries. Judgment for plaintiff, and defendant appeals.</p>

<p>■ Motion to vacate interlocutory judgment.</p> <p>Action by Henry O. Havemeyer and others, constituting the board of trustees of the Sugar Refineries Company, (Sugar Trust,) against the Brooklyn Sugar Refinery and the other companies forming the “Sugar Trust, ” which had theretofore been adjudged illegal, (People v, Sugar Refining Co., 3 Y. Y. Supp. 401, affirmed by the general term of the supreme court in 7 Y. Y. Supp. 406, and by the court of appeals in 24 Y. E. Rep. 834,) and certain holders of “trust” certificates. The object, of this action, as stated in the complaint, was to obtain a decree declaring that plaintiffs were no longer required to continue in the discharge of the duties as members of such board; that the “trust” property in their hands be sold; that the persons interested in the same be ascertained and be required to assert their claims in this action; that they be enjoined from bringing any other action to assert such rights; and that plaintiffs, on accounting for the property in their hands, be discharged from all further liability in the premises. Duncan Cameron and John H. Gleason were made defendants in this action on their own application as holders of “trust” certificates. Defendants Cameron and Gleason move for the appointment of a receiver.</p> <p>While the action brought by Havemeyer was pending, Duncan Cameron, as a certificate holder, sued said Havemeyer and his associates to obtain a speedy settlement of the affairs of the “ trust. ” Plaintiff alleged that though defendant trustees, in the action brought by them, averred that they were willing to account to the certificate holders, yet, as a matter of fact, they were keeping the property of the “trust” together at great expense to the certificate holders in order that it might be sold in bulk so as to prevent competitive bidding, it being their object, together with others, to reorganize the “trust” for their own benefit, and to transfer the property in their hands to the reorganized body; that said trustees, in futherance of their scheme, had made the firms of Hash, Spaulding & Co. and Wormser & Co. defendants in the action brought by them; that said firms were secretly cooperating with said trustees, and, while apparently representing the interests of the certificate holders, they were really endeavoring to delay judgment in said action, .and to induce the certificate holders to surrender their certificates; and that said trustees are secretly buying up certificates in abuse of their trust. On Hovember 11, 1890, Henry W. Slocum, Stephen V. White, and Henry 0. Havemeyer were appointed receivers of the property of the “trust.” On Hovember 15,1890, the special term entered an interlocutory judgment, in which it was adjudged that the trustees held the trust property in trust for the certificate holders, and that they should be discharged, and account to the certificate holders. The trustees were given 30 days in which to make a full disclosure to the receivers of all their doings while on the board of trustees, and to render their account; and they were directed to immediately turn over to the receivers the trust property, including the stock of the corporations composing the trust. The receivers were directed to ascertain and report to the court the best disposition to be made of the property, and to investigate the condition of each of the corporations comprising the trust, and the officers and employes of such corporations were directed to make full disclosure to the receivers. The receivers were further empowered to bring and defend all necessary actions, The account of the trustees and the objections thereto were directed to be submitted to a referee, who was empowered to hear testimony on all controverted claims. All persons were enjoined from doing anything which might embarrass the receivers in the discharge of duties. The trustees now move that this interlocutory judgment be vacated. For opinion on motion for injunction, see 12 H. Y. Supp. 126.</p>

<p>Action by H. N. Grafton against the Union Ferry Company to recover for personal injuries.</p>

Action by Michael Gibbons and another against Thomas Bussell for a balance claimed to be due on a building contract, and for extra work. Defendant set up a counter-claim for damages from the negligent conduct of the work by plaintiffs, and testified that the work was improperly and negligently done, and that, in several particulars, it was not finished as required by the contract and specifications.

<p>1. Appeal—Review—Weight op Evidence.</p> <p>In an action by an attorney for professional services, the evidence was conflicting as to whether an agreement fixing the compensation therefor, which had been abrogated by a letter from plaintiff to defendant, had been reinstated by the withdrawal of the letter, as claimed by defendant. Held, that the finding of a referee thereupon in favor of plaintiff would be sustained on appeal, although defendant’s testimony was corroborated by that of his attorney, who was a brother of plaintiff, and had been connected with him in business.</p> <p>2. Compensation op Attorney—Evidence. The defendant and plaintiff’s brother testified that, after the abrogation of the original contract, other agreements were made as to tbe compensation to be paid to . plaintiff for servicies he was to render. Plaintiff’s brother was not his partner, and no relation existed between them which authorized him to bind plaintiff by special contracts made for him; and plaintiff denied that he had knowledge of the agreement. Held, that a finding of the referee that plaintiff was not bound by such agreements should be sustained.</p>

Andrea Caccavo, as administrator, sued the Rome, Watertown & Ogdensburg Railroad Company for causing the death of his decedent, and appeals from an order compelling him to furnish security for costs.

