Volume 130 — New York Appellate Division Reports

. Appeal by the defendant, Frederick J. Lancaster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of February, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James M. Lalor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 13th day of July, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiff, Morris Gelof, from an order of the Appellate Term of the Supreme Court, bearing date the 10th day of April, 1908, and entered in the office of the clerk of the county of Hew York, reversing a judgment of the City Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said City Court on the 28tli day of October, 1907, upon the verdict of a jury and directing a new trial.

<p>Practice —pleading — amendment as of course.</p> <p>Although a demurrer to a complaint has been sustained and the plaintiff has been allowed to serve an amended complaint on payment of costs, he may, under section 542 of the Code of Civil Procedure, again amend as of course within ■ twenty days after service of the answer if he has not already served an . amended pleading as of course.</p>

Appeal by the defendant, the Press Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of March, 1908, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 26th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Judgment — decree partitioning and distributing trust estate—when res adjudicata — assignment of interest in trust property—when personal claims not transferred thereby — appeal — findings not supported by evidence.</p> <p>Where tiie decree of a Federal court of competent jurisdiction determined the relative interest of claimants to a trust estate and directed a partition of the lands and a distribution of the personalty in certain proportions, with a provision that any of the parties might become purchasers on the partition sale and that the master’s deed should vest the purchaser with a fee simple,, and one of the parties purchased at the master’s sale, the decree is res adjudicata as to his right to hold the lands in his individual capacity. Hence, neither the other parties to the suit, nor those claiming under them, can maintain a subsequent suit to impress a trust upon the lands on the theory that the purchaser being at the time the representative of a deceased claimant, owed a debt to his estate. ' • .</p> <p>Said decree is also res adjudicata as to the said purchaser’s distributive share in the personalty, and moneys received thereunder he holds as an individual free from all claims which any of the parties to the suit might then have had against it.</p> <p>When such prior suit related only to the division of trust property under the . will of the original ancestor of all the parties, and among other things, it was .adjudged that the persons who afterwards brought the second action took their interest only as assignees and grantees of an interest in the trust property, they were not vested by the assignment with any personal claim which the party whose interest was conveyed to them might have had against another beneficiary; and, hence, their complaint to impress his share with a trust by reason of such personal claim should be dismissed upon the merits.</p> <p>Where there is no evidence to sustain a finding of the trial court in a suit in equity it is not binding upon the Appellate Division.</p>

<p>Appeal by the plaintiff, George M. Heinbach, from a judgment of the Supreme Court in favor of the defendant, Doubleday, Page & Company, entered in the office of the clerk of the county of New York on the 29th day of January, 1908, upon the verdict of a jury, and also from an order entered in said .clerk’s office on the 21st day of February, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal ,by the defendant, The British America Assurance Company,, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 27th day of July, 1908, upon the decision of the court, rendered after a trial at the Mew York Special Term, overruling the defendant’s demurrer to the complaint.</p>

Appeal by the plaintiff, Henry J. Washburn, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew Yoik on the 17th day of October, 1907, setting aside the verdict of a jury in favor of the plaintiff and directing a new trial of the action.

Appeal by the relator, Theodore W. Myers, from an order of the Supreme Court, made at the New York Special Term and entered in the office of' the clerk of the county of New York on the 27th day of April, 1908, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, Ivan Chaskin, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of October, 1908, granting the defendants’ motion that an open commission issue to take the deposition of witnesses produced by defendants in the ¡Republic of ¡France.

Appeal by the plaintiff, Thomas W. Berry, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of March, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Crime — burglary, second degree — evidence sufficient to sustain conviction — witness — competency of infant under fourteen years of age — denial of request to examine infant witness as to age.</p> <p>Evidence supporting a judgment convicting the defendants of the crime of burglary in the second degree examined, and held, that the jury was warranted in finding them guilty beyond a reasonable doubt.</p> <p>Where the court is .satisfied that a witness under twelve years of age has sufficient intelligence to understand the obligations of an oath, and allows him- to be sworn and testify, the defendant is not prejudiced hy a refusal of the court to allow an examination of the witness to ascertain his age.</p>

Appeal by the plaintiff, Samuel Maas, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1908, vacating an execution issued against the defendant’s salary; *

<p>Appeal by the defendant', Carolyn Wilson, from an order .of the SupTeme Court, made at the Mew York Special Term and entered in tl!ie office of the clerk, of the county of Mew York on the 18th day ¡of August, 1908, granting the plaintiff’s motion for the appointmehlt of a referee to. ascertain damages caused by an injunction obtained by the defendant.</p>

Appeal by the plaintiffs, Nathan Sachs and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of October, 1907, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Willet F. Cook, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clez-k of the county of Hew York on the 20th day of November, 1908, directing the payment of certain funds to the plaintiff.

<p>Insurance — penalty for failure to report to the New York board of fire underwriters — obligation of marine insurers.-</p> <p>Agents of an unincorporated marine insurance company issuing policies covering goods and ships while in the harbor of New York and policies which attach to goods from the moment they leave the warehouse until they reach their final destination, and also policies insuring automobiles against fire, etc., aré liable for the statutory penalty created by chapter 846 of the Laws of 1867 for a failure to furnish to the New York board of fife underwriters, incorporated by said statute, a semi-annual report of the aggregate amount of pre-. tníums received for insuring property in said city.</p> <p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, Frederick J. Martin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of May, 1907, upon the verdict of a jury for $2,180, rendered by direction of the court, and also from an order entered in said clerk’s office on the 1st day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Real property —vendor and purchaser — marketability of title — inconsistencies in description of boundary between adjoining lots.</p> <p>In construing deeds, as in the case of contracts, the interpretation is not always to he determined by the precise language of the description, but reference may he had to accompanying facts and circumstances in order to ascertain the intention of the parties.</p> <p>A vendee cannot refuse to take title to two adjoining lots owned by a single vendor on the ground that a prior owner when conveying the lots to separate parties described one of the lots as hounded by the center of a party wall standing equally on both lots, while the other deed, although describing the center of the party wall asfa boundary, also described by precise measurements, which threw the boundary one-half inch off the center line of the wall. This, because it was apparent that the former owner intended to convey the houses as they stood with the party wall between them as a boundary for each.</p> <p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.</p>

Appeal by Frank Marcus from a judgment of the Supreme . Court, hearing date the 21th day of August, 1908, and entered in the office of the clerk of the county of Hew York, upon -a final order entered in said clerk’s office on the 21st day of August, 1908, confirming an award of arbitrators herein and also (as stated in the notice of appeal) from said final order.

Appeal by the defendants, Susan Day Parker and another, from a judgment of the Supreme Court in'favor of the plaintiffs, entered in the office of the clerk of the county of blew York on the 15th day of April, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, The Hartley Silk Manufacturing Company,-from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 12t-h day of Hovember, 1908, granting the plaintiff’s motion for a bill of particulars.

<p>Appeal by the plaintiff, John J. Lord, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, entered in the office of the clerk of the county of Yew York on the 21st day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of November, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Walter C. Carr, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of April, 1908.

Appeal by the plaintiff, Samuel W. Elirich, from an order, of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of October, 1908.

<p>Appeal by the relator Francis O. Murphy, from an order of the; Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of .the county of Hew York on the 26th day of February,. 1908,-denying the relator’s motion for a peremptory Writ of mandamus.</p>

<p>See head note in People ex rel. Murphy v. Bingham (ante, p. 112).</p>

Appeal by the defendant, George N. Reinhardt, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of May, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of May, 1908, denying the' defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Maurice Fitz-Gerald, frozn a judgment of the .Court of.Genez’al Sessions of the Peace in and for the county of New York.in favor of the plaintiff, rendered on the 2d day; of March, 1908, convicting the: defendant of the -crizne of grand laz-ceny in the second degree, and also frozn an order denying the defendant’s motions for a new trial made upon the znirmtes and in arrest of judgment.

