Volume 132 — New York Appellate Division Reports

Appeal by the defendant, Samuel Jackson, 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 14th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ralph W. Ashcroft, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of February, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 31st day of October, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Rose Jaffe, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of December, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint. The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of December, 1908, upon the verdict of a jury for $556, and also from an order entered in said clerk’s office on the 26th day of December, 1908, denying the defendant’s motion for a new trial made upon the minutes. The action is for damages for negligence.

Appeal by the defendant Jacob Fink, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of April, 1908, after trial before the court without a jury.

<p>Appeal by the defendant, George W. Channcey, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 12th day of March, 1908.</p>

Appeal by the defendant, Leontine Klein, etc., from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 29th day of June, 1908.

Appeal by the plaintiff, Frederick Jung, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Kings on the 9th day of January, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Principal and agent—personal liability of agent on unauthorized warranty — sale — acceptance — consideration for warranty.</p> <p>The selling agent of a disclosed principal is personalty liable for the breach of an unauthorized warranty.</p> <p>Where a selling agent warrants the quality of mortar after delivery hut before acceptance by the buyer, there is a consideration for the warranty. This, because the sale is not complete until acceptance.</p>

Appeal by the plaintiff, Carl Christman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of July, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint on the merits in an action for the construction of a will.

Appeal by the defendant, Michele Ajello, 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 8th day of May, 1908, upon the verdict of a jury rendered by direction of the court.

Appeal by the petitioner, Calmon Hurwitz, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of February, 1909, denying the petitioner’s motion for a peremptory writ of mandamus.

Appeal by the défendants, Jennie Feinstein, individually and as administratrix, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of November, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiffs, John H. Walbridge and another, as executors, etc., from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 28th day of December, 1908, upon the decision of the court rendered on a trial at the Kings County Special Term, as directs the plaintiffs to pay out of the estate of Clin G- Walbridge, deceased, the sum of $1,500 to the respondent as and for his compensation.

Appeal by the defendant, John A. Casey Company, from a judgment of the Supreme Court in favor.of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of April, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 29th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes. The action is for negligence.

Appeal by the plaintiff, Oscar Wolven, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of June, 1907, upon the dismissal of the complaint, by direction of the court at the close of the plaintiff’s case, on a trial at the Kings County Trial Term.

<p>Appeal by the petitioner, William L. D. O’Grady, from an order of the Supreme Court,- made at the.’Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of February, 1909, denying the petitioner’s motion for a peremptory writ of mandamus as a matter of law and not as a matter of discretion. '</p> <p>The mandamus sought was to the city clerk of the city of Mew York requiring him to request the municipal civil service commission to adopt a rule placing’ all positions in the office of the city clerk of the city of Mew York in the classified service of the civil service of the city, and requiring the municipal civil service commission to adopt such rule, and requiring the mayor arid State Civil Service Commission to approve the same.</p>

Appeal by the relator, Alexander M. Boss, from a final order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Biclunond on the 4th day of February, 1909, dismissing an alternative writ of mandamus as a matter of law, and also from an order made at the Kings County Trial Term and entered in the office of the clerk of the county of Biclunond on the 10th day of December, 1908, setting aside the verdict of a jury…

<p>Partnership — liability of estate of deceased partner — effect of section 758 of the Code of Civil Procedure — motion to substitute representative of deceased partner as party defendant—laches—withdrawal of ' demurrer.</p> <p>The.representative of a deceased partner can he sued on, a. partnership.debt or substituted in the place of the decedent in an action already begun, where Inability to collect from the surviving partners is shown, although the surviving partners are not insolvent and the remedy against them, has not been, exhausted.</p> <p>The former rule that the representative of a deceased partner could not he sued at law by a creditor of the firm, and could be held in equity only when the surviving partners were insolvent and the remedy against them has been exhausted by execution was changed by section 758 of the Code of Civil Procedure providing that the estate of a person or party jointly liable upon contract with others shall not be discharged by his death and that the court may bring in his representative.</p> <p>Said section providing that an estate,of a person jointly liable upón contract with others shall not be discharged by his death does not mean"'that his estate is discharged unless the surviving partners are insolvent..</p> <p>A motion to substitute the representative of a deceased partner as a party defendant should not he denied for laches upon the .ground that the Statute of Limitations has run against the surviving partner where the statute never ran against the deceased partner because of his non-residence.</p> <p>The court may permit a plaintiff to withdraw a demurrer without previous notice to the defendant where it does not work to his prejudice. .</p>

Beargument of an appeal by the defendant, The Munson Steamship Line, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of January, 1908, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 18th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Isidore Friedman, from a judgment of the Court of Special Sessions of the second division of the city of New York in favor of the plaintiff, rendered on the 8th day of June, 1908.

<p>Trial — evidence — list of goods destroyed by fire — proof of value — form of objection where party desires to limit evidence. '</p> <p>In an action to recover for injuries to property caused by a fire started by the defendant’s automobile a list of personal property destroyed,- upon which an insurance company adjusted the loss, is admissible for the purpose of showing ? the articles lost.</p> <p>Even though values set opposite the list of articles destroyed be not competent evidence of their value, as against the person causing the loss, it is not error to admit the list over a general objection of incompetency.</p> <p>A party desiring to limit the effect of evidence must so state in his objection.</p>

Appeal by the plaintiff, Lavinia Rally, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of March, 1909, denying the plaintiff’s motion to compel the defendant to accept a notice of appeal, and also from an order bearing date the 5th day of March, 1909, and entered in said clerk’s office resettling the prior order.

Appeal by the defendant, The Bew York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the ¡ilaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of August, 1908, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 14th day of September, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by .the defendant, Benjamin E. Smythe, as street commissioner, etc., from an order of the Supreme Court,made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of February* 1909, granting a temporary in junction.

Appeal by the petitioner, the Board of Water Commissioners of the Village of White Plains from part of an order of the Supreme Court, made the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 6th day of January, 1908, confirming the report of commissioners of appraisal herein.

Appeal by the defendant, the Newburgh Light, Heat and Power 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 28tli day of December, 1907, upon the report of a referee.

Appeal by the defendants, Abraham Cohen and another, 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. The action was for rent, and the trial justice directed a verdict for the plaintiff.

<p>Master and servant — negligence — liability for acts of person employed by janitor.</p> <p>Where a person employed by the janitor of a building to do his work without the owner’s knowledge or consent threw a board from the roof to the injury of a person below, the owner is liable.</p> <p>Rich, J., dissented.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of Decernbei-, 1907, upon the report of a referee. •'

Appeal by the defendants, George- W. Gregory and another, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, in favor of the plaintiff, rendered on the 6th day of January, 1909, and also from an order bearing date the 30th day of December, 1908, directing substituted service of summons.

Appeal by the defendants, Borman S. Walker, Ji%, and another, doing business under the firm name of Walker Bros., from so much of an interlocutory judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk, .of the county of Biclimond on the 14th day of September, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, as overrules the defendants’ objection to the complaint and sustains the…

Appeal by the defendants, Antonio S. Faillace and another, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of January, 1908, upon the verdict- of a jury for $550, and also from an order entered in said clerk’s office on the same day, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant,'William R. Smith, from an order of the Supreme; Court, made at the Westchester Special Term and entered in the office of the cleric of the county of Westchester on the 4th day of February,. 1909, directing the immediate sale of land under a foreclosure: judgment. -

<p>Deposition—-examination of defendant to frame complaint.,</p> <p>The deposition of a person against whom an action is about to be brought may ' be had only for the purpose of framing the complaint. Hence, a motion for' such examination will be denied where the moving papers show that the plain-' tiff already has knowledge of all the facts upon Which the intended action is to be based. , :</p>

Appeal by the defendant, Mary E. Lee, from a judgment of the - County Court of-Dutchess county in favor of the plaintiff, entered in the office of the clerk of said county on the 22d day of Hay, 1908, upon the verdict of a jury, and also from an order bearing date the 14th day of Hay, 1908, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

<p>Pleading — amendment after trial — terms.</p> <p>After a judgment for the plaintiff has been reversed because of the admission of evidence incompetent under the pleadings, a subsequent amendment making the evidence admissible should be conditioned upon the payment of costs and disbursements in the action to the date of the order, with costs of motion..</p>

<p>Appeal by the defendant, Ralph D. Sloane, from a, judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 28th day of December, 1908.</p>

Appeal by the relator, George W. Bedell, 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 Massau on the . 8th day of January, 1909, dismissing writs of habeas corpus and certiorari.

<p>Real property — deed construed -r provision excepting lands from conveyance — trespass — evidence showing title of defendant — evidence — presumption of grant by long occupancy — adverse possession of salt meadows.</p> <p>Where a grantor excepts from the Conveyance lands within the described boundaries, the exception in the. case of an ambiguity is to be taken most favorably to the grantee. But if the exception he so vague that the lands cannot-be identified nothing is excepted.</p> <p>Deeds are construed the same as other contracts,, and the court, so far as it can, will put itself in the position of the parties and ascertain their intention from the words used, their context and the surrounding circumstances, ■</p> <p>Action for trespass upon lands.. The plaintiff claimed under a deed, including the lands in dispute. The instrument, however, excepted from the conveyance all such meadows, and marshes within the boundaries as have “heretofore been, allotted to and are now owned by particular individuals.” The defendant claimed that the lands upon which he committed the alleged trespass had been allotted in 1654, though he was unable to trace a paper title to' any of the allottees. On all the evidence, held, that the exception Contained in the plaintiff’s deed was- not void for indefiniteness, and that the lands upon which the defendant is alleged to have trespassed had actually been allotted and. were éxcepted from the conveyance.</p> <p>Evidence showing acts of ownership exercised as far back as the memory of man runs is sufficient to justify the presumption of a grant.</p> <p>Evidence held to establish the' defendant’s title by adverse possession.</p> <p>Adverse possession of salt meadows which are incapable of cultivation is estaba lished where the plaintiff and his predecessors for over twenty years made a regular, open and notorious use of the lands by cutting the natural grass therefrom', that being the only use for purposes of husbandry of which the ' land was susceptible.</p>

Appeal by the defendants, Whitfield C. Hewlett, as executor,' etc., 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 Nassau on the 1.6th..day of January, 1909, Upon the decision of the court rendered after a trial at the Nassau Special Term.

Appeal by the plaintiff, Philip J. Coffey, from a judgment of the Supreme Court in favor of the defendants,, entered in the office of the clerk of the county of Kings on the 1st day of May, 1908, upon the verdict of a jury rendered by direction of the court on the defendants’ counterclaim, the complaint having been dismissed by direction of the court at the close of the plaintiff’s case upon -,a- trial at. the Kings County Trial Term, and also from an order entered in said…

Appeal by John J. 0. Barrett, as executor, etc., from an order of the Surrogate’s Court of the county of Dutchess, entered in said Surrogate’s Court on the 14th day of December, 1908, directing the said executor to file his account.