Action by Euphemia S. Coffin against Elizabeth Jane Atkins and others, for an accounting of expenses incurred by plaintiff in supplying steam and hot water to defendants’ houses.

Action by David- Sears, Henry P. Sears, and Emily E. Sears against the Metropolitan Elevated Railway Company and the Manhattan Railway Company. Defendants appeal from a judgment for plaintiffs entered on trial by the court without a jury.

Exceptions from jury term. Action by Albert Emmitt against the mayor, aldermen, and commonalty of the city of New York.

Action by Frederick S. Denton against J. Frederick Kernochan, to recover for damage to plaintiff’s goods by an overflow of water. The wrong imputed to defendant is that he “negligently, carelessly, and heedlessly opened and left open a certain faucet appurtenant to his premises, whereby the water flowed through the same into the apartments of the defendant, ” and occasioned the injury complained of.

Action by Simon Desson against Carl Antony and another to recover money had and received. There was a judgment for the plaintiff, and the defendants appeal.

Action by Carl Gutman against Henry Rogers to recover money had and received to the defendant’s use. The plaintiff appeals from an order affirming a judgment of the trial term, dismissing the complaint at the close of the plaintiff’s case. For former report, see ante, 576.

Action by William T. P. Brown against the Baldwin & Gleason Company, Limited, to recover damages for an alleged wrongful discharge from the defendant's service. The plaintiff was employed by the defendant to serve it “exclusively and actively as traveling salesman” under a written contract. He entered upon his duties, but soon thereafter declined to pursue them, upon ■ the ground that they did not include the getting out a line of samples for the trade.

Action by Charles H. Dyett, assignee, against Samuel P Hyman and others, to recover damages for trespass in the taking and carrying away of plaintiff’s goods under an attachment. The defense interposed was (1) that there were other attaching and indemnifying creditors who shared in the proceeds of the property taken, and should be required to share in the liability therefor; (2) that the assignment under which the plaintiff claimed was fraudulent and void.

Action by Phillip W. German against the Suburban Rapid Transit Company to recover damages for personal injuries. There was a verdict and judgment for the plaintiff, and the defendant appeals.

Action by Howard A. Sperry against Theodore Heilman and another upon an undertaking given by them as sureties to secure an order of arrest of the plaintiff in an action against him and another in the supreme court. The defendants appeal from a judgment of the general term of the city court, affirming a- judgment against them rendered by the trial term.

Application by Charles E. Fleming and others, relators, church-warden and trustees of the Protestant Episcopal Church of St. Stephen in the city of New York, for a mandamus requiring A. Bloomer Hart,… Held: at which the defendant presided, and was the returning officer.

<p>Action by Sarah B. Brush and another against the Manhattan Railway Company and the Metropolitan Elevated Bailwny Company.</p>

<p>1. Elevated Railroads — Construction in Street—Nuisance—Abutting Owners.</p> <p>The construction of an elevated railroad in a street, thereby infringing on the easements of abutting owners, does not render the railroad company guilty of a trespass, because incorporeal interests are not the subject of trespass, but does render it guilty of the maintenance of a nuisance.</p> <p>2. Same—Injunction—Damages.</p> <p>To warrant the injunction against the operation of the road as a nuisance^ the complaint must show a substantial injury; and, as the question in such a case is of permanent injury to the inheritance, it is proper to consider the advantages of the locality of complainants’ lots for residential purposes, the effect of the railway structure in neutralizing those advantages, and the comparative value of the lots for any other purpose.</p> <p>3. Same—Evidence.</p> <p>The fact that property in ad j acent streets, not affected by the railroad, has doubled in value since its construction, while the value of complainants’ property has only slightly increased, proves that the injury from the railroad preponderates over the benefits derived from it, and warrants the issuance of an injunction against its continued operation.</p>

<p>Appeal from special term.</p>

<p>Appeal—Allowance.</p> <p>In New York, where a case involves no new question of law, and the decision of the court of common pleas is only an application of well-settled principles, an appeal to the court of appeals will not he allowed.</p>

Action by Patrick J. McPhillips, as administrator of the estate of John B. McPhillips, against the New York, New Haven & Hartford Bailroad Company, to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence. John B. McPhillips, the plaintiff’s intestate and son, a school lad, was killed on the 3d day of May, 1881.