Appeal by the plaintiff, Annie Stanton, as administratrix, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 19th day of April, 1907, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the defendant, entered upon the decision of a justice of said court.

Appeal by the plaintiff, Julius L. Anderson, who sues on his own behalf, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of October, 1908, vacating an order for the examination of the respondents before trial.

• Appeal, by the defendant, Samuel B. Haines, from a judgment of the Supreme Court in favor- of the plaintiff, entered in the' office of the clerk of the county of Hew York on the 10th day of December, 1907, upon the verdict of a jury for $5,000, and also from ah order entered, in said clerk’s office on the 2d day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the West Side Construction Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 6th day of April, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term in an action to set aside a provision in a contract for the sale of real property > and to recover back the amount paid thereon..

Appeal by the defendants, The City of New York and others, from' an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of •New York on the 15th day of December, 1908, enjoining and restraining the defendants, during the pendency of this action, from tearing down, destroying, removing or otherwise interfering with the wall standing upon the westerly side of the lot or parcel of land known as Nos. 239 and 241…

Appeal by Alice P. Butman, administratrix, etc., from so much -of an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 11th day of Hovember, 1908, as allows certain commissions to the depositary of certain funds and securities.

Appeal by the plaintiff, Margaret P. Boyd, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 13th day of February, 1906, upon the decision of the court rendered after a trial at the Hew York Special Term, and also from two orders entered in said clerk’s office on the 4th day of June, 1908, and the 8th day of August, 1908, respectively, denying the plaintiff’s motions for a new trial upon…

Appeal by the plaintiff, The' Rector, etc., of St. Stephen’s Protestant Episcopal Church of the City of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 16th day of June, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.

<p>Partition — parties — motion to bring in abutting owners claiming ' ' interest.</p> <p>In aú action for partition it is proper to determine conflicting claims to the property.</p> <p>The object of such an action is to divide real property or- its proceeds among cotenants, and where it appears that an actual partition will be impracticable and that the property must be sold, each cotenant is entitled, as a matter of right, to have the property offered for sale upon such terms as. will insure as nearly as may be the realization of its full value.</p> <p>Accordingly, in an action between the successors in title of the original owner to partition a strip of land formerly used as a lane, where it appears that the abutting owners claim an .interest in the land and have paid taxes on the same, the: court, on motion of a party, will bring in the abutting owners as parties wh.ere they are specifically designated by name.</p> <p>But the court should refuse to include in such order a broad and indefinite clause requiring all'persons to be made parties “who claim to have any interest, right, title or estate ” in the premises.</p> <p>Although such claimants are not necessary parties so as to -be brought in under sections 1538, 1539 and 453 of the Code of Civil Procedure, said sections are not exclusive, and the court may bring them in under the general powers conferred by section 733 of the Code.</p>

<p>Municipal corporations — contract for construction of dam in connection with water works, city of New York — liability of city under chapter 490 of the Laws of 1883 — when no breach of contract by city.</p> <p>The aqueduct commissioners in contracting for the construction of -a dam in connection with the water supply - of the city of New York - can impose no other or greater liability upon the city than authorized by chapter 490 of the Laws of 1883, as amended. As section 30 of said act provides that in no event shall the city be held on any contract to a greater liability than that, expressed therein, nor be required to pay any sum of money for work or material greater than that stipulated in the contract, where such contract merely imposes, upon the city an obligation.to pay the contract price from time to time under certificates issued by the aqueduct commissioners, the city is liable only for payments due under such contract. If the contractor treats the refusal of the city to pay an installment as a breach of contract and abandons the work, it cannot hold the city for damages caused by such breach, or for the value of. the work done under the contract.</p> <p>Where mechanics’ liens are on file against the work at a time when a certificate for payment of an installment is received from the aqueduct commissioners,' the contractor is not entitled to payment until the liens are discharged, and the comptroller of the city has a a reasonable time thereafter within which to pay the sum dué. .</p> <p>As section 261 of the city charter allows an action against the city only where the comptroller has neglected to pay a claim within thirty days after it is presented, thirty days must be considered as the reasonable time within which the city must pay, and the contractor cannot charge the city with a breach, as a, matter of law, in failing to pay within sixteen days after mechanics’ liens upon the work have been discharged, in the absence of any express repudiation of liability upon the part of the city, especially so where all' prior payments have been delayed between ten and thirty days without objection.</p>

Appeal by the plaintiff, Frank W. Perkins, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1908, denying the. plaintiff’s motion to confirm the report of a referee herein and to enter judgment thereon.

Appeal by the defendants, the Pelham Operating Company and another, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office - of the clerk of the county of New York on the 18th day of June, 1908, upon the verdict of a jury, for $7,000, and also from an order entered' in said clerk’s office on-- the 19th day of June, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Charles A.-Cowen & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of April, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the L. A. Thompson Scenic Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1908, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 30th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeals by the plaintiffs, Thomas J. O’Donohue, Jr., and others, respectively, from separate judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York in each case on the 5th day of February, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term, as amended in each case by an order ■ entered on the 27th day of February, 1908, with notice of an intention by each appellant to bring up for review the order amending the judgment appealed from.</p>

<p>Crime — sale of cocaine contrary to section 405a Penal Code — evidence —res inter alios acta — proof of other sales by defendant.</p> <p>A judgment of conviction for selling cocaine without a physician’s prescription contrary to section 405a of the Penal Code will be reversed where the prose- • cuting attorney against objection stated in opening that a number of people’ addicted to the use of cocaine were taken out of Chinatown by the police, and the court against' objection allowed proof of said fact and allowed the prosecuting attorney to bring the matter before the jury when summing up.</p> <p>So, too, it is reversible error to admit evidence that the defendant had made other sales of cocaine prior to those for which he was indicted. This, because ' as the intent of the defendant is immaterial, evidence of other crimes was improper, and, second, because some of the other sales were made before the act was made a crime.</p>

Appeal by the defendant, Henry Bock, from an order of the Supreme Court, madé at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of November, 1908, denying the defendant’s motion to vacate an order for his examination before trial.

Appeal by the defendant, The Hudson River Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 1st day of June, 1908, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 3d day of June, 1908, as amended by an order entered on the 15th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by-the defendant, Arthur Stuber, one of the city marshals of -the city of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 25th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Adolf Gans, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of April, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Ellen F. Grealish, as administratrix, etc., from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 1st day of July, 1908, granting the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff for $4,000, and'for a new trial made upon the minutes.</p>