<p>Appeal by the defendants, Maria Wyckoff, individually and as sole surviving executrix, etc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the lltli day of June, 1,968, upon the decision of the court, rendered after a trial at the Kings County Special Term, determining claims to real estate and establishing the validity of a certain deed.</p> <p>Henry L. Wyckoff died on the 28th day of January, 1879. . He was seized of an estate in fee simple in an undivided five-sixteenths of a farm in the then town of Hew Tuots, which afterward became part of the city of Brooklyn. This estate was subject to an outstanding life estate in his mother,, Sarah Wyckoff, who was in the actual possession thereof. He left him surviving his widow, the defendant Maria Wyckoff, and one child the defendant Abraham Vanderveer Wyckoff." He left a will which was duly proved and which provided as follows:</p> <p>“ First. I give to my wife, Maria Wyckoff, in lieu of dower the use and income of all my real and personal property to be paid to her by my executors so long as she shall remain my widow.</p> <p>“ Second. On the death or remarriage of my wife I give all my property, real and personal, which I may own or be entitled to or interested in at my decease in equal portions to my children then living and the issue of such as may have died, such issue to take the share the parent would take if living.</p> <p>“ Third. I give and devise all my real and personal estate of whatever nature or kind to my wife Miaría Wyckoff, the executrix, and to my brother, Jacob S. Wyckoff, the executor of this my last will and testament hereinafter' nominated and appointed, in trust for the payment of my just debts and the legacies hereinbefore specified, with full, absolute and complete power and authority to such of them as may qualify .and to the survivor of them to grant, sell, convey, mortgage, lease or exchange all or any part or parts of my real estate at public or private sale at such time or times and upon such terms and in such manner as to' them shall seem meet.”</p> <p>Both Maria Wyckoff and Jacob S. Wyckoff qualified as executors, but no account of their proceedings as such has ever been filed. Jacob S. Wyckoff died in the year 1881. • On the 29th of January, 1890, all of the owners of the said farm entered into a contract to sell the same to Edward F. Linton for a price exceeding $200",000. In this contract Maria Wyekoff described herself as the sole surviving executor and trustee under the last will and testament of Henry L. Wyekoff, deceased. About the 1st day of May, 1890, she executed a deed in which she is described in the same manner as in the contract.- The deed recites that she executes the same by virtue of the power and authority to her given by said last will and testament. It contains a covenant that she is lawfully the executrix of the said will and has power to convey; that she has in all respects acted in making the conveyance in pursuance of the authority granted in and' by said last will and testament, and that she has not made, done, committed or suffered any act, matter or thing whatsover since she was executrix as aforesaid whereby the above-granted .premises shall or may be impeached, charged or incumbered in any manner whatsoever. The proportionate part of the pmrehase price which the estate of Henry L. Wyekoff was entitled to receive was $54,062.50, which was paid to her partly in cash and the residue by the bond of the said Linton secured by a purchase-money mortgage on the said premises. Thereafter, from time to time, the said Maria L. Wyekoff, upon receiving payment of a part of the principal of the said mortgage, released portions of the property covered thereby until on the 1st day of May, 1908, when the balance of the mortgage remaining unpaid was paid to her, she executed and delivered a satisfaction piece thereof. The farm conveyed to Linton was thereafter cut up into lots.. Large sums of money were expended in laying out streets, grading, paving, flagging and curbing them, and in installing a water and sewerage system. Several hundred of the lots have been sold to various persons, who have erected buildings thereon, and the plaintiff in this action, who acqxnres his title from the said Linton, is now the owner of more than 400 of said lots. In Novembei’, 1906, the defendants in this action claimed that the deed made by Maria Wyekoff was ineffectual to convey the property therein desci’ibed and was utterly void, and that they were still the owners of the said lots or of some interest therein. Thereupon this action was commenced to determine the validity of such claims.</p>

<p>Crime— appeal — presumption as to challenge of jurors — questions showing hias :— effect of former conviction.</p> <p>Although the record on appeal does not show that challenges were made to every juror, where the district attorney and the defendant’s counsel examined each of the proposed jurors and there was no objection upon the ground that there-was no challenge, the court will assume that a challenge was made as to each particular juror.</p> <p>Where one of the issues raised by an indictment is as to whether the defendant had been formerly convicted of 'grand larceny, an objection to the defendant’s question to a juror asking whether if the evidence should show' that the defendant had been previously convicted and had served a term in the penitentiary, it would influence the juror in the consideration of the evidence is properly sustained.,</p> <p>Where the grade of a larceny depends upon a former conviction for larceny, but the defendant’s guilt or innocence depends upon the proof of’ the particular crime charged in the indictment, it is reversible error to sustain an objection to the defendant’s question to a juror, asking whether if the defendant was formerly arraigned, tried and convicted and had served a term of imprisonment . it would influence the juror in arriving at a verdict of guilt or innocence.</p>

<p>Principal and surety — when surety of building contractor not discharged from liability — estoppel.</p> <p>Where a building contract requires the contractor to excavate an estimated amount of rock for a specific sum, but entitled him to certain payments upon an engineer’s certificate as the work progressed, fifteen per cent of the amount earned to be retained until the completion of the work, the surety of the contractor is not discharged by reason of the fact that prior to the contractor’s default he had been paid an amount in excess of that to which he was entitled, where both he and the surety requested that the payments he made.</p> <p>There was no modification of the contract which discharged the surety and, moreover, the surety by requesting that the payments he made, is estopped from asserting that they were in violation of the contract.</p>

<p>Railroad — obligation of street railroads to relay pavement between tracks — constitutional law — municipal corporations—power of borough president to require new pavement to be laid.</p> <p>Where a street railroad company, by virtue of its franchise and by virtue of section 98 of the Railroad Raw, is required to keep in permanent repair the pavement between its tracks, the rails of its tracks, and for two feet in Width out- - side thereof, under the supervision of the municipal authorities and whenever required by them to do so, it is liable for its share of the expense of laying a new and improved roadway when the same is deemed necessary by the municipal authorities; owing, to the fact that the existing pavement as a whole is in . had repair. This is true, although the part of the old pavement within and adjoining the tracks was kept by the railroad in good repair, the defects being . in the other portions of the street.</p> <p>It is the condition of the street as a whole that is to he considered', and when public interests require it to he repaved, with a new kind of pavement, the obligation to keep its portion of the street.in permanent repair requires the railroad to repave that portion with the same material as that used in the rest of the street.</p> <p>Such railroad has no> constitutional right to be heard upon the question as to whether the laying of a new pavement is reasonable and proper, for it holds its franchise to use the public streets subject to an obligation to discharge those conditions imposed by the sovereign power.</p> <p>Under the charter of the city of New York a borough president, subject to the control of the board of estimate and apportionment, is the proper person to determine when, how and under what circumstances a street shall be repaved.</p>

<p>Appeal by the defendant, the New York City Railway Co.mpany, 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 2d day of July, 1908, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived.</p>

Appeal by the defendants, the McDermott Dairy Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19th day of Hovember, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrers to the complaint.

Appeal by the defendant, The San Domingo Improvement Company 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 19th day of February, 1909, denying the defendant’s motion to vacate or limit an order for the examination before trial of two persons not parties.

<p>Appeal by the defendant, Andrew B. Carton, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of March, 1909, denying the said defendant’s motion to vacate and set aside ah order attaching his salary and issuing a writ of execution against the same, pursuant to section 1391 of the Code of Civil Procedure.</p>

<p>Pleading— bill of particulars — party not required to furnish, evidence.</p> <p>Where a complaint in partition alleges that a devise of lands is void by reason of the fact that the testatrix lacked testamentary capacity; that the execution was procured by fraud and undue influence, and that the will was not executed in the manner required by the laws of this State, the plaintiff will not be required to give a bill of particulars containing the evidence which she will produce in support of such allegations.</p> <p>Where a pleading specifies the nature of a claim the plaintiff will not be required to disclose the evidence by which she will establish it.</p> <p>Scott, J., dissented.</p>

<p>Pleading — failure to remedy defects on prior amendment — further leave to amend denied.</p> <p>Where the court in sustaining a demurrer has pointed out the defects of the complaint and indicated, the facts which should be stated in order to make out a cause of action, with leave to amend-, but the amended complaint is substantially the same as the first, and the defendant, having answered, has had judgment on the pleadings under section 547 of the Code of Civil Procedure, it is an abuse 'of discretion to allow the plaintiff, to serve another amended complaint unless he shows that he can allege facts stating a causé of action and gives some explanation of liis prior neglect to plead them.</p>

Appeal by the defendants, The- Hew York and Harlem Railroad Company 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 Hew York .on the 21st day of August, 1908, .upon the decision of the court, rendered after a trial at the Hew York Special Term; also an appeal by the defendant Everett P. Wheeler from an order entered in said clerk’s office on the 24t-hday of 'June, 1908,. denying the said…

<p>Pleading — public records — denial ón information arid belief—tax — defense to action to collect tax — equitable estoppel — Tax Law, section 259a, applicable to city of Mew York.</p> <p>It seems, that there may be cases in which a denial on information and belief of matters alleged to$exist in a public record is not frivolous.</p> <p>An allegation that the defendant “ has not knowledge sufficient to-form-a belief as to each, all and every, the other allegations as set forth in the’ plaintiff's complaint, and, therefore, controverts and denies the same,” is insufficient as a denial upon information and belief, or as a denial'that the defendant has any knowledge or information sufficient to form a belief. This -because the "element of “ information ” is entirely omitted.</p> <p>In an action to recover a tax levied on personal property in the borough of Manhattan the defendant is not restricted to the defense specified in section 934 of the city charter, for the provisions of section 259a of the Taxi Law are applicable to the city of Mew'York, and provide that where it appears to-the court just that a tax should not be paid, it may dismiss the suit on the payment of such part of the tax as may be just, or on. the payment of costs.</p> <p>It is a good defense to an action to collect such tax to allege that the defendant wms refused an inspection of the record by the commissioner of taxes at a time when it was open for examination and correction, and that thereafter the commissioner informed him that no assessment had been made against the defendant on personal-property, on which information the defendant relied. Under such circumstances the city is estopped in equity from enforcing the collection of the tax, although the tax commissioner was acting not as agent of the city, but as a public officer. -</p>

Appeal by the defendant, The Prang Educational Company, 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 23d day of February, 1909, denying the defendant’s motion to strike the action from the Special Term calendar.

<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 plaintiff, Edith H. Ellis, 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.

<p>Insurance — suit by policyholder in mutual stock corporation to enjoin merger.</p> <p>Where a corporation conducting an insurance business on a mutual plan is a stock corporation, one holding a policy and entitled to share in surplus profits cannot maintain a suit in equity to enjoin a sale of the corporate assets to another insurance company pursuant to a merger agreement.</p> <p>It seems, that such suit may be maintained only by one who is a stockholder, or by the Attorney-General upon his own motion, or at the instigation of the Insurance Department.</p>

Appeal by the defendant, Charles Barry, from a judgment of the Court of General Sessions of the Peace'in and for the county of ¡New York in favor of the plaintiff, rendered on the 7th day of August, 1908, convicting the defendant of the crime of grand larceny in the first degree, and also from an order denying the defendant’s motion for a new trial.