Application of the Abyssinian Baptist Church of the City of New York to change its name to the Antioeii Baptist Church of the City of New York. The petitioners appeal from an order vacating an order authorizing such change of name. Laws N. Y. 1853, c. 323, authorizes proceedings by any religious corporation for a change of its corporate name in the manner provided for the change of the name of an individual. Code Civil Proc.

Motion to vacate judgment on a forfeited recognizance against Nathan Cohen, as surety. Laws NT.

Action by Joseph E. Hinds and others against James E. Kellogg, for work, labor, and services and materials furnished, which defendant refused to accept, on the ground that the articles manufactured were not delivered within the stipulated time. There was a judgment for the plaintiffs, and the de fendant appeals.

Action by John B. Devlin, administrator, against the mayor of New York and others. The defendant appeals from an order denying a motion made by him to restrain the plaintiff from entering judgment on a referee’s report, upon the alleged ground that it does not direct the judgment to be entered thereon pursuant to Code Civil Proc. § 1022,- which provides that the report of a referee “must direct the judgment to be entered thereupon.”

Appeals from special term. Action by Catharine Markey against Patrick Markey and the Franklin Savings Bank of the City of New York. The defendant bank answered the complaint, but did not appear at the trial. Defendant Patrick Markey appeals from a judgment for plaintiff rendered on trial by the court without a jury, and plaintiff appeals from so much of the judgment as stays execution thereof for one year.

<p>1. Partnership—Accounting—Evidence.</p> <p>Where partners owning large interests in different properties, which for convenience has been taken in the name of one or the other of them alone, enter into an agreement under seal setting forth such property and its ownership, and providing for a conveyance from each other when requested, and a subsequent conveyance in furtherance thereof, as between themselves, of some of the property, which, instruments do not state the amount of personal property received by each partner, or the amount of their indebtedness to each other, such instruments do not constitute a settlement so as to exclude paroi evidence in a suit for an accounting by the executors of a deceased partner against the survivor.</p> <p>2. Appeal—Weight of Evidence.</p> <p>Where a referee excludes evidence as inadmissible, the supreme court, on appeal, after holding it competent, cannot pass on its weight. .</p> <p>8. Same—Findings by Referee.</p> <p>An appeal will not lie in a suit for a partnership accounting where the cause has been referred, and the referee has held that there has been a settlement, and excluded paroi evidence as on an accounting, but has not made a finding as to the settlement.</p>

<p>. Appeal from circuit court, Erie county.</p> <p>Action by Emily Rathgaber against the village of Tonawanda. A verdict * for plaintiff was set aside and the complaint dismissed, and plaintiff appeals.</p>

' Action by Julia J. Bogers against Ellen A. Bock wood. Erom an order requiring plaintiff to accept the answer and directing that the answer served stand as the answer in the case, plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Frederick Van Patten against Constantine Ulrich. There was a judgment for defendant, and plaintiff appeals.</p>

Action by George D. Smith against M. Edwin Servís. From an order directing a retaxation of defendant’s costs, defendant appeals. For former reports, see 2 FT. Y. Supp. 865, and 11 FT. Y. Supp. 301.

Exception from circuit court, Monroe county. Proceedings by Edward Bossney against Julius Armbruster and others, comprising the executive board of the city of Bochester, to compel defendants to reinstate relator as superintendent of streets in said city. Defendants move for a new trial on exceptions ordered to be heard at general term in the first instance.

Action by Francis M. Schuyler against Emory A. Boss and another. From a judgment of the county court reversing the judgment of a justice of the peace plaintiff appeals.

Action by Fanny Bradley against Ladwick H. Carter. From a judgment entered on a verdict for plaintiff for $450, and from an order denying a motion for a new trial on the minutes of the court, defendant appeals.

Petition by Dorcas S. Myrick for the appointment of commissioners to assess the damages to petitioner’s property resulting from a change of the grade of the street in the village of Olean, on which such property abutted. From an order confirming the award of the commissioners the village appeals.

Action by John Parker and another, executors, etc., of James Linden, against Mark Lythgoe and others, impleaded with Jane Smith, brought to obtain a judicial construction of the will of plaintiffs’ testator. Defendants Mark Lythgoe and others appealed from an order granting a commission to examine Jane Smith and other witnesses residing in New Zealand, on interrogatories to be annexed to such commission. For former report, see ante, 95, 787.

<p>Appeal from special term, Kings county.</p> <p>Action by John P. Crawford and another against Martin B. Tyrrell.</p>

<p>Appeal from circuit court, Suffolk county.</p> <p>Action by Thomas Mackey against Martin Cuff.</p>

Action by Fred Stone against John Devlin. From a judgment in plaintiff’s favor, and from an order denying his motion for a new trial, defendant appeals.