<p>Negligence — injury to passenger on street car—collision of car with, obstruction placed by contractor making repairs — evidence identifying defendant — trial — limiting cross-examination— evidence — competency of witnesses — form of charge — duty of railroad to employ flagman.</p> <p>The plaintiff, a passenger upon a car crossing the Brooklyn bridge, was injured ■ by the breaking of the car window by a girder which was being placed by a contractor making changes in the platform at one end of the bridge. Both the railroad company and the contractor were made parties defendant. Evidence examined, and held, sufficient to justify the jury in finding that the contractor was doing the work which resulted in the injury.</p> <p>It is not reversible error to- exclude cpiestions on cross-examination which merely call for the repetition of testimony already given.</p> <p>On the issue as to whether the defendant contractor was actually doing the work on the bridge which caused the plaintiff’s injury, a civil engineer in the municipal department of bridges is competent to testify of his own knowledge that the contractor worked at the locality on certain days, although unable to say whether the men engaged on the particular wprk which caused the plaintiff’s ' injury were employed by that contractor or not.</p> <p>The court is not bound to charge every request of a party, even though it abstractly states the law; and if the charge as a whole makes clear the respective rights and duties of the parties it is not error to refuse to charge the substance in another form.</p> <p>When the court without objection has correctly charged that the jury must determine the negligence of the defendant on all the facts and circumstances and has further charged at the defendant’s request that the'jury in determining whether the defendant railroad was negligent in not stationing a flagman at the point might take into consideration the fact that the contractor had not given notice that he intended to do anything to obstruct the railroad, the defendant was. not entitled to a specific charge that the railroad owed no duty to employ a flagman, for that matter was a question for the jury on all the evidence.</p> <p>A railroad is under no legal duty to station a flagman at any point unless required to do so by statute or municipal ordinance, and the question as to whether it was negligent in failing to employ a flagman at any particular point is a question for the jury to be determined in tlieligbt of the surrounding circumstances.</p> <p>Gaynor, J., dissented in part, with opinion.</p>

<p>Debtor and creditor—bills and notes — composition with debtor after acceptance of. note—liability of creditor when debtor has been compelled to pay holder — principal and agent—facts showing authority to make composition with debtor.</p> <p>Where a creditor having accepted a promissory note as security for part of the debt and negotiated the same, makes through his agent a composition with the insolvent debtor by which he agrees to accept a percentage of his claim in full settlement, he is thereafter bound to protect the debtor on the note when it becomes due, and is liable to the latter when.he has been compelled to pay the note to the creditor’s transferee. -</p> <p>Evidence examined, and held, that the persons whom the defendant left in charge of his business when leaving the country had authority to enter into a composition agreement with the debtor.</p>

Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 1st day of December, 1908.

<p>Appeal by the defendant, Louis Cinberg, from an order of the Supreme Court, made at the Kings County Special Term and entefed in the office of the clerk of the county of Kings on the 10th day of July, 1908, granting the plaintiff’s motion for sp injunction pendente lite, and also from an order entered in said clerk’s office on the 17th day of July, 1908, modifying the first order»</p>

Appeal by the defendants, James Matthews and another, doing business under the firm name, etc., from a judgment of.thé Municipal Court of the city of Dew York in favor of the plaintiff, entered upon the verdict of a jury.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury,

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. The plaintiffs and one Lexow made a. contract by which, the former agreed to convey to the latter for $175 an acre a tract of land in Suffolk County bounded “ On the north in part by biorth Country Road, Bonkonkoma Boad, and land formerly of C. Edward Hawkins Estate; bn the East by land formerly of Alfred W. Mills, C. Edward Hawkins.

<p>Municipal corporation — tort — injury to property by surface waters — evidence not justifying recovery.</p> <p>Action against a city for inj uries to property alleged to have been caused by the flooding of the plaintiff’s cellar. Evidence examined, and held, too improbable to support a judgment for the plaintiff.</p>

Appeal hy the plaintiff, Sadie Brennan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 16tli day of June, 1908, dismissing the complaint, and also from an order entered in said clerk’s office on the 27th day of April, 1908, setting aside the verdict of a jury in favor of the plaintiff and granting a motion for a new trial made upon the minutes, and a motion to dismiss the complaint, decision…

Appeal by the plaintiff, Irving L. Brayman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Delaware on the 1st day of June, 1908; upon the dismissal of the complaint by direction of the court at the cióse of plaintiff’s case upon a trial at the Delaware Trial ■ Term.

<p>Municipal corporations — negligence —notice to cities of second class.</p> <p>As a condition precedent to a suit against a city of the second class to recover for personal injuries, the plaintiff must serve not only the notice of the injury and of the defect for which the city is claimed to be liable, as required by section 461 of chapter 182 of the Laws of 1898, as amended by chapter 504 of the Laws of 1904, hut also within six months after the cause of action has accrued, must file with the corporation counsel a notice of intention to commence action as required by chapter 572 of the Laws of 1886.</p> <p>The service of a notice upon the common council complying with the Laws of 1898, but containing no notice of an intention to sue, is not equivalent to the notice to the corporation counsel required by the Laws of 1886, and' when there has been no timely service of the latter notice there can be no recovery.</p> <p>Chester and Kellogg, JJ., dissented.</p>

Appeal by the defendants, Theron E. Bumrill and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eulton.on the 11th day of February,/1908, upon the verdict of a jury rendered by. direction of the court after a trial at tlié Fulton Trial Term. The action is upon two promissory notes, each of them dated December 3, 1901.

Appeal by the plaintiff, The Bennett Piano Company, from a judgment of the County Court of Schoharie county in favor of the defendant, entered in the office of the clerk of said county on the 8d day of October, 1908, upon an order bearing date the 10th day of February, 1908, and entered in said clerk’s office affirming a judgment of a justice of the peace of the town of Schoharie.

Appeal by the plaintiff, William H. Plumb, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 20th day of April, 1908, upon a nonsuit granted by the court at the close of the plaintiff’s case, upon a trial at the Franklin Trial Term, and also from an order dismissing the complaint.

Appeal by the plain tiff, Charles H. Reynolds, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chenango on the 22d day of April, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Chenango Trial Term, and also from an order entered in said clerk’s office on thé 6th day of September, 1907, denying the plaintiff’s motion for a new trial…

Appeal by the defendant, The City of Watervliet, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 1st day of October, 1908,. upon, the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made' upon the minutes.

Appeal by the defendant, Olin W. Wood, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 10th day of September, 1908, allowing the plaintiffs, after two unsuccessful trials of the action, to serve an amended complaint upon payment of costs.

Appeal by the plaintiff, Wesley Allter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 30th day of June, 1908, upon the decision of the court rendered after a trial at the Montgomery Trial Term before the court without a jury. ' The plaintiff having failed to comply with a notice of the defendant’s trustees requiring him to construct a sidewalk in front of his premises, said trustees in…

Appeal by the defendants, Warren D. Walker and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 19th day of December, 1907, upon a decision of the court rendered after a trial at the Franklin Trial Term before the court' without a jury. This is an action to foreclose a bond and mortgage on real estate executed by the defendants to the plaintiff August 4, 1902.

Appeal by the defendant) The Ceiitral Yew York Telephone and Telegraph Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 27th day of November, 1907, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 18tli day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Naylor, Jr., from a judgment of the County Court of Sullivan county in favor of the defendant, entered in the office of the clerk of said county on the 7th day of Hay, 1907, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of County Court, and also from an order entered in said clerk’s office on the 5th day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Robert E. Whalen, from bo much of an interlocutory judgment of the Supreme Court in favor 'of the defendant, entered in the office of the clerk of the county .of Sara-toga on the 6th day of October, 1908, upon the decision ’of the court, rendered after a trial at the Saratoga Special Term, as overrules the plaintiff’s demurrer to the fourth and fifth defenses in the amended answer.

Appeal by the defendants, William B. Adamson and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 25th day of July, 1908, upon the decision of the court rendered after a trial before the court without a jury at the Warren Trial Term.

Appeal by the plaintiff, Henry Clay Douglass, from a judgment of the County Court of Tompkins county in favor of the defendant, entered in the office of the clerk of said county on the 16th day of July, 1908, pursuant to an order entered in said clerk’s office on the 16th day of July, 1908, reversing a judgment of a justice of the peace of the town of Dry den in favor of the plaintiff.

Motion by the plaintiff, George Meneely, for a reargument of an appeal by the defendant from a judgment in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 8th day of May, 1908, upon the verdict of a jury for $450, and also from an order entered in said clerk’s office on the 7th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes. (See 128 App. Div. 799.)