Appeal by the defendant, The Fidelity and Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of May, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Melville D. Chapman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the Yth day of July, 1908, upon the dismissal of the complaint by direction of the court, at the close of the plaintiff’s case, on a trial at the New York Trial Term.

Appeal by the plaintiffs, Adolph Paltey and another, from a judgment of the Supreme Court in favor of the defendant Patrick B. Egan, entered in the office of the clerk of the county of Hew York on the 17th day of June, 1908, upon'.the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, the verdict of a jury in favor of the plaintiffs against the said defendant having been set aside by the court. . ,

<p>Appeal by the defendant, Charles Edward Lewis, from a judgment of the Court of General Sessions of the Peace in and for the county of New York in favor of the plaintiff, rendered on the 6th day of August, 1908, convicting the defendant of the crime of abandoning children, etc., and also from an order amending the indictment and orders denying the defendant’s motion for a new trial and in arrest of judgment.</p>

Appeal by the defendants, Julius Harburger, president, etc., and others, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 24th day of January, 1908, and also from an order entered in said clerk’s office on the 13th day of December, 1907, denying the defendants’ motion for a new trial made upon the minutes.'

Appeal by the defendant, the Consolidated Ice 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 30th day of March, 1909.

: Appeal hy the relator, Mary A. Pardee, from an order of the •Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 31st day of December, 1908, denying the relator’s motion for a peremptory writ of mandamus to require the defendant to make gradation and classification of the relator, as required by section 716 of the charter of the city of Hew York (Laws of 1901, chap. 466, added by Laws of 1903, chap. 511).

Cross-appeals by tike plaintiff, Robert A- Knight, as assignee, etc., and by the defendant, Simon Rothschild, as surviving partner, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 29th day' of May, 1908, upon the decision of the court rendered after a trial at the Rew York Trial Term, a jury having been waived.

Appeal by Lawrence E. Sexton, as trustee, 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 8th day of March, 1909, directing him to pay costs awarded to the defendants by a judgment against the plaintiffs herein.

Appeal by the plaintiff, Harry Greenblatt, 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 April, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.

<p>Pleading—joinder of actions — fraud and breach of contract.</p> <p>In an action growing out bf alleged failure to comply with an agreement for the conveyance of real estate, in which the vendee claimed damages, setting oút two causes of action, the defendant demurred upon the ground of misjoindyr of causes of action, in that one of the causes bf action was based upon alleged fraud avoiding the contract, rescission and refusal to take title, while the second cause of action was based on the affirmance of the contract, a demand for the de.ed and the alleged inability to give a, good and marketable title.</p> <p>SéZíZ, that plaintiff attempted to set up two causes of action, one for. damages for fraud and the other' for failure to "perform a contract, and that,, as proof of either would destroy the other, they are inconsistent and cannot he joined.</p>

Appeal by the defendant, Eobert Smith, 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 October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of October, 1907, denying the defendant’s motion for a new trial made upon the minutes.

<p>Supplementary proceeding — title of receiver — bankruptcy—effect on title of receiver — filing claim in bankruptcy— election.</p> <p>"Upon the appointment and qualification of a receiver in supplementary proceedings, he takes the legal title to all the personal property of the judgment debtor, whether in his hands or in the hands of others, as of the date of the service of the order in supplementary proceedings, except as against purchasers in good faith, or a debtor who has paid his debt in good faith.</p> <p>Where service of an order in supplementary proceedings was made upon the judgment debtor prior to the four months’ period prescribed by .section 67f of the Bankruptcy Act, within which all legal proceedings shall be deemed null and void in case of bankruptcy, although the receiver was appointed and qualified during the four months’ period, his title to: the judgment debtor’s rights relate back to the commencement of the proceedings instituted by service of the order.</p> <p>. The presentation of a claim in the bankruptcy court by the judgment creditor, which states that a judgment had been obtained and execution returned unsatisfied, and that there was no security for the debt, and stating further that "a receiver had been appointed in proceedings supplementary to execution, cannot be deemed a surrender of the rights of the plaintiff, or of .guch title as the receiver obtained!, or an election to proceed only in the bankruptcy court.</p>

<p>Appeal by the plaintiff, Damiano Musco, from a judgment of the Supreme Court in favor of the defendant, entered -in the office of the clerk of the county of Uew York on the 30th day of December, 1908, upon the decision of .the court, rendered after a trial at the Yew York Special Term, overruling the plaintiff’s demurrer to the answer and dismissing the complaint herein.</p>

Appeal by James G-. Wagner, as one of the executors, etc., and another, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court nunc pro tunc as of the 6th day of September, 1907.

<p>Corporation — suit by stockholder against directors—when receiver pendente lite not appointed.</p> <p>Although the court has power to appoint a receiver of a corporation pending a suit by a stockholder brought on behalf of the corporation against the officers and directors to compel them to account for official misconduct and misapplication of corporate assets, such receiver will not he appointed where the corporation is a going, solvent concern, unless a very clear case he made out.</p> <p>Mere misconduct on the part of the officers and directors will not justify the appointment of a receiver unless it he necessary to preserve the property or the rights of creditors or stockholders. Such appointment will not he made on general allegations of fraud and maladministration on information and belief, unsupported by legal proof, especially where the answering affidavits deny the charges.</p> <p>Although certain property purchased with funds of the corporation stands in the names of its directors, a receiver pendente lite will not he appointed where the defendants claim no title or interest in the property, and state that they hold it in trust for the benefit of the corporation and stand in readiness to turn it over.</p>

Appeal by the defendant, Julia 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 23d day of April, 1909, denying the defendant’s motion to compel the clerk of said court to enter a proposed judgment.

Appeal by the defendant, Edgar H. Cook, from an-order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 10th day of April, 1909.

Appeal by the Comptroller of the State of Mew York from an order of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 4th day of August, 1908, affirming an order suspending taxation upon the interests of the persons entitled to a share of the decedent’s estate until such time as such persons are discovered and ascertained.

Appeal by the defendant, Louis Meryash, from an order of the •Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of March, 1909, appointing a referee herein, and also from an order entered in said clerk’s office on the 31st day of March, 1909, appointing a second referee because of the inability of the one first appointed to act.

<p>Appeal by the-plaintiff, Samuel Hugel, 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 1st day of February, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

<p>Appeal by the plaintiff, The People of the State of Hew York, from part of 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 30th day of September, 1908, appointing .a referee to take testimony, and denying the plaintiffs motion to punish the defendant as for a contempt.</p>

Appeal by the plaintiff, Katherine Griffin, from, an' order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 16th day of December, 1908, affirming a judgment of the City Court of the city of Hew York, entered on the 25th day of May, 1907, which dismissed the complaint upon the merits.

Appeal by the defendant, William P. W. Haff, 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 April, 1909.

<p>Executors and administrators — accounting after discharge of executor denied —judgment in partition — when res adjudicata as to extent of trust and rights of parties—will — unlawful accumulation — court — surrogate cannot review determination of Supreme Court.</p> <p>After an executrix has duly accounted and been discharged, a further accounting will not be ordered where it is not alleged that further sums came into her hands as executrix and her allegation that she has made full accounting is not denied. •</p> <p>Where an action of partition required the construction of a will and the judgment necessarily determined that no trust was created, the decision is binding and conclusive upon the parties. It is conclusive not only as to matters actually determined, but as to every other matter which the parties might have litigated and decided as incident to or essentially connected with the subject-matter of the litigation, either as matter of claim or defense.</p> <p>A party who was an executrix of the will under construction and who, by virtue of a judgment of partition, has received an income from a portion of the estate as life tenant, holds the same in her own right and not as a trustee, and cannot ■ be compelled to account therefor.</p> <p>A testamentary provision that from the rents of the estate a certain sum per ■ annum be paid toward the satisfaction of mortgages, is void as an unlawful accumulation contrary to the statute forbidding accumulations beyond minority. Being void, such direction for accumulation will be treated as if stricken from the will.</p> <p>Where, in a proceeding under chapter 53 of the Laws of 1877, the Supreme Court has,authorized the execution of a mortgage and directed that all the pro- ' ceeds thereof be paid to a guardian appointed in such proceeding and the guardian has accounted to the Supreme Court, the Surrogate’s Court has no jurisdiction to review the proceeding on an application to compel the execu- . trix who received no portion of the fund to account.</p>

Certiorari issued out of the Supreme Court, and attested on the 8tli day of December, 1908, directed to Theodore A. Bingham, as police commissioner of the police department of the city of New York, commanding him to certify and- return to the office of the clerk of the county of New York all and singular his ¡iroeeedings had in relation to the removal or dismissal of the relator, a former captain of the police, from the police force.

Appeal by the defendants, Charles De Kay Townsend and another, individually and as trustees, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of February, 1909, severing the action, giving plaintiffs leave to enter judgment against certain of the defendants, and directing the receiver herein to account and pay over to plaintiffs rents, etc., in his'hands.

Appeal by the defendant, the Electric Storage Battery 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 2d day of July, 1908, upon the verdict of a jury, and also from an order entered in said- clerk’s office on the 1st day of July, 1908, denying the defendant’s motion for a new trial made upon the minutes. '

<p>Appeal by the plaintiff, Walter Daly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 8th day of August, .1907, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term.</p>

<p>Appeal by the plaintiff, Jacob Morgenthaler, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of December, 1908, denying the plaintiff’s motion for a retaxation of costs.</p>

Appeal by the defendant, the Erie 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 Orange on the 4th day of March, 1908, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 7th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Master and servant—negligence — injury to employee taking part in spectacular exhibition—failure to promulgate rales.</p> <p>Where the negligence of a master is based upon his failure to promulgate proper rules for the safety of his employees, the action is at common law and the plaintiff is not entitled to the protection of the Employers’ Liability Act, even though he has served a notice under that act and put it in evidence without objection.</p> <p>Where one employed .to assist in a spectacular representation of a burning building by allowing herself to be carried down a rope by one impersonating a fireman was injured by striking, the building, owing to the fact that another employee took hold of the lower portion of the rope, the master cannot be charged with negligence upon the ground that he had failed to promulgate a rule prohibiting other employees from touching the rope. The peril of such act . of a fellow-servant was obvious and assumed by the plaintiff.</p> <p>Gaynoe, J., dissented in part.</p>

Appeal by the plaintiff, The McCall Company, from an order of tire County Court of Nassau county, entered in the office of the clerk of said county on the 22d day of January, 1909, reversing a j udgment of a Justice’s Court of the town of Hempstead in favor of the plaintiff and directing a new trial.