Appeal by tbe defendant, Solomon Mehrbach, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of tbe county of Albany on tbe 18th day of February, 1908, upon tbe report of a referee.

Cebtiobabi issued out of the Supreme Court and attested on the 1st day of June, 1908, directed to Martin H. Glynn, as Comptroller of the State of Yew York, commanding him to certify and return to the office'of the clerk of the county of Albany all and singular his proceedings had in determining a franchise tax against the relator under section 182 of the Tax Law as amended. (See Laws of 1896, chap. 908, '§ 182, as amd. by Laws of 1907, chap. 734.)

Appeal by the relator, the Town of West Seneca, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 24th day of September, 1908, denying the relator’s motion for an absolute writ of prohibition and dismissing an alternative writ of prohibition previously granted.

Appeal by the plaintiff, the Fulton County Gas and Electric Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 22d day of July, 1908, upon the decision of the court, rendered after a trial at the Fulton Special Term, over, ruling the plaintiff’s demurrer to two separate counterclaims set up in the amended answer.

•Appeal by the claimant, James P. McGovern, from part of an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 17th day of April, 1908, confirming the first separate report of the commissioners of appraisal for section Mo. 6 in the Ashokan reservoir, and also from part of the appraisal and report of the commissioners. The opinion delivered at Special Term is reported in Matter of Simmons (58 Misc.

Appeal by the claimant, James P. McG-overn, from part of an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 15th day of February, 1908, confirming the first separate report of the commissioners of appraisal for section Bo. 7 in the Ashokan reservoir, and also from part of the appraisal and report .of the commissionei's.

Appeal by the defendants, Robert G. Hall and others, as assessors, etc., from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 29th day of January, 1908, striking from the assessment roll of the town of Canajoliarie an assessment of $500 as the value of real estate of the relator and awarding costs to the said relator against the town.

Appeal by the defendants, Elizabeth M. Byrne and others, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New Tork on the 26th day of March, 1908, upon the report of a referee appointed by consent and with the approval of the surrogate, pursuant to the provisions of section 2718 of the Code of Civil Procedure, to hear, try and determine a claim presented by the plaintiffs.

Appeal by Sidney J. Cowen, as committee, etc., of Mary -Ann Dunn, an incompetent, from an order of the Supreme Court, made at tlie Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 12th day of Decembers 1908, requiring him to render an account from the date of his appointment to April 3, 1883.

<p>Pleading — bill of particulars—when sufficient compliance with order.</p> <p>There is a sufficient compliance with an order requiring a bill of particulars as to the negligence of a defendant in failing to promulgate and enforce proper rules and regulations for the safe conduct of its business, where the plaintiff states that the defendant failed to promulgate any rules or regulations and failed to enforce any rules or regulations in respect to the running of its machine and in respect to the times and under what circumstances or conditions people were allowed to work in and about the same.</p>

Appeal by the defendant, David Bodbell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of April, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 14th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.-

Appeal by the plaintiff, Louis B. Hasbrouck, as executor, etc., and the defendants, May Aletta Knoblauch and another, from part of a judgment of the Supreme Court, entered in the office of the-clerk of the county of Mew York on the 26th day of May, 1908, upon the decision of the court rendered after a trial at the Mew York Special Term, construing the will of Henry W. Bookstaver, deceased.

Appeal hy the defendant, .the Union Railway Company of Hew York City, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 8th day of June, 1908, setting aside as inadequate a verdict of the jury in favor of the plaintiff and granting a hew trial.

Appeal by the plaintiff, Besse C. Clark, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county'of New York on the 23d day of November, 1908, dismissing the. complaint and granting the defendant’s motion fora judgment on the pleadings, and also from a judgment entered in said clerk’s office on the 27th day -of November, 1908, pursuant to said order.

Cboss-appeals by the plaintiff, Samuel M. Brickner, and by the defendants, Joseph H. Sulzbacher and another, composing the firm, etc., from portions Of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the County of New York on the tth day of December, 1908, as resettled by an Order entered on the 18th day of December, 19Ó8.

Appeal by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of December, 1908, discharging and canceling of record a notice of pendency of proceeding.

<p>Appeal by the plaintiff, E. E. Yreeland, from an order- of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of'Hew York on the 11th day of December, 1908, vacating a warrant of attachment and setting aside a judgment.</p>

<p>Appeal by the plaintiff, Albert Bussell Brandly,' from an ol’der of tliej Supreme Obuft, made at the New York Special Term aiid entered in the office of the clerk of the county of New York on the 20th day of' November,'1908, granting the defendant’s motion tb vacate a warrant: of attachment and the levy made thereunder.</p>

Appeal by the defendant, The Brooklyn Daily Eagle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of April, 1908, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 20th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

„ Appeal by the defendant, Sophie Marcháis La Gfavej from an order of the Supreme Court, made at the Hew York Special Term and- entered in the office of the clerk of the county of Hew York on the 6th day of July, 1908, denying the said defendant’s motion to set aside a notice of appearance by attorneys.

<p>Principal and agent — broker’s action for commissions-^— proof necessary to recovery where proposed exchange of lands not executed — evidence —defenses — defect in title—waiver.</p> <p>To entitle a real estate broker to commissions he must procure a customer not only willing but able to purchase his client’s property upon the terms fixed by the client, which rule applies also to a proposed exchange of real estate.</p> <p>Where no exchange has been consummated, a broker suing for commissions must show that the customer produced by him was the owner of the property offered in exchange and that after the terms of the exchange had been agreed upon, his principal refused to carry them out. This, because where no exchange has been made the principal is presumed to have bargained for a marketable title.</p> <p>It seems, however, that the rule is different where the exchange has been actually consummated, for if the principal sees fit to accept the property offered in exchange, whether the title be good or not, the broker has earned his commissions.</p> <p>Hence, where the contract of exchange has not been executed, a principal sued for commissions who denies that the customer produced by the broker was able to exchange, is entitled to show that the customer had- already conveyed a portion of the premises, was not the owner of all the lands embraced in the proposed exchange and that they were incumbered by a party wall.</p> <p>Where the defendant denies that he made any contract to exchange he may take thei defense that the broker did not produce a person having good title to the property offered in exchange, although he did not raise that objection during the negotiations for exchange.</p> <p>Moreover, if it be assumed that the principal was bound by the rule that objections not specified are deemed to have been waived, a failure to object on the ground that the lands were incumbered with a party wall is not a waiver because the defect could not have been cured.</p>

<p>Appeal by Samuel Rosenfeld, as receiver, etc., from an order of the Supreme Court, made at the Row York Special Term and entered, in the office of the clerk of the county of Rew York on the 20th day of Rovember, 1908, denying a motion to amend an interlocutory judgmentnunc pro tuno.</p>

<p>Assignment — assignments of pledged stock to different parties — when first assignee has better title — conversion — partnership — when partner may sue copartner for conversion of property not owned by partnership.</p> <p>Where one who has pledged stock to secure the payment of a debt makes a formal assignment thereof to a third party who notifies the pledgee of the purchase, thei pledgor has parted with title and cannot thereafter give title to the pledgee in consideration of a release from the debt.</p> <p>Hence, where the assignee tenders the amount of the debt to the pledgee, he is entitled to receive the stock and may maintain an action for conversion if the pledgee refuses to deliver.</p> <p>Such action for conversion lies although after the original owner of the stock had purchased it from the defendant and pledged it to secure part of the purchase price, her subsequent assignee and the pledgee entered into a joint venture in the nature of a partnership by which they were to share in certain profits from similar stock held in escrow, for the stock sold to the plaintiff’s assignor was not part of the partnership property, and the plaintiff as assignee thereof is not within the rule which prohibits a partner from suing his copartner for conversion.</p> <p>This is true, although by said partnership agreement the assignee guaranteed to his copartner that the purchase price of said stock should be paid, for as guarantor he was entitled to pay the debt and take.up the collateral without.violating any duty to his copartner, the transaction being in exact accordance with the- agreement between them.</p>

<p>Tort — conversion—injury to personal property —failure to prove damage— new trial — practice — when formal order of dismissal unnecessary — appeal — partnership — liability for tort.</p> <p>Action to recover for the conversion of merchandise and for wrongful injury thereto. Evidence examined, and held, to be toó indefinite to justify the amount of the recovery, or to make it possible to reduce the verdict as a condition for denying a motion for a new trial which, therefore, was properly granted.</p> <p>As a ruling at trial dismissing the complaint as to one of two defendants is . sufficient authority for the entry of a judgment to that effect, no formal order being necessary, an appeal from a formal order will be dismissed.</p> <p>While one partner is liable for the torts of another committed in the course of the partnership business or for unauthorized torts subsequently ratified, there can be no judgment against a party not participating in the wrongful act in the absence of proof that a partnership existed or that there was a subsequent ratification of the act.</p>

<p>Appeal by the defendant, Frank Seaman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 15th day of April, 1908, upon the decision of the court, rendered after a trial at the Yew York Special Term, directing a referee to take and state an account of certain dealings and transactions between the defendant and the Yational Gramophone Corporation and the Yational Gramophone Company.</p>

Appeal by the plaintiff, John Convey, from an order of. the Supreme Court, made at the blew York Trial Term and entered in the office of the clerk of the county of blew York on the 18th day ■of March, 1908, setting aside the verdict of a jury in favor-of the plaintiff for $1,500 and granting a new trial.

Appeal by the defendant, J. Thomas Reinhardt, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of November, 1908, opening a default of the plaintiff herein, vacating the judgment entered on the default and restoring the cause to the calendar.

Appeal by the plaintiffs, Edward Yalk and others, from a judgment of the Supreme Court in favor of the defendant, entered m the office of the clerk of the county of Hew York on the 12th day of May, 1908, upon the verdict of a jury, and also from- an order entered in said clerk’s office on the 26th day of May, 1908, denying the plaintiffs’ motion for a new trial made upon the minutes. ,

Appeal by defendants, George J. Gould and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York, denying the defendants’ motion to dismiss the complaint; and also an appeal by plaintiff from the same order in so far as. it denies his motion to amend the summons and complaint.

Separate appeals by Sara Gans Hackes and others and by Louis J. Hoefner and others, from portions of a final decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 2d day of September, 1908, judicially settling the accounts of the executors of the estate of Louis Gans, deceased. For opinions of surrogate see Matter of Gans (60 Misc. Rep. 282; N. Y. L. J., Aug. 19, 1908; Id. Sept. 1, 1908).

Appeal by the defendant, Louis Frankel, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1908, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 4th day of May, 1908, denying the defendant's motion for a new trial made upon minutes.

Appeal by tlie plaintiff, Samuel Thompson Banes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of December, 1907, pursuant to an order entered in said clerk’s office on the 24th day of December, 1907, confirming the report of a referee and dismissing the complaint; and also from the said order pursuant to which judgment was entered.

Appeal by the plaintiff, Orlando W. Yorcross, from a judgment ■ of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the' county of Yew York on the lltli day of -March, 1908, upon the dismissal of the complaint by direction of the court upon a trial at the Yew York Trial Term, as to all claims or causes of action except certain money alleged in the complaint and admitted in the answer to be due.

Appeal by the plaintiff, Rudolph Klein, from so much of a judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Kew York oh the 28th day of August, 1908, upon the report of a referee, as disallowed a certain claim against the estate of Charles E. Bunk, deceased.

<p>Husband and wife — separation agreement — principal and agent — when husband not bound by attorney’s agreement to pay wife’s debts — implied authority of agent — attorney and client — power to hind client.</p> <p>During negotiations for a separation agreement between husband and wife, the husband, through his attorney at law, presented to his wife for signature articles of separation, wherein he agreed to pay to her attorney as .trustee a certain sum monthly for her maintenance, and also the Sum of §25,000,. out of which was to be paid all claims of the wife’s attorneys for legal services, and also all debts contracted by the wife which would be a charge against the husband. The wife refused to sign the agreement if her debts were to be deducted from the §25,000, and her attorney, notifying the husband’s attorney of that fact, insisted that the wife’s bills should be paid by her husband, in addition to the §25,000, stating that his firm would pay the bills “provided you will reimburse us.” The husband’s attorney replied: “We will do that; that is all right.” Thereafter, upon being told by her attorney of this agreement, the wife signed the articles of separation.</p> <p>In an action by the assignor of the wife’s attorney to recover from the husband moneys expended in paying the wife’s debts, held, that any agreement of the husband to pay the wife’s debts did not survive the execution and delivery of the formal agreement of separation which alone measured his liability for said debts; that the oral agreement of his attorney was not a supplemental agreement, and being in violation of the express terms of the written contract was not binding upon him,</p> <p>Where no actual authority of an agent is proved .the jury should not be permitted to hold the principal .on the grounds of apparent authority, unless some act be shown conferring upon the agent an apparent authority under which a third party contracting with the agent is entitled to assume that he had authority.</p> <p>Declarations of an agent, although made in the course of a transaction, are never evidence of authority to act for the principal: but there must be evidence of actual authority conferred or of acts of the principal which justified the other contracting party in assuming that the agent had authority.</p> <p>An attorney at law retained to defend an action for divorce and without power to compromise has no authority under his original retainer to make a contract binding his client to pay a sum of money to his wife.</p>

Appeal by the defendant, the Hew York City Railway Company, from ¡so much of an order of the Supreme Court, made, at a. Term held at chambers in-the county of Hew York and entered in the office! of the clerk of the county of Hew. York on the. 2d day of. December, 1908, as grants plaintiff’s motion to resettle an order granting a new trial . ,

Appeal by the plaintiff, Michael Glennon, as administrator, etc.? from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 27th day of May, 1908, upon the dismissal of the complaint, by direction of the court on a trial at the Mew York Trial Term.

Appeal by the defendant, The Presbyterian Hospital in the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered iu the office of the clerk of the county of Hew Ybrk on the 29th day of June, 1908, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 8th day of Julyj 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Practice'— discontinuing action — when payment of extra allowance not required—redress for criminal prosecution.</p> <p>Leave to discontinue an action brought to recover damages for an alleged conspiracy in excluding the plaintiff from certain theatres so as to prevent him from pursuing his avoca.tion as a dramatic critic, should not be conditioned upon the payment of an extra" allowance of $500 in addition to the taxable costs.</p> <p>This is so, although the defendant was put to the expense and annoyance "of defending a criminal prosecution instituted by the plaintiff for the same offense, for the latter was an independent action and the defendant, if entitled to indemnification, should seek the same in an action for malicious prosecution.</p>

Appeal by the defendant, the National Elevator Company, from a judgment óf the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York bn the 13th day of June, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said' clerk’s office on the 15th day -of June, 1908, denying the defendant’s motion for a new trial made upon the minutes. ...