<p>Master and servant —negligence—injury to employee by sudden starting of draught horse — facts not justifying recovery.</p> <p>One employed by the city of New York as a snow shoveler who while unloading snow from a wagon fell therefrom owing to the fact that a team of steady-going draught horses attached thereto started up about three feet cannot base a recovery upon the fact that the defendant did not detach the horses from the wagon while the snow was being unloaded or employ a driver to hold the reins.</p> <p>Neither the city nor the owner of the team is liable for such injury.</p> <p>Hirschberg, P. J. and Miller, J., dissented in part.</p>

<p>Blaster and servant—negligence — Employers’ Liability Act —when not available — pleading.</p> <p>Where a servant suing his master for personal injuries caused by the operation of a derrick predicates the negligence of the master only upon the.fact that he failed to employ a person to give signals, the action is at common law and the plaintiff, as against the objection of the defendant, is not entitled to the benefits of section 1 of the Employers’ Liability Act, although he has served a notice under said act.</p> <p>To entitle a servant to the benefit of the Employers’ Liability Act it must appear from the pleading that the cause of the accident is one for which the master is liable under the act.</p> <p>Gaynor and Rich, JJ., dissented, with opinion.</p>

<p>Landlord and tenant — summary proceedings — pleading—sufficiency of petition—answer not raising issues.</p> <p>A petition in summary proceedings to remove a tenant and sub-tenants need'not allege that the sub-tenants held over “without the permission.of the landlord.” That fact need be alleged only in respect to the tenant.</p> <p>A petition which sets out a lease with a tenant and alleges that the premises are . in occupation of said tenant and certain specified undertenants, is not defective in failing to show under whom the undertenants hold.</p> <p>A sub-tenant makes no denial of the landlord’s allegation that rent was demanded by denying that it was demanded “ according. to law,” it being a legal conclusion and negative pregnant.</p> <p>An allegation by a sub-tenant that the tenant vacated the premises is no denial of the landlord’s allegation that the tenant and sub-tenants are in possession, for the physical possession of the sub-tenants is a legal possession by the tenant.</p> <p>A denial by a sub-tenant that he is tenant of a tenant is not a denial of the allegation that he is a sub-tenant, for he may have hired from a. sub-tenant.</p> <p>Woodward and Rich, JJ., dissented, with opinion.</p>

Appeal by. the defendant, Joseph Langan, a lieutenant of police, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of March, 1909, sustaining a writ of habeas corpus and discharging the relator from custody.

<p>Keargtjment of .cross-appeals by the plaintiff, Edmund F. Gaetjens, an infant, etc., and by the defendants, The City of New York and the Flatbush Gas Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the loth day of October, 1906, upon the verdict of a jury, and also from respective orders entered in said clerk’s office on the 22d day of October, 1906, denying respectively motions made by the plaintiff and by the said defendants for a new trial on the minutes. (See Gaetyens v. City of New Yorl&, 129 App. Div. 919.)</p>

<p>Appeal by the plaintiff, Tobias Zindler, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 20th day of November, 1908.</p>

<p>Appeal by the plaintiff, Patrick Catterson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 1st day- of February, 1909, upon the dismissal of the complaint by direction of the court upon the pleadings at- the Kings County Trial Term, and also from an order entered in said clerk’s office on the 4th -day of February, 1909, denying the plaintiff’s motion for a new trial. '</p>

<p>Appeal by the relator, David H. Hunt, from a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of December, 1908, dismissing a writ of habeas corpus.</p>

<p>Insurance — fraternal beneficiary order—payment of policy on reaching a stated age — vested rights.</p> <p>Á fraternal order, incorporated under the Laws of 1881, chapter 256, had power prior to the amendments to -the Insurance Law made in 1906, to provide in its constitution or by-laws for the payment to any member of the value of his certificate in five annual installments upon his reaching the age of seventy years, and such agreement was not ultra vires.</p> <p>Where a member attained the age of seventy years in 1905 while said by-law was still in force and received thereunder two of the annual payments on his certificate, his rights under the contract are vested and cannot be impaired by subsequent legislation.</p>

<p>Process — service of summons on corporation—when assistant superin- , tendent not managing agent.</p> <p>Service of summons upon a domestic corporation cannot be made by delivering the same to one employed as “ Assistant Superintendent” where he performs no duties which make him a “ managing agent” of the corporation within the meaning of subdivision '3 of section 431 of the Code of Civil Procedure.</p> <p>Such service is void although the person served delivered the summons to the corporation if it promptly'repudiated the service.</p> <p>An assistant superintendent of a corporation who has no general supervision over its affairs and no authority to manage its affairs as agent, but whose duties are really those of a foreman, is not áf managing agent within the meaning of said section.</p>

<p>Insurance — policy of fire insurance construed — liability of insurer for goods stored with. insured—bailment for hire.</p> <p>Where a sale of goods is rescinded' with an agreement that no claim shall be made against the seller for breach of contract, that the buyer shall store the goods without cost' to the seller for a reasonable time so as to enable the latter to resell, and that in thé event of a resale the original buyer reshipping the goods on order should he entitled to hold the seller for the freight and cartage charges; the buyer becomes a bailee for hire.</p> <p>Hence, where such bailee is insured against loss by fire under a policy which covers all merchandise in its warehouse owned by it, or held “ in trust or on commission, or sold but not removed,” the bailor after the goods are injured by fire may recover against the insurer.</p> <p>A policy on goods held in trust or on commission covers all the goods with which the party procuring the policy is intrusted, and is not confined to goods held in trust in a strict technical sense, but extends to ordinary bailments.</p> <p>Spuing, J., dissented.</p>

Appeal by the defendant, Arthur R. Peck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 6th day of July, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of July, 1908, denying the defendant’s motion for a .new trial made upon the minutes.

<p>Appeal by the plaintiff, James B. Cox, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 24th day of October, 1908, upon the decision of the court, rendered after a trial at the Cayuga Special Term, sustaining the defendant’s demurrer to the amended complaint.</p>

Cross-appeals by the plaintiffs, William H. Granger and others, and by the defendant, The Empire State Surety Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 10th day of December, 1907, upon the decision of the court rendered after a trial before the court without a jury at the Erie Trial Term.

Appeal by the defendant, Julian H. Scliérmerhorn, as trustee, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 30th day of June, 1908, upon the decision of the court rendered after a trial at the Niagara Trial Term, a jury having been waived.

Appeal by the defendant, Norard Grover, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of September, 1908, reversing a judgment of the Municipal Court of the city of Buffalo in favor of the defendant, which dismissed the complaint, and directing á new trial in the Municipal Court.

<p>Limitation of action -^-conversion—when statute begins to run;</p> <p>The Statute of Limitations on an action to recover for the conversion of bonds begins to run from the time of the conversion,, and not from the time the plaintiff discovers the identity of the thief.</p>

Appeal by the defendant, The Mutual Beneiit Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 16th day of September, 1908, upon the decision of the court rendered after a trial at the Erie Special Term, with notice of an intention to bring up for review upon such appeal two orders made on the 13th day of November, 1905, and the 4th day of June, 1906, respectively, directing…

<p>Blaster and servant — negligence — injury by heavy flask suspended from crane—safe place to work—when negligence and assumption of risk for jury—act of fellow-servant.</p> <p>Action' against a master to recover for negligence causing the death of an employee. The decedent was employed about an electric crane in a pipe foundry, and was required to place heavy flasks weighing 8,600 pounds on the turntable as they were lowered by the crane. The decedent, while guiding the flasks to the turntable, was compelled to stand within an iron structure surrounding the latter, .and was crushed between it and a flask, which, being suspended by a chain forty-four feet long, acquired a swinging motion. The decedent had worked for the defendant hut a short time, and had received no special warning or instruction as to the dangers involved. On all the evidence,</p> <p>IIeld, that a nonsuit was error, it being a question for the jury as to whether the master was negligent in failing to furnish a reasonably safe place to work.</p> <p>If the master were negligent in failing.to furnish a safe place to work, aud if the accident would not have happened had that duty been performed, lie cannot escape liability because the decedent’s fellow-servants were negligent in allow ing the flask to catch upon some part of the turntable so as to give it a swinging motion.</p> <p>Under the circumstances the assumption of risk by the decedent was for the jury.</p> <p>Williams, J., dissented.</p>

Appeal by Hora G-. Ready, a person interested, from an order made by a justice of the Supreme‘Court and entered in the office of the clerk of the county of Onondaga on the 18th day of January, 1909, discharging the relator from the custody of the sheriff of Onondaga county in a habeas corpus proceeding.

<p>Appeal by Byron A. Pierce and another, as administrators, etc., from a decree of the Surrogate’s Court of the county of Cattaraugus, entered in said Surrogate’s Court on the 4th day of November, 1908, affirming a decree taxing under the Transfer Tax Law certain savings bank trust fund's.</p> <p>William P. Pierce, a resident of the city of Clean, in Cattaraugus county, died intestate on the 14th day of April, 1908, leaving him surviving his- wife and three children, all of full age. He made deposits of money's in various savings banks in the State of Massachusetts. The deposits were in form as trustee for his wife and children, each account being in the name of William P. Pierce, as trustee for a particular person named. The accounts aggregated, at the time of his death, the sum of $21,722.03. They weije opened by him long before his death, and the deposits were made—from time to time, covering a period of many years. Wnen, a. given account reached the interest-bearing limit in the bank, a similar, account would be started in another bank, so that at his death there were fifteen accounts in all.</p> <p>The surrogate (60 Misc. Rep. 25) held that the funds were taxable under the Transfer Tax Law, and the administrators appeal.</p>

<p>Trial — motion for direction of verdict and for nonsuit — appeal — review of findings by trial court — contract —reward for return of stolen goods — restitution to avoid legal prosecution — knowledge of offer —knowledge that goods were stolen.</p> <p>Where at the close of the evidence plaintiff moves for the direction of a verdict and the defendant renews a motion for a nonsuit, the facts may be determined by the trial judge, for the defendant’s motion is equivalent to a request .for the direction of a verdict in his favor.</p> <p>On appeal from the decision of the trial court, controverted facts and all facts inferable in support of the judgment are deemed conclusively established in favor of the party for whom the verdict was directed, provided there is evidence to support the finding.</p> <p>One who has returned stolen goods in answer to an advertisement offering a rewafd for their return must prove that, the return was voluntary on his ■ part and made in reliance upon the promise contained in the advertisement.</p> <p>If the goods were returned under compulsion, or without knowledge of the offer, there is no enforcihle contract.</p> <p>Thus, where stolen goods are returned by one who purchased them from the thief in order to avoid a compulsory disclosure of his possession by legal proceedings which were threatened, the return is not voluntary, and the owner is not liable for a reward offered by advertisement. This is true, although after returning the goods he admitted the owner’s title, as the character of the return could not he affected by subsequent acts.</p> <p>So, too, one who purchases goods, knowing that they are stolen, is not entitled to a reward offered by the owner.</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 plaintiff, Helen E. Cookman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Lewis on the 16th day of December, 1908, upon a nonsuit granted by the court at the close of plaintiff’s case on a trial at the Lewis Trial Term, and also from an order entered in said clerk’s office on the 8th day of December, 1908, denying the plaintiff’s motion for a new trial.