Appeal by the defendant, the Ii. A. Rogers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d-day of Hay, 1908, upon the decision of the court rendered ■ after a trial at the New York Special Term. -

<p>Appeal by the defendant, the Edna Smelting and Refining Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of August, 1908, denying the said defendant’s motion to vacate part of a judgment entered in said clerk’s office on the 23d day of May, 1908.</p>

<p>Beal property — conveyance of land bounded by exterior line of street — when fee to bed of street does not pass—- extinguishment of private easements on closing street under chapter 1006 of the Laws of 1895 — when subsequent grantee does not acquire easements.</p> <p>Where a conveyance bounds lands by the exterior line of an abutting street instead of by the street itself, the fee of the street does not pass to the grantee unless there be circumstances indicating a different intention.</p> <p>Where a street is closed under chapter 1006 of the Laws of 1895, not only public but private easements are extinguished, contrary to the common-law rule. Hence, where an owner subsequently conveys lands bounded by the exterior line of the former street his grantee obtains no private easement of light, air and access.</p> <p>Such private easements over lands embraced in the closed street are not recreated by the grantor, merely because in describing the property he makes a reference to an old map on which the former street was delineated, where the old street had been discontinued at the time of the conveyance and the bed thereof had been inclosed by a fence running on the exterior line of the street and used by the grantor as a garden.</p> <p>The question of whether or not a grantor conveying property bounded by a street grants easements therein is one of intention tó be ascertained not from the description alone, but from the visible condition of affairs when the conveyance was executed.</p>

Appeal by the defendant, Levi 0. Weir, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeals by the defendants, the American Badiator Company and others, from parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 10th day of June, 1907, upon the decision of the court rendered after a trial at the Hew York Special Term.

<p>Will construed — when no unlawful suspension of power \of alienation — when whole will not affected by invalidity of part — vendor and purchaser — specific performance.</p> <p>Where a will places a portion of the residuary estate in trust the income to be paid to the testator’s brother'for life and at his death the corpus to be divided into shares equal to the number of the brother’s cMhfien surviving him or dying leaving,issue surviving, each nephew or niece of full age to take one share, with a further provision that the share of any child of the life tenant who shall not at the time of his death have attained majority, shall continue to be held in trust until majority, and then be turned over, the income in the meanwhile to be paid to the minor, and further providing that if' any minor child of fhe life tenant dies-before majority without lawful issue his share shall-be equally divided and added to the shares of his surviving brothers and-sisters, or the issue of those who have died, each infant child surviving the life tenant takes at once an estate in expectancy to be held in trust for his minority, subject to be divided only if he die during infancy without issue.</p> <p>. As eacli infant child of the life tenant takes a defeasible estate at the life tenant’s death; and as in case of the death of such child during minority without issue, his share is to be divided and added to the shares of the surviving brothers and sisters, and as there is no direction to hold the share of any child longer than the date of his majority, or earlier death, there is no unlawful suspension of the power of alienation on the theory that if two minors should die without issue, the power of alienation would be suspended for three lives and a minority, to wit, the lives of the life tenant, the two infants dying without issue and the minority of a third.</p> <p>Even if the devises contingent on the death of an infant child of the life tenant without issue be deemed to suspend unlawfully the power of alienation, the' offending clause may be cut out of the will without disturbing the harmony of the other provisions or affecting the purpose of the testator, which was merely to create a trust for the life of the brother, with remainders to his issue per stirpes, the provision.that the shares of infants be held by the trustee dur- . ing a minority being merely a convenient way of bridging that period so that each child on arriving at age should take his share outright.</p> <p>A vendee who has agreed to purchase lands held by the trustees under said will and who rejects title solely upon the ground that there was an unlawful suspension of the power of alienation, will be required specifically to perform although persons having an interest in the construction of the will are not made parties, where there are no disputed questions of fact.</p> <p>Submission of a controversy upon an agreed statement of- facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendants, Edward Deegan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of the county of New York on the 16th day of March, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 17th day of March, 1908, denying.the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, George Kemp, from an order of the Supreme Court, made at the New York Special Term and entered ■ in the office of the clerk of the county of New York on the 7th day of January, 1909, denying the defendant’s motion to vacate an order directing that an execution issue under section 1391, of the Code of Civil Procedure.

Appeal by the defendant, Williaiñ 0. Lesster, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9tli day of November, 1908, striking out part of the defendant’s answer as irrelevant.

Appeal by the plaintiff, William C. Lesster, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of June, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s Office on the 26th day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

.Appeal by the plaintiff, Clarence L. Barber, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 25tlx day of January, 1909, directing a compulsory reference under section 1013 of the Code of Civil Procedure.

Appeal by the plaintiff, Clarence L. Barber, from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 25th day of January, 190.9, directing a compulsory reference under section 1013 of the Code of Civil Procedure.

Appeal by the plaintiff, Mark H. Eisner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day of October, 1908, upon the dismissal of the complaint by direction of the court at the beginning of the trial at the Hew York Trial Term; also from an order entered on the 13th day of October, 1908, direct-ting the dismissal of the complaint, and also from an order entered in said clerk’s office…

<p>■ Appeal by the plaintiff, the Electro-Tint Engraving Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 26th day of December, 1908.</p>

Appeal by the defendants, Ranald H. McDonald and another^ copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of June, 1908, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of June, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, David Perlman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of New York on the 22d day of June, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Jacob Binder and another, doing business under the firm name of Binder & Baum, from a judgment of the Supreme Court in favor of the plaintiff, entered ill the office of the clerk of the county of Mew York on the 24th day of January, 1908, upon the verdict of a jury for $3,0e00, and also from an order entered in said clerk’s office on the 16th day of January, 1908, denying the said defendants’ motion for a new trial made upon the minutes.</p>

<p>Attorney and client—disbarment—repayment of funds misappropriated.</p> <p>A proceeding to disbar an attorney for converting his client’s money will not be dropped merely because he has repaid the money and the client has withdrawn the charge.</p> <p>Such a proceeding cannot be used to enforce the collection of claims against an attorney.</p>

<p>Appeal by the plaintiff, Charles Schwartz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of December, 1906, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 21st day of December, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Charles A. Weber, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York in favor of the plaintiff, rendered on the 13th day of March, 1908, convicting the defendant of grand larceny in the first degree, and also from orders denying the defendant’s motions for a new trial and in arrest of judgment.

<p>• Appeal by the defendants, Charles D. Halsey and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of - the clerk of the county of Hew York on the 27th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Master and servant-—Employers’ Liability Act—- insufficient notice — erroneous charge — modification not curing error.</p> <p>The purpose of a notice served under the Employers’ Liability Act is to acquaint the employer with the particular negligent act for which it is proposed to hold him .liable and thus enable him to make the necessary inquiries so that he can settle the claim without action or, if action be brought, properly -present his defense.</p> <p>A plaintiff suing his master to recover for injuries received by the negligent operation of an elevator does not bring his case within the Employers’ Liability Act by a notice which states that the defendant was negligent in that it failed to furnish a reasonably safe place and appliances in and with which to work and to safeguard and inspect the same, and knowingly employed incom- . petént foremen and workmen and failed to formulate and enforce proper rules, as the result of which the plaintiff was permitted to fall, etc. This, because there is no statement of the particular act of negligence of which the plaintiff complains.</p> <p>In such action it is error to charge that if the foreman ordered the plaintiff to descend by the elevator and gave a signal to descend rapidly, his act was negligent and binding upon the defendant so that plaintiff is entitled to recover, for the question as to whether the order of the foreman was negligent is a question, not of law, but of fact for the jury.</p> <p>Such error is not cured where the plaintiff’s counsel, in answer to the defendant’s objection, stated that, while the charge was “correct in substance,” he asked the court to change the form so that the jury might find negligence, instead of being instructed that the act would be negligence, and the court replied: “ I acquiesce in the modification.” This, because the court assented to the statement that the charge was correct in substance,</p> <p>Where a jury has been erroneously instructed as to the law applicable to the facts, the error can be cured only by the trial justice withdrawing the charge as made in language so plain and explicit as to preclude an inference that the jury may have been influenced by it.</p>

Appeal by the plaintiff, William Carter, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lltlx day of February, 1909, directing the plaintiff to pay a certain sum incurred by the referee, or, in default, that a commitment issue.

Appeal by the plaintiff, Edith D. Clark, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York oh the 11th day of December, 1908, denying the plaintiff’s motion to punish the defendant for contempt for his failure to pay alimony.

Appeal by the defendant, Ignatz Klein, from an interlocutory judgment of the Supreme Court in favor of the plaintiff* entered in the office of the cleric of the county of New York on the 4th day of November, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

<p>Appeal by the defendant, the Hudson Trust Company, from a judgment of the Supreme Court in favor .of the plaintiff, entered in the office of the-clerk of the county of Hew York on the 16th day of June, 1908, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term.</p>

<p>Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 10th day of July, 1908, as amended, upon the decision of the court, rendered after a trial at the Hew York Special Term,, sustaining the defendant’s demurrer to the amended complaint.</p>

Appeal by the plaintiff, Alma IT. Potter, as administratrix, etc., from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk óf the county of Dew York on the 14th day of December, 1907, upon the decision of the court, rendered after a trial at the Dew York Special Term, sustaining the defendant’s demurrer to the complaint.

Separate appeals by Eugene' L. Bushe, as surviving executor, etc., and by Virginia Zerega and others, from a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 15 th day of October, 1908, granting letters of administration with the will annexed upon the estate of M. Amelia Bedford, deceased, whereof Frederick Bedford, deceased, was the sole surviving executor.

Appeal by Maynard-M. Clement, as State Commissioner of Excise, from so much of an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 18th day of December, 1908, as grants the application of John Jennings and others to be made parties respondent in a proceeding for the revocation of a liquor tax certificate, and permits them to serve answers and stays the trial of the proceeding in the meantime.

Appeal by the plaintiff, Louis J. Pooler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 4th day of April, 1908, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, The Roxbury Distilling Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of January, 1909, denying the defendant’s motion to vacate a warrant of attachment.

<p>Railroad — effect of expiration of charter upon secondary franchises granted hy municipality — constitutional law — municipal franchises acted upon are property.</p> <p>Although the corporate existence of the Hew York and Long Island Bailroad lapsed by reason of its failure to complete its -railroad and tunnel before the 1st day of January, 1907, the special or secondary franchises, rights and privileges granted by the board of aldermen of the city of Hew York, permitting the construction of a roadbed and tunnel along and under the city streets, did not lapse and revert to the city, but, on the contrary-, passed to-the trustee for the creditors and stockholders of the railroad by reason of the fact that the company, having nearly completed its road and tunnel and having, expended large sums of money to that end,, has acted upon said secondary franchises so that they became property entitled to protection under the State and Federal Constitutions. .</p> <p>Hence, although the charter of said railroad has expired, the trustee for its creditors and stockholders is entitled to an injunction restraining the city of Hew York from interfering with the right to occupy said- tunnel, tracks and ' ■ structures belonging to the railroad.</p> <p>The right to be a corporation and to exercise corporate powers is derived solely from the State, which has.the power to limit the period of corporate existence and to provide conditions precedent or subsequent hy laws existing at the time of its creation, or hy laws subsequently passed, which will-destroy the corporate existence.</p> <p>But the power to create and destroy a corporation does not include a right to appropriate the corporate property contrary to the provisions of the Constitutions. The special or secondary franchise' given by a city to. a railroad, empowering it to use the public streets, if acted upon, is property entitled to constitutional protection. Such right is forfeited on the termination of corporate existehce only where, by reason of nonuser, the consent has not been transformed into a property fight.</p>

Appeal by the defendant, The City of- Mew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ISTew York on the 28th day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Andrew C- Imbrie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 27tli day of July, 1906, upon the report of a referee dismissing the complaint herein.</p>

Appeal by the defendants, Horace Waters & Company, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of .New York on the 4th day of November, 1907, upon the decision of the . court, rendered after a trial at the New York Special Term, adjudging the issuance of certain shares of stock of the defendant Horace Waters & Company to be illegal, and decreeing that they be delivered to the corporation for…

Appeal by the plaintiff, Harry Sittig, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of August, 1907, denying the plaintiff’s motion for a bill of particulars.

<p>Contract — cab license — injunction — when remedy at law adequate.</p> <p>An agreement by a hotel company purporting to lease the privilege of carriage service for the hotel for a specified sum is not a lease, but a license.</p> <p>Where such license was not exclusive and it is not shown that irreparable damage will ensue from a breach thereof, and. the license has been surrendered by one of the licensees, the plaintiS’s partner, his suit for an injunction restraining the hotel from granting a like license to other parties does not lie, for if there was any breach of the agreement the remedy at law is adequate.</p>

<p>Pleading — sufficiency of complaint in action to recover commissions on goods sold under trade name.</p> <p>Action upon a contract whereby the defendant agreed, to pay the plaintiff commissions on sales of lard made under a certain trade name owned by the plaintiff. Complaint examined and held, that it should not have been dismissed on ■ the theory that it failed to show that the sales upon which commissions were demanded were made during the life of the contract.</p>

Appeal by the defendant, Levi 0. Weir, as president,, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the cleric of the county of Hew York on the 5th day of June, 1908, reversing a judgment of the Municipal Court of the city of Hew York,, borough of Manhattan, in favor of the plaintiffs, entered on the 30th day of September, 1907.

Appeal by The City of. Hew York from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the .county of Hew York on the 18th- day of; .December, 1908.

<p>Surrogate—practice — enforcing payment of costs.</p> <p>The payment of costs awarded to a special guardian and others on an accounting in the Surrogate’s Court cannot be enforced by contempt proceedings.</p>

Appeal by the defendant, Simon Herzig, individually and as éxecutor, etc., from an order of the Supreme Court, made at the Mew York Special Term, dated the 29th day of January, 1909, and entered in the office of the clerk of the county of Mew'York granting the plaintiffs motion for the appointment of a receiver.

Ceetioeaei issued out of the Supreme Court and attested on the 10th day of September, 1908, directed to Theodore A. Bingham, commissioner of police of the police department of the city of Bew York, commanding him to certify and return to the office of the clerk of the county of Bew York all and singular his acts and proceedings had in regard to the removal of the relator from his position in the police department of the city of Bew York.

Appeal by the plaintiff, Adolph C. Gubner, from, an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on. the 7'th day of December, 1908, denying a motion for an injunction pendente lite, in a taxpayer’s action to restrain the defendant officials from paying any moneys to the Public Service Commission for the first district, and from complying in any manner with the requirements set forth in section…

Appeal by the plaintiff, Lawrence W: H. Vogel, from a judgment of the Supreme Court in favor of the defendant, the Union Railway Company of Hew York City, entered in the office of the clerk of the county of Hew York on the 17th day of May, 1907, upon the dismissal of the complaint by direction óf the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 26tli day of April, 1907, denying the plaintiff’s motion for a new…

<p>Tax—assessment of lots abutting on closed street—“plottage ” defined.</p> <p>Where a railroad has acquired the bed of a closed street which is part of an area upon which it is erecting a large terminal station, the valuation of lots owned by the railroad abutting upon the closed street and included within the boundaries of the proposed station should be assessed as interior lots, not as lots having a frontage on the closed street.</p> <p>“Plottage” is a percentage added to the aggregate value of two or more contiguous lots when held in one ownership as representing an increased valuepertaining to a group of lots by reason of the fact that they admit of more advantageous disposition and improvement than a single lot. pertaining to a group of lots by reason of the fact that they admit of more advantageous disposition and improvement than a single lot.</p> <p>In making an assessment upon a whole city block upon which a railroad is constructing a terminal station, it is proper to add a “ plottage ” value, as the land could be cut up into parcels of convenient size and sold with plottage advantages.</p>

Appeal by the plaintiff, George T. Bacon, from a judgment of the Supreme Court in favor of the defendant, the Montauk Brewing Company, entered in the office of the clerk of the county of Hew York on the 27th day of April, 1908, upon the report of a referee dismissing the complaint as to the said defendant.