<p>Appeal by the defendant, Rudolph Dotterweich, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 10th-day of December, 1907, upon "the verdict of a jury rendered by direction of the court after a trial at the Cattaraugus Trial Term, and also from an order entered in said clerk’s office on the 5th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by William H; Taber, as executor, etc., from a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 1st day of June, 1908, judicially settling the accounts of said executor.</p>

Appeal by the defendant, The New York, Ontario and Western 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 Oneida on the 19th day of October, 1908, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 13tli day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Milliken Brothers, Incorporated, from an order of the Supreme Court, made at the Ontario Trial'Term and entered in the office of the clerk of the county of Ontario on the 8th day of July, 1908, granting the-plaintiffs motion for a new trial made upon the minutes after a verdict rendered by a jury in favor of the defendant. . --

<p>Railroad—negligence — death, of hoy—contributory negligence.</p> <p>Evidence in an action to recover for the death of a boy eight years old, who was killed by a train-at a crossing on the defendant’s road while riding with the driver in an empty coal wagon, examined and held, to sustain a verdict for the plaintiff, though the driver was negligent.</p> <p>McLennan, P. J., and Spring, J., dissented.</p>

<p>Appeal — decision on the merits—pleading — work, labor and services — Justice’s Court — master and servant — action to recover wages — counterclaim for breach of contract— damages.</p> <p>By a decision on the merits; contested questions of fact are deemed established in favor of the party for whom judgment is given, and the judgment will not he disturbed on the facts unless it is without evidence to support it or is against the weight of the evidence.</p> <p>Where in an action in Justice’s Court to recover for work, labor and services and for the purchase price of certain personal property, the complaint alleges that a certain sum was paid to apply on wages, and the answer admits the payment as alleged, hut subsequently sets up that only part of the payment was for wages, and the parties give proofs on the trial as though the question as to the payment was open, the defendant will not be held to have admitted that the whole payment was .made on wages.</p> <p>Where in 'a contract for work, labor and services there is an agreement to pay from time to time during the term, a recovery can be had for the wages earned, though the servant abandons the service, without cause, before the expiration of the term.</p> <p>Robson, J., dissented.</p>

Appeal by the plaintiff, Stella St. John, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Jefferson on the 16th day of January, 1909, substituting another as defendant in place of the Union Mutual Life Insurance Company. The action is brought to recover the amount of a life insurance policy issued upon the life of Jay St. John.

Cross-appeals by the plaintiff, the Robert Thomson Company, and the defendant, Thomas R. Levis, from a judgment of the County Court of the county of Monroe, entered in the office of the clerk of said county on the 4th day of May, 1908, modifying a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff.

<p>Tax — tax sale — substantial compliance with law—judgment in accord- . anee'with issues.</p> <p>Where the complaint in :an action to have a tax deed declared void is drawn on the theory that the sale was valid, but that the deed is voidable as being in fraud of plaintiff’s rights as mortgagee, a judgment of the trial court in plaintiff’s favor, based on the theory that the tax sale was void, will be reversed for it adopts a different theory than that upon which the action was brought.</p> <p>A statement in the tax deed that the sale was pursuant to the Madison County Law, although such law had at the time of the sale been repealed by the Gen-, eral Tax Law, did not vitiate the deed so long as the sale in all substantial respects complied with the General Tax Law, the only statute under which the sale could he made.</p>

<p>Appeal by the defendant, The First National Bank of Franklin, N.. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered -in the -office of the clerk of the county of Delaware on the 4th day of May, 1908, upon the verdict of a jury, and also from -an order entered in said clerk’s office on the 20-th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, John Scanlon and another, from a judgment of the. County Court of Delaware county, rendered on the loth day of April, 1908, convicting the defendants of the crime of manslaughter in the second degree, and also from an order made on the 14th day of April, 1908, denying the defendants’ motion for a new trial.</p>

<p>Pleading — admission on demurrer — conditional' sale — counterclaim not connected with subject of action.</p> <p>A failure to demur or reply to a counterclaim is an admission of the allegations therein, but not an admission that it is properly interposed.</p> <p>Where the complaint in an action by the vendor of chattels under a contract of conditional sale alleges the conversion of part of the property and a wrongful . trespass upon the balance by the defendant who had assumed the contract of the vendee, a counterclaim which alleges that the. .property was returned at plaintiff’s request and that the property so taken by plaintiff was neither retained for the period of thirty days from the retaking nor sold at public auction after the service of notice as required by sections 116 -and .117 of the Lien La-w, is unauthorized for it does not arise .out of the transaction set forth in the complaint and is not connected with the “subject of the action,” within the meaning of section 501 of the Code of Civil Procedure.</p>

<p>Fraud — bankruptcy — pleading — discharge in bankruptcy — election to proceed on contract — discharge as adjudication that there was no . fraud —prior action pending.</p> <p>A demurrer to any part of an original answer after the service of an amended answer is unauthorized, but will stand as a challenge to the corresponding defense in the amended answer.</p> <p>In an action for damages for false and fraudulent representations inducing the sale of goods by the plaintiff to the defendant, a defense which alleges that the defendant, subsequent to the time plaintiff’s cause of action accrued, was discharged in bankruptcy and that the plaintiff’s, claim was not one of those excepted from the effect of said discharge, is demurrable.</p> <p>The allegation that the plaintiff's claim is not one of those excepted from the effect of the discharge in bankruptcy is an allegation of law, not of fact.</p> <p>Proof of a debt in bankruptcy proceedings is not a waiver of the right to recover for the same debt on the ground that it was created by fraud and not dis-chargeable in bankruptcy.</p> <p>A defense to such action which alleges that prior to the bankruptcy proceedings the plaintiff had commenced an action upon contract for the amount due on the goods sold, that it had appeared in the bankruptcy proceedings and had accepted a dividend on its claim, and that between the filing ofi the claim and the acceptance of the dividend it filed specific objections to defendant’s discharge. upon substantially the same grounds of fraud as are alleged in the present complaint, and subsequently, for valid considerations, withdrew such objections, whereby plaintiff made an election of remedies,, is. also* demurrable;</p> <p>The fact that plaintiff withdrew its objections based.on the fraud to.defendant’s discharge does not.make. the discharge an adjudication that- there was. ho fraud.</p> <p>The efficacy of the defense of another action pending is tested by the* rule that , the same evidence is necessary to- establish both causes of action, and', therefore, the pendency of the action on* contract cannot be pleaded' as- a- bar to- the-action, for fraud..</p>

<p>Appeal by ■ Louise McGurtie from portions of a decree of the Surrogate’s. Court of the county of Montgomery, entered In said Surrogate’s Court on the 7th .day of September, 1908.</p>

<p>Certiorari issued out of the Supreme Court in the county of Albany, H. Y., and attested on the 29th day of August, 1908, > directed to Martin H. Glynn, Comptroller of the State of Hew York, commanding him to certify and return all and singular his proceedings had in.regard to the assessment of a franchise tax against the relator for the year ending June 30, 1907.</p>

<p>Appeal by the defendant, Edgar A. Newell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 4th day of May, 1908, upon the decision of the court, rendered after a trial at- the St. Lawrence Special Term, and also from an order entered in said clerk’s office on the 31st day of August, 1908, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence.</p> <p>The action was commenced to recover certain property alleged by the plaintiff to have been secured from him by the defendant by fraudulent statements and misrepresentations. After the commencement of such action a settlement thereof was agreed upon between the parties. In carrying out the settlement a dispute arose between them as to what the agreement was. At the opening of the trial the parties stipulated that, although the complaint .did not state the agreement of settlement, nevertheless if the plaintiff proves the agreement as claimed by him, a recovery might be had thereon, and that the question to be decided was what the agreement of settlement was, and that the recovery should be had only upon that agreement, and not upon the original fraud as alleged.</p> <p>In May, 1904, the defendant sold to the plaintiff one-third of the shares of the capital stock of the W. H: Linton Company, of which the defendant was president, and in which one W. H. Linton owned some of the shares. In consideration of such sale of stock to the plaintiff he conveyed to the defendant Newell a house and lot in Ogdensburg, and delivered to him his check for $200, and indorsed notes amounting, with such check, to $1,200. Newell retained title to such house and lot, but turned over to Linton, for the shares the latter contributed to the plaintiff’s one-third, such check and indorsed notes, on which Linton realized the full sum of $1,200. It was part of the agreement of the sale of stock to the plaintiff, that he would work for the company at $100 per month. Be began work, and shortly became dissatisfied, claiming that the defendant had misrepresented the value of the property, and demanded a return to him of the house and lot and of the $1,200, and tendered back to the defendant the shares of stock that had been delivered to him. The demand not having been complied with, this action was . commenced by the plaintiff to set aside the transfer of real estate- and to recover the $1,200 besides • damages. Thereafter the plaintiff and defendant met and made the agreement of settlement of the action which was the subject of dispute here. According to the plaintiff’s contention that agreement was that he should assign to the defendant the certificate of stock which he had received; that the defendant- should convey back to the plaintiff the real estate in question, pay back to' him the' amount he had received in wages, and that the defendant would return to the plaintiff the $1,200, by having Linton give back the $1,200 which the latter had .realized on the indorsed notes and- check that plaintiff had given to defendant, and which had been turned over to Linton. The defendant’s contention with respect to the $1,200 was that he had agreed to procure Linton to give his notes to the plaintiff for that amount. The plaintiff in support of -his1 contention put in evidence a memorandum claimed to be in the handwriting of the defendant of which the following is a copy: -</p> <p>“ Ogd. Oct. 15, 04. Will see that Mr. Linton gives back Twelve Hundred Dollars he took from him in notes. Will also make out a deed for the Washington and Franklin St. house in place of the one he gave me.</p> <p>“EDGAR ;A.-NEWELL.”</p> <p>The defendant admitted that this paper except the word “ back ” was in his handwriting, but claimed that that word had been written over an erasure or over the words “ note ” or “ notes,” and therefore that the paper as produced was a forgery in that respect.</p> <p>. The trial court madé findings in support.of the plaintiff’s contention, and gave judgment in favor of the plaintiff for the sum of $1,200 and interest, besides costs, from which the defendant has appealed.</p>