<p>Discovery—action against landlord to recover moneys deposited as security for rent — discovery of books and papers to disprove defenses.</p> <p>An assignee of a tenant who has been evicted, suing to recover moneys deposited as security for rent, is not entitled to an inspection of the landlord’s books and papers in order to disprove a defense that the money is retained because the tenant made a breach of his covenant to pay taxes and keep the premises in repair, whereby the landlord was entitled under the agreement to . retain the deposit as liquidated damages, and that the landlord had a right of offset for moneys expended by him in making repairs.</p> <p>This, because if the tenant failed to perform his duty to make repairs, the landlord was entitled to damages measured by the reasonable cost of making the repairs, regardless of whether he had expended money in so doing.</p> <p>It is immaterial that the landlord’s hooks and papers would probably show that the hotel had been occupied and that large profits were made since the plaintiff’s assignor’s eviction, because that fact has no bearing upon the question as to whether the tenant performed the covenants prior to his eviction.</p>

Appeal by the defendant, The Mechanics and Traders’ Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entéred in the office of the clerk of the county of New York on the 16th day of March, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 17th day of March, 1903, denying the defendant’s motion-for a new trial…

Appeal by the defendant, Francis J. Dudenhansen, from a. judgment of the Court of General Sessions of the Peace in and for the county of Hew York in favor of the plaintiff, rendered on the 27th day of May, 1908, convicting the defendant of a violation of the Public Health Law.

Appeal by the plaintiff, Edward Corning, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York oil the 4th day of April, 1908, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, the Federal Union Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county .of Hew York on the 7th day of July, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.

Sep abate appeals by the defendants, Eva Sofranski and. another, from certain parts of a judgment of the Supreme Court in favor of the plaintifE, entered in the office.of the clerk of the county of Rew York on the 1st day of April, 1908, upon the decision of the court rendered after a trial at the Rew York Special Term.

Appeal by the plaintiff, The Oity of New York, from a judgment of- the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of June, 1908, upon the decision of the court rendered at the New York Trial Term on an agreed stipulation of facts, dismissing the complaint upon the merits.

Appeal by the plaintiff, A. Schwoerer & Sons, Incorporated, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Hew York on the 25th day of January, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Hew York Trial Term.

<p>' Appeal by the plaintiff, Stephen Farrelly, as receiver, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the. 4th day of August, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.</p>

<p>Real property — vendor and purchaser — contract of sale construed — marketability of title—incumbrances not specified — stipulation that rights of action, survive bankruptcy..</p> <p>An agreement to convey an undivided one-quarter interest in a contingent remainder in certain lands free and clear of all incumbrances, except a prior life estate and two specified mortgages covering the entire property, is not a contract to sell merely the right, title and interest of the remainderman, but is a contract to sell his undivided interest in the remainder free of all incumbrances except those specified.</p> <p>Hence, where the lands are subject to the easement of a party wall and certain restrictive covenants in addition to the incumbrances specified in the contract, the vendee will not be required to perform specifically and it is error to dismiss his counterclaim seeking to recover the earnest money and the expenses of examining the title.</p> <p>Where, at the time of making the contract, the vendee was aware of the fact that the vendor’s remainder vras contingent upon the death of the life tenant without issue, and was- also aware that at the time she was a woman upwards of sixty-nine years of age and had no children, the contract must be deemed to have been made with an Understanding of the situation, and the vendee cannot claim that the title was unmarketable by reason of the contingency.</p> <p>Where the vendor agreed not to oppose the vendee’s discharge in bankruptcy in consideration of an agreement by him that the discharge should nót bar a recovery on the vendor’s cause of action under the contract of sale and that the agreement should not be construed as an admission of liability by the vendee or bar any recovery by him in any action which might be brought against him by the vendor upon such contract, the questions as to whether the vendor could complete his contract and whether he was liable to the vendee for the earnest money were left open to be determined in an action brought by either party.</p>

<p>Appeal by the defendant, J. B. & J. M. Cornell Company, 'from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 31st day of March, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 3d day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

• Appeal by the defendant, The Long Island Railroad Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of July, 1908, setting aside the veiv diet of a jury in favor of the plaintiff and granting the plaintiff’s motion for a new trial on the ground of insufficient damages.

Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the City of Bew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bew York on the 3d day of February, 1908, upon the report of a referee dismissing the complaint herein.

Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the City of Ne.w York, from a judgment of, the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of February, 1908, upon the report of a referee dismissing the complaint herein.

<p>Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of New York on the 3d day of February, 1908, upon the report of a referee dismissing the complaint herein.</p>

Appeal by the plaintiff, The City of Bew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bew York on the 3d day of February, 1908, upon the report of a referee dismissing the complaint herein.-

Appeal by the defendant, Isabella Loring, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day of September, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendants, Joseph Frankel and another,, copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ISTew York on the 3d day of June, 1908, upon the report of a referee.

Appeal, by the defendant, the Queens Land and Title Company, from a judgment of the Supreme Court ■ in favor of the plaintiff j entered in the office of the cleric of the county of New York on the 15th day of October, 1908, upon the decision of the.court rendered after a trial at the New York Special Term.

Appeal by the defendant, Mary O. Franklin, from an interlocutory judgment of the Supreme. Court in favor of the plaintiff. entered in the office of the clerk of the county of Hew York on the 14th day of July, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the said defendant’s demurrer to the complaint. ■

Appeal by the defendants, Hemzour Alyanalcian and another, from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Hew York on the 3d day of July, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiff, John Q. A. Ward, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of October, 1908, directing the plaintiff to furnish a bill of particulars to the defendant Hodges,

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 24th' day of November, 1908, directing the defendant to pay seventy-five dollars counsel fee and twelve dollars and fifty cents per week alimony.</p> <p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Negligence — municipal corporation — injury by turning on hydrant.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 18th day of November, 1908, granting a motion to vacate an order for the examination of defendant before trial.</p>

<p>Negligence — railroad — contributory negligence of drives' of a horse — duty of engineer.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2oth day of November, 1907, upon tor verdict of a jury for §9,875, and also from an order entered in said clerk’i of ice on the 9th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the Assessors of the Town of Minden, Montgomery County, New York, from a final order entered in the clerk’s office of Fulton county on the 29th of January, .1908, striking from the assessment roll of said town a tax of 82,500 against the relator. ,

<p>Venue — change of place of trial — convenience of witnesses.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 16th day of October, 1908, dismissing the complaint unless plaintiff complied with the terms therein mentioned.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 30th day of November, 1908, granting leave to plaintiff to serve an amended complaint.</p>

<p>Motion to amend judgment.</p>

<p>Appeal from an order entered in the Mew York county clerk’s office on the loth day of January, 1909, denying the defendant’s motion to require plaintiff’s attorney to furnish the present address of plaintiff.</p>

<p>Pleading — bill of particulars — restriction of issues. .</p>

<p>Appeal from a judgment of the Supreme Court, rendered on the 19th day of November, 1907, convicting the defendant of manslaughter, and also from an ' order denying the defendant’s motion for a new trial.</p>