<p>Appeal by the defendant, the United Statés Casualty Company, from an interlocutory judgment of the Supreme Court ih favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 16th day of January, 1909, upon the decision of the court rendered after a trial at the Albany Special Term overruling the defendant’s demurrer to the complaint, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the same day directing the entry of the said interlocutory judgment.</p> <p>The demurrer was on the ground that the complaint did not state facts sufficient to constitute a cause of action. A brief summary of the facts stated in the complaint outside of the formal parts shows that the defendant issued a policy of accident insurance to the plaintiff, whereby it agreed to pay him $2,500 for the loss of an arm caused by accident during the life of the policy, and also insured him against loss of time caused by accident or injury ) that the plaintiff was injured in his right arm during the life of thei policy by an accidental explosion causing, among other injuries, the bones in the elbow thereof to be fractured ; that he submitted to prompt competent medical and surgical treatment; that he was advised by his physicians that he would not lose his arm; that the injury thereto would not be permanent, and that he would eventually have the use thereof in substantially as good condition as it formerly was; that he so informed the defendant, believing what his. physicians told him, and in good faith filed a claim against the defendant for loss of time only under said policy; that at the time he filed such claim the defendant believed that plaintiff would not lose his arm because of the injury thereto, and that the injury thereto was not permanent, and also in common with plaintiff the defendant did not know, nor did plaintiff know, that conditions.existed in plaintiff’s arm, as was the fact, and which his doctors had not then discoveredj, which would eventually necessitate the loss thereof by amputation, and both plaintiff and defendant came to an-agreement as to the amount of compénsation for loss of time only, which was due and payable to plaintiff by defendant under said policy by reason of the injury aforesaid, acting under a common but mistaken belief that plaintiff would not lose his arm by reason of such injury, and without knowledge of the facts, and in ignorance of the true condition of said arm, and that under said mutual mistake of the fact defendant on April 16, 1907, paid to plaintiff, and plaintiff accepted in payment of his claim for loss of time only, the sum of $500, and for which plaintiff signed and delivered to the defendant a release and discharge of all claims under the policy, which he would not have signed had lie known the facts and the ultimate result of his injury; that thereafter his right arm, which at no time since said injury had been in use or in a usable condition; did not yield to constant medical treatment, and was eventually on the 8th day of August, 1907, in order to save the plaintiff’s life, amputated near the shoulder, and that the said injury which he received was the exclusive cause thereof ; that the .plaintiff gave - due notice to the defendant of the loss of his arm, but that the defendant refused to furnish him blanks for making proofs of such loss and refused to recognize or pay plaintiff’s claim for loss of arm; that the said payment of $500 was made and the said claim for loss of time only was paid, and said release was executed under a mutual mistake of fact, and that neither party thereto intended to pay plaintiff’s claim under said policy for the loss of his arm, and neither of them knew or believed, nor had reason to know or believe, that any such claim could or would arise from said injury, nor would plaintiff have accepted said, payment, and signed said release had he known the facts as to the condition of his arm.</p> <p>Plaintiff asks judgment that the release be rescinded and declared null and void by reason of the mutual mistake of fact under which it was executed' and delivered, and that lie recover judgment of the defendant for the sum of $2,500, with interest, less the $500, and interest, besides costs.</p> <p>The court at Special Term overruled the demurrer and the defendant has appealed.</p>

<p>Costs — liability of administratrix — action accruing after death- of intestate—practice.</p> <p>An administratrix who is defeated in an action accruing after the death of her intestate which might have been brought by her individually and not in her representative capacity, is individually liable for costs, notwithstanding she sued as administratrix.</p> <p>In such case, although it is proper, it is not necessary to procure, an order declaring her liability for costs, and her appeal from such order will be dismissed.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 27th day of June, 1908, directed to Crin J. Belden and others, as highway eopimissioners of the town of Fort Ann, commanding them to certify and return to the office of the clerk of the county of Washington all and singular their proceedings had in relation to the discontinuance of a certain highway in said town.</p>

<p>Appeal by the. defendants, the Waverly, Sayre and Athens Traction: Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 18th day of March, 1908, upon the decision of the court rendered after a trial at the Tioga- Special Term granting an injunction.</p> <p>The defendant Waverly, Sayre and Athens Traction Company -is a corporation operating a street surface railway in the village of Waverly and its lilies extend through Waverly and South Waverly to Sayre and Athens in Pennsylvania. In 1893 the trustees of the plaintiff granted a franchise upon certain conditions to a corporation known as the Susquehanna Valley Electric Traction Company to operate a street surface railway upon certain streets of the village described therein; one route being “ through Broad street to Chemung street; thence along and through Chemung street, to Ithaca street, * * * ” and “ also to construct such switches and turnouts as may. be necessary for the convenient and useful working of the street railroad.” Ho part of the route described in such franchise is located west of the center line of Chemung street. • One of the conditions upon which the franchise was granted was that “ the center line of such railroad shall at every point along its route, except as otherwise designated by this Board of Trustees, coincide with.the center line of the street or avenue upon which it is constructed.”</p> <p>The defendant Waverly, Sayre "and Athens Traction Company succeeded to the rights, privileges and franchises of said Susquehanna Valley Electric Traction Company in 1894. The defendant Elmira, Corning and Waverly Bailway is a corporation Which, at the time of the trial, was engaged in the construction of a railroad running from Waverly westerly through Elmira to Corning. The contractor for such construction is the defendant Powers & Mansfield Company. Broad street is one of the principal thoroughfares in the plaintiff village, and intersects Chemung street at right angles. The tracks of the, defendant Waverly, Sayre and Athens Traction Company run along the center of Broad street westerly to Chemung street, where they turn into and extend northerly along the center line of Chemung street. That company has also built á dine on a private right of way, extending westerly from the westerly line of Chemung street near the northerly line of Broad; street as that street is continued about 390 feet in a oul de sac westerly of its intersection with Chemung street, and such line constructed on said private right of way connects with the line of the Elmira, Corning- and Waverly Railway at a point about 600 feet from the westerly line of Chemung street. On April 30, 1906, the traction company and the company operating the railway entered into a trackage and traffic agreement for their mutual advantage, under which they agreed to make connection between their respective tracks. Eone of the defendants has obtained any consent or permission from the plaintiff to build, operate, maintain or extend the railroad or tracks in question. On the night of October 12, 1906, a little before midnight, a-body of between 200 and 300 Italian laborers came to the intersection of Broad and Chemung streets and commenced digging up the street west of the tracks of the traction company on Che-mung street and north of its tracks on Broad street. Such laborers were under the direction of an employee of the Powers & Mansfield Company and were the same men who were at that time employed in the construction of the Elmira, Corning and Waverly Railway Company line west of Waverly, and they were employees of the Powers & Mansfield Company. The president of the village appeared upon the scene and called out special policemen and the members of the fire department and the laborers were driven off the street and were not permitted to complete the construction of the tracks begun by them at that place. This action followed and the court after a trial has found that the carrying out of such work constituted a nuisance, that in attempting to do it the defendants were trespassers, and has granted a judgment containing a permanent injunction enjoining the defendants from constructing a railroad at the point in question without first having obtained the consent of the local authorities having control of the streets, and from such judgment all the defendants have appealed.</p>

<p>Ejectment — facts raising question of title by adverse possession — ouster of plaintiff— admission in answer.</p> <p>Although the plaintiff in ejectment after alleging that the defendant tore down fences and unlawfully took possession of a portion of the land further alleges that she herself is in possession, the court should not dismiss the complaint upon the theory that the plaintiff has failed to prove her own title or an ouster by the defendant, if she gives evidence that she and her predecessors had fenced in the disputed strip of land for over twenty years so as to constitute adverse possession, that the defendant tore down the fences and prevented the . plaintiff from rebuilding the same and when the answer itself alleges title in the defendant.</p> <p>Any defect in the plaintiff’s proof as to ouster is supplied by the defendant’s allegation of title.</p> <p>Chester, J., dissented, with memorandum.</p>

<p>Appeal by the defendant, The Germania Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 26th day of October, 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 11th day of November, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Eminent domain — assessment of damages — evidence — award not . inadequate.</p> <p>While commissioners appointed to ascertain damages in condemnation proceedings are not at liberty to disregard the evidence of the parties showing the value of lands taken, they may act upon personal knowledge acquired by independent inquiry and are unhampered by technical rules of evidence.</p> <p>Where the. lands taken were assessed for taxation at $1,300, an award of $7,750 will not be held inadequate although witnesses produced by the condemnor valued the lands at over $9,000.</p>

<p>Appeal by the defendant, James EL Starin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 1st day of October, 1908, upon the verdict of a jury for $550, and also from an order entered in said clerk’s office on the 2d day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Sale of electric power — recovery of overpayments made by mistake — burden of proof — contract of sale construed.</p> <p>A vendee of electric power, who through the mistake of his own agent in making computations on memoranda furnished by the vendor as to power consumed, has paid the vendor sums in excess , of those due under the contract of sale, can recover the overpayments where it could not be discovered that over-payments were made except by a somewhat involved process of mathematical computation, if the vendee’s agent had no authority to deviate from the written contract and there was- no ratification of his unauthorized acts, but on the contrary a repudiation thereof as soon as the real facts were ascertained.</p> <p>Money paid under a mistake of fact may be recovered back, however negligent the party paying may have been in making the mistake, unless the payment has caused such a change in the position of the other party that it would be unjust to require him to refund.</p> <p>The burden of showing that it would be inequitable to allow a recovery of moneys paid by mistake rests upon the party resisting repayment.</p> <p>Contract for the sale of electric power construed.</p>

<p>Appeal by the plaintiff, Elizabeth Murray Bussell, from an order of the Supreme Court, made at the Franklin Trial Term and entered in the office of the clerk of the county of Franklin on the 25th day of July, 1908, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial of the action.</p> <p>The action was bi'ought to recover $4,000 claimed by plaintiff that she loaned to the defendant’s decedent May 21, 1906. The "deceased was a widower who owned considerable real estate and was in poor health. He lived on a farm on the Canadian border. Plaintiff was his housekeeper. A brief history of events in cln’onological order is as follows: In the fall of 1905, deceased^ being then ill in bed, made a will known as the “ Canadian "Will,” wherein he devised to the plaintiff the home farm on which they weTe living with the personal property thereon. It was shown that' he made statements to different persons to the effect that plaintiff had taken good care of him and that she wonldbe well paid for her services. In February, 1906, he sold some of his land and deposited $4,000 of the proceeds in á bank in Huntingdon, Canada.' Plaintiff went to the bank and made the deposit for him in his name, March 1, 1906, one La Duke, a notary of Huntingdon who had drawn the will and who seems to have been doing more or less business for Amlot, was sent for and was directed by him to draw a check for $4,000 to the order of plaintiff on'the Canadian bank. He returned to his .office at Huntingdon, a number of miles distant, drew the check there and seems to have mailed it to him. Amlot signed the check and delivered it to plaintiff who ón March fifth appeared at La Duke's office with .the check and together they went to the bank where plaintiff procured a ■ Boston draft payable- to her own order for the $4,000 then on deposit in Amlot’s name. Some informa- • tion or instructions seem to have been given by Amlot to La Duke 1 concerning this check which La Duke -was not permitted to testify to at the trial against the Objection of plaintiff. On March 14, 1906, after the above transaction, the home farm which Amlot had willed to plaintiff was sold for $4,000, $1,700 being paid down and a mortgage taken for the rest. On April second plaintiff deposited the Boston draft for $4,000 in the Malone bank to her own order having held the draft for about a month, opening a new account for that purpose, and she also on the same day deposited to the credit of Amlot’s account in the same bank the $1,700 paid on the home farm. Amlot had previously had an account in that bank but it seems at that time to have been entirely balanced. Thus matters stood until May 21,1906, when plaintiff gave to Amlot her check on the Malone bank for $4,000. That is claimed to be the loan in question. Her check was oil the following day deposited to Amlot’s credit in the Malone bank. Shortly thereafter both went to Saratoga where they remained some time, and Amlot deposited in the Saratoga Trust Company in his own name $5,700 drawn from the Malone bank, being the amount of plaintiff’s check of $4,000 and the $1,700 paid on the home' farm. In the fall of 1906 decedent returned to Franklin county, living in the village of Fort Covington, plaintiff keeping housé for him as before. He seems to have been in expectancy of death and desirous of adjusting his affairs-. In November lie procured a piece of real estate to be purchased for $575 and placed in plaintiff’s name. In December he deeded to her a tract of thirteen acres of land adjoining. There is a dispute as to who furnished the consideration for the first parcel, but plaintiff makes no claim that she paid for the second. If she did pay for the first she has not shown where the money came from and it is claimed by defendant that it came from Amlot.</p> <p>Plaintiff gave evidence of a number of admissions made, by the deceased to the effect that he liad borrowed money of her. Most of these admissions were proved by her relatives. It does not appear for what purpose Amlot received the loan, if such it was. He evidently did not need to use the money, because it was deposited in the Saratoga Trust Company to draw interest. In April of the following year more than the $4,000 was returned to the Malone bank to his credit. The trial justice set aside the verdict of the jury in plaintiff’s favor and .the latter appeals.</p>

<p>Appeal by John S. Davenport, as receiver, etc., from so much of an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 9th day of September, 1908, as fixes the compensation of Hon. John C. Davies, as referee, in the proceeding relating to the fixing of the charges and fees of Harry S. Patten, as attorney for' the receiver, Joseph B. Mayer, and directs payment of such com-, pensation by the appellant.</p>

Appeal by Henry E.- Tremain and another from air order of the Supreme Court, made at the Saratoga Special Term an'd entered in the office of the clerk of the county of Warren- on the 3d day of ■ February, 1909, denying the appellants’ motion for a new taxation . of costs. ^

Appeal by the defendant, Alfred Thayer, from an order of the County Court of Chemung county, entered in the office of the clerk of said county on the 3d day of September, 1908, denying the defendant’s motion for a new trial.

• Appeal by the defendant, the United States Lace Curtain Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 28th day of September, 1908, upon the verdict of a jury, and also from an order made on the 25th day of September, 1908, and entered in said clerk’s office, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the petitioner, Maynard N. Clement, as State Commissioner of Excise, from an order of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 18th day.of November, 1908, dismissing, the petition herein.</p>

Appeal by the defendant, the John Single Paper Company, Limited, from an order of the Supreme Court, made at the Greene Special Term and entered in the office of the clerk of the county of Greene on the 4th day of January, 1909, denying, the defendant’s motion to change the place of trial from the county of Greene to the county of Onondaga for the convenience of witnesses.

Appeal by the defendant, Frank Anderson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 29th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of ¡November, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the relator, the New York, Ontario and Western Railway Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 1st day of December, 1908, denying the relator’s motion to require the defendant to make an amended or further return to a writ of certiorari to review an assessment under the Special Franchise Tax Act.</p> <p>The relator, f cl aimin g to be aggrieved by a special franchise assessment of $15,000 for its railroad in one of the streets of the village of Hamden, Delaware county, procured a writ of certiorari directed to the Tax Commissioners commanding them to make return of their proceedings, decisions and actions in the premises, and all and singular the evidence, documents, records or papers before them or which were submitted to them concerning the sáid matter, together with all the protests, affidavits and papers offered or filed with them in relation thereto “to the end that such decisions and actions of said board may be reviewed and corrected on the merits by this court and the aforesaid error of said board may be corrected according to law and as to the court may seem just.”</p> <p>The return to the writ traversed the averments of the petition as to the injustice, overvaluation and inequality of the assessment and averred “ that at and previous to the time of making such assessment they had before them certain facts and information other than those communicated to them on behalf of the relator. That at and previous to the time when the assessment and valuation of the special franchise of the relator was made by your respondents, they had made inquiry, examination and investigation as to the value of the special franchises of the yelator in said town.’ That such inquiry, examination and investigation was made by and on behalf of this board and through its agents and employees who had obtained knowledge and information and formed opinion as to the value of the special franchise of the relator assessed, and in connection therewith of the value of the property of the relator, real and personal, in said town.; and. from such inquiry, examination and investigation, together with the papers and documents produced before it, it. decided the value of the special franchise of the relator to be the' sum of $15,000. * * * That the facts pertinent and material ¡to show the value of the property assessed on the roll which were considered by your respondents and the grounds for the valuation of such special franchise by.them, included the value of the real estate of such corporation situate in the streets, highways and public places in said town, aside from and irrespective of the use and right to use such streets, highways and public places, together with the value of the use and the right to use .said streets, highways and public places of said town by the relator, as such value has been fixed and determined upon the, evidence, papers and documents before said board; which papers and documents give, among other tilings the cost of the property, the income therefrom and other facts going to show the value thereof; and from examination, investigation and inquiry made by and on behalf , of the Said board as to the value of said property.”</p> <p>Upon the petition, writ and return a motion was made at Special Term for a further return and that the defendants be required ■ to return all the facts and information, other than such as were Communicated to them on behalf of the relator, that they had before them 'at and previous to the time of making the assessment, all papers, records and proceedings showing the inquiry, examination and investigation made by them as to the valuv of the special franchise, all reports, certificates, opinions and statements made and given to the respondent by its agents, servants or employees, all facts and circumstances relating to the value of the property or the special franchise, considered by the board in making the assessment, the valuation placed upon each special franchise in said town, the value of the rehator’s real estate as found by the board included in such franchise and the value of the use and the right to use the streets and public places included therein.</p> <p>The motion was denied, and from the denial this appeal is taken,</p>

<p>Cross-appeals by the plaintiff, Josephine A. Warner, and. by the defendant, The State of New York, from a judgment of the Court of Claims of the- State of New York in favor of the claimant for $400, entered in the office of the clerk of said court on the 18th day of June, 1908.</p>

Appeal by Anna E. Morton, individually and as executrix, etc., from a decree-of the Surrogate’s Court óf the county of Rensselaer, entered in said Surrogate’s Court on tho 29th .day of October, 1908,' in a voluntary accounting by Anna E, Morton, as executrix, etc., of Catherine McDonough, deceased, of the accounts of said Catherine McDonough, as administratrix, etc., of Ann McDonough, deceased.

<p>Appeal by the plaintiff, Rosanna Batchelor, from a judgrnen.t of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 21st day of Decernher, 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>Appeal by tbs plaintiffs, David Bodenstein and another, from an order of the Supreme Court, made at the New" York Special Term and entered in the office of the clerk of the county of New York on the loth day of February, 1909, vacating an order made on the 8th day of February, 1909.</p>

<p>Election Law — publication of list of registration and polling places, etc, — duty of ¡board of elections —liability for printing.</p> <p>The statutory duty of the board of elections to designate newspapers within the city of New York to publish the list of registration and polling places and .the boundaries of election districts is continuous, and there is no provision in the statute authorizing the board to make a contract for the completed publications which would restrict the .power of the board to change the newspapers after . one or more publications had been made. ' "</p> <p>Where the board of elections of the city of New York designated certain newspapers, advocating the principles of the Democratic party, to publish such notices, and- after the publication of the notices by such newspapers for two days the board, acting under a mandamus- erroneously granted, rescinded its resolution and appointed other newspapers; this- action of the board, • although subsequently .annulled-upen the reversal of the -judgment in the-mandamus proceeding,, is a legal authorization for the publication- of the notices by the papers named in-the second resolution, and the costs thereof are a charge on the city of New York, under sections 11 and 18 of the’Blection Law.</p>

<p>Appeal by the defendant, Otto J. Kerb, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of December, .1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint.</p>

Appeal by Frederick Dietz, individually and as trustee, etc., and' others from a.decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 15th day of March, 1909, appointing the Farmers’ Loan and Trust Company of the city of Hew York a trustee of the trust created by the last will and testament of Robert E. Dietz, deceased, for the benefit of Anna Dietz, in the place of William Henry White, deceased.

Appeal by the defendant, Albert 'Mayer, from a judgment of the Court of General Sessions of the Peace in and for the county of New York in favor of the plaintiff, rendered on the 30th day of October, 1908, convicting the defendant of a violation of section 303 of the Penal Code, and also from orders rendered on the 30th day of October, 1908, denying the defendant’s motions for a new trial and in arrest of judgment.

Appeal by the defendant, the Baltimore and Ohio 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 Aew York on the 5th day of Aprilf 1907, 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 4th day of April, 1907,. denying the defendant’s'motion for a new trial made upon the minutes.

<p>Sale—breach by vendee prior to manufacture of goods—measure of damages.</p> <p>Where the trial judge correctly charged that a vendor of goods after a breach by the vendee before the goods were fully manufactured was entitled to recover the contract price less the cost of fulfilling the contract on his part and less the profit which he realized by a sale of some of the goods, but the jury disregarding the instruction, rendered a verdict without deducting the profits made by the vendor on the sale, the verdict will be set aside and a new trial granted. Laughlin, J., dissented.</p>

Appeal by the defendant, Henry M. Susswein, 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 19th day. of October, 1908, upon the verdict of a jury; also from so much of an order entered in said clerk’s office on the 20th day of October, 1908, as denies the defendant’s motion for a new trial made upon the minutes, and also (as stated in the notice of appeal) from an order entered in said…

<p>Beal property — contract to sell lands — novation — when grantor not entitled to vendor’s lien.</p> <p>Where a contract for the sale 'of lands required the vendee to pay a certain sum in cash and secure the balance of the purchase price by purchase-money mortgage, but on the execution f the deed the grantee paid and the grantor accepted a larger sum than that called for by the lontract, together with a purchase-money mortgage for the balance of the agreed price, there was a novation, and the grantee is not entitled-to maintain a suit in equity to establish a vendor’s lien.</p> <p>As the grantor accepted the excess cash payment in place of the mortgage, he is not entitled to recover interest on the excess from the date of the original contract to the time of payment.</p>

Ceetioeaei issued out of the Supreme Court and attested -on the . 18th day of June, 1907, directed to Theodore-A. Bingham, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had concerning the removal of the relator from the police department of the city of New York.

<p>Master and servant—negligence— injury by cars used in- construction of building — Employers’ Liability Act -— when employee not invested with powers of -superintendence.</p> <p>Under the Employers’ Liability Act a master is liable for the negligence of a superintendent or one acting as such within the contemplation of the statute in signaling a train to go ahead, when he should have, known that an employee-was engaged in clearing the track and had not reached a point of safety.</p> <p>The plaintiff, an infant, employed as a laborer in the construction of a building, was injured by cars used to bring material for the work. The master employed a general superintendent assisted by foremen supervising the execution of different branches of the work. Plaintiff was directed to clear the track by one who was employed chiefly' as an interpreter for Italian laborers, and this person, standing on a car, gave the signal for it to move before the plaintiff had reached a place of safety. Neither the general superintendent nort-he foreman superintending that portion of' the work was present. On all the evidence, held, that the interpreter was not a superintendent within the meaning of the Employers’ Liability Act and that his negligence was not chargeable to the master.</p>

<p>Appeal by the defendant, Max Richter, 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 16th day of April, 1909, denying the defendant’s motion to vacate or to modify an order for his examination before trial.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Judgment — misnomer of defendant — when identity not question for jury.</p> <p>Where in an action upon a judgment it appears that the defendant although named Edgar L. Laing, while personally served and appearing without objection, was described in the judgment as Edward L. Laing, and that 1m actually signed the notes on which the original judgment was recovered and appeared in supplementary proceedings under the name of Edward L. Laing, without objec-. tion, it is error to submit the question of the defendant’s identity to the jury.</p> <p>Under the circumstances, there being no defense other than the misnomer, the court should have directed judgment for the plaintiff.</p>

<p>Process — service upon agent of foreign corporation — resignation of agent unaccepted. ■</p> <p>A judgment and attachment against a foreign insurance company should not be vacated where the service was made upon a managing agent' of the corporation within this State, merely because at the time of service he had written to his principal tendering his resignation hut offering to act for the principal until- the appointment oE a new agent, where the resignation was not then accepted and no other managing agent had been appointed.</p>

<p>Appeal by the defendants, Leon Pizer and others, executors, etc., from an order of the Supreme Court, made at the New York-Special Term and entered in the office of the clerk of the county of New York on the 30th day of April, 1909, denying the defendant’s motion to dismiss the complaint and for judgment in their favor upon the merits on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p>

Appeal by the defendants, Lucy E. Lee 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 December, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1908, denying the defendants’ motion for a new trial made upon the minutes.

■Appeal by the defendant, the Interborough Rapid Transit Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 8tli day of January, 1909, affirming a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered on the 14th day of July, 1908, and also from the said judgment of the Municipal Court.

Appeal by the plaintiff, Phil H. Moore, 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 25th day of January, 1909, denying the plaintiff’s motion for a discovery and inspection of certain books and papers of the defendant.

Appeal by the defendant, Beakes Dairy Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of November, 1908, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered on the 25th day of July, 1908.

Appeal by the defendant, Anna Bvnch, 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 January, 1909, upon the-decision of the court rendered after a trial at the New York Special Term.

<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 .plaintiff, John H. Freit, by David W. Rockmore, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 1:9th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of. October, 1908, denying the plaintiffs motion for a new trial made upon the minutes.

Appeal by the 'defendant, the American Boole Company* from an interlocutory judgment of the Supreme Court it! favor of the plaintiff, entered in the office of the clerk of the county of Hew York on .the 16th day of January, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint. The opinion of the Special Term is reported in New York University v. American Book Co. (62 Misc. Rep. 122).

Appeal by Frederic Grant, individually and as administrator, etc., and by the American Surety Company of Mew York from part and by Thomas H. O’Connor from the whole of a decree* of the Surrogate’s Court of Mew York county, entered in* said ¡Surrogate’s Court on the 9th day of October, 1908,

, Appeals by tbe plaintiff, Maria Hess, individually ■ and as executrix, etc.,, and by the defendants, George Hess and others, from so much of a judgment of -the Supreme Court in favor of certain of ■the defendants, entered in the office1 of the clerk of the county of Hew York on the 1st day of February, 1909, upon- the decision of the court, rendered after a trial at the Hew York Special Term, as adjudges that the executrix and executors have not a power of sale and…

Appeal by the defendant, Harry M. Smith, individually, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 3d day of March, 1908, confirming tiie report of a referee and enjoining the defendant Rodman J. Pearson from prosecuting an action against the plaintiffs for the value of certain merchandise purchased by their testator from the firm of C. S. Locke & Smith, and also an appeal by the…

Appeal by the plaintiff, The City of New York, from that part of a judgment of tlié 'Supreme Court which is in favor of the defendants 'James 'Baird arid James Evérard, and which was -énteréd in'-:thé office of the clerk of the county of New York on the 21st.day of October, 1908, upon the dismissal of the complaint by direction of the qou-r-t.ns to'-said defendants, after a trial,at-the New York Trial Term, a verdict in favor of the plaintiff against the-defendant William…

<p>Appeal by the plaintiff, Leroy M. Lyon, 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 January,. 1909, upon the dismissal of the complaint by direction of the court it the close of the plaintiff’s case on a trial at the New York Trial Term in an action to recover for services in selling the property of the defendant. '■</p>

Appeal by the defendant, Robert Fridenberg, 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 Rew York on the 11th day of January, 1909.

<p>Attorney and client — condemnation proceedings — lien on award — debtor and creditor—judgment against estate of testatrix— rights of creditors as against devisees — costs — when single bill of costs will be divided.</p> <p>Where the devisees of certain lands upon which there were incumbrances which they were under no personal hligation to pay, agreed to give their attorneys, • in a condemnation proceeding, ten per cent of the award as compensation for services, the attorneys have a lien on the award only to the extent of ten per cent of the surplus after payment .of the incumbrances.</p> <p>It is only where the rights of parties are incident to and dependent upon the land taken in condemnation proceedings that the award is deemed to partake of the nature of realty and where no such equitable consideration exists an award is merely personal property.</p> <p>Where property devised by a testatrix is taken in condemnation proceedings, the executors of an unsecured creditor of the testatrix who obtained judgment on their claim after the debtor’s death, but have made no attempt within the statutory "period to sell, her real property to. satisfy their judgment, have no lien either legal or equitable on the award for the amount of their judgment.</p> <p>Their remedy is an action against the devisees of the property to Charge them -under sections. 1837-1860 of the. Code .of Civil Procedure..</p> <p>Where, upon. the. trial the executors of the..decease'd creditor contested the . right of. the .attorneys in the. condemnation proceedings to a lien on .the award superior to their own and a judgment was .entered in their favor, of which the attorneys in the condemnation proceedings and’ one of the infant devisees secured a reversal on appeal, but one bill of .costs- Under the circumstances ! presented will be awarded- to- be- divided between the two appellants..'</p>

Appeal by the defendant, Abraham Van Siclen, 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 12th day of April, 1909, referring the cause to a referee to hear and determine.

<p>Appeal by the plaintiff, Ernest M. Burrow, 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 8tli day of March, 1909, denying the plaintiff’s motion for the substitution of the Marceau Company, Limited, as defendant in the place of the respondent.</p>

<p>Appeal by the plaintiff, Pennington Whitehead, as substituted trustee, etc., from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day. of September, 1908, upon the report of the referee, as surcharges the plaintiff’s accounts and denies him commissions.</p>

Appeal by the defendant, the United Engineering and Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, enteredin the office of the clerk of the county of Hew York on the 30th day of December, 1908, upon the verdict of a jury for $10,500, and also from an order entered in said clerk’s office on the 2d. day of January, 1909, denying the defendant’s, motion for a new trial made upon the minutes.

Appeal by the defendant, Victor Shanley, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 28th day of Hay, 1908, convicting the defendant of the crime of forgery in the first degree, and also from an order entered in said clerk’s office on the same day denying the defendant’s motions for a new trial and in arrest of judgment.

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 óf the county of Mew York on the 26th day of December, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of December, 1908, denying the defendant’s motion for a. new trial made upon the minutes.' ■

Appeal by the defendant, the Brooklyn Bottle Stopper 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 20th day of April, 1909, granting the plaintiff’s motion for an inspection of the books and papers [of the defendant.

Appeal by the plaintiff, Karl Wehn, 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 1st day of July, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of September, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, McArthur Brothers Company, a foreign corporation, from an order of the Supreme Court, made at the ¡New York Special Term and .entered in the office of the clerk of the county of ¡New York on the 17th day of May, 1909, denying the defendant’s motion to preclude the plaintiff from giving certain evidence or in the- alternative to require him to furnish a bill of particulars.

<p>Receiver—suit to dissolve partnership.</p> <p>In an action to dissolve a partnership, until a final decree has been entered,' a receiver ought not to be appointed unless there is danger that the partnership property will be removed beyond the jurisdiction of the court, lost, materially injured or destroyed.</p> <p>Thus, where the defendant partner is successfully conducting a hotel business, is making good profits and keeping proper accounts, and is financially responsible, a third person will not he appointed receiver pendente lite. The defendant should be permitted to continue the business until final judgment upon giving the undertaking prescribed in section 1947 of the Code o£ Civil Procedure.</p>

Appeal by the defendants, Clifford L. Miller and another, from that part 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 24th day- of February, 1909, which grants the plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiff, Milton Schnaier & Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 16th day of December, 1908, reversing a judgment of the City Court of the city of New York in favor of the plaintiff, entered on the 8th day of June, 1908, and granting a new trial of the action.

' Appeal by the plaintiff, Mary E. H. Glyn, 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 21st day of Decernher, 1908, upon, tlie dismissal of the complaint by direction of the _ court at the opening on .a trial at the New York Trial Term.

Appeal. by the plaintiff,.Florence L. Goffe, from an interlocutory 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 3d day of February, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling. the, plaintiff’s demurrer to a portion of the amended answer.

<p>Appeal by Jessie Gillender. from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of. April, 1909, amending the proceedings herein by discontinuing a. portion thereof.</p>

<p>Oósts — subdivision 5 of section 3228, Code Civil Procedure, construed — "when defendant entitled to costs if plaintiff recovers less than fifty dollars. ></p> <p>Sections 3228 and 3229 of the Code of Civil Procedure, in so far as they govern costs in actions on breach of contract brought in the Supreme Court in the county of New York, should be construed to mean that the defendant is entitled to costs if the plaintiff recovers less than fifty dollars, but is not entitled to costs if the plaintiff.recovers more than fifty dollars but less than five hundred dollars,</p> <p>The statement in subdivision 5 of section 3228 that “ the fact that in any action a plaintiff is not entitled to costs under the provisions of this subdivision shall not entitle the .defendant to costs under the next following section,” applies only to cases in which the plaintiff is deprived of costs solely under the terms of said subdivision.</p>

Cross-appeals by the plaintiffs, Joseph W. Masters and another, and by the defendant, Frederick W. Brooks, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 4th day of January, 1908.

<p> Billa and notes —title —principal and agent— termination of relation. </p>

<p> Practice—motion for new trial —failure to request dismissal of complaint. </p>

<p>Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the clerk’s, office, of Rockland county on September 16, 1908, and also from an order entered in the same office on September 28, 1908, denying the defendant’s motion for a new trial.</p> <p>Judgment modified by striking out the provision for extra allowance, and the judgment as thus modified and order denying motion for a new trial affirmed, without costs. No Opinion. Hirschberg, P. J., Woodward, and' Miller, JJ., concurred; Jenks, J., read for reversal, with whom Rich, J., concurred.</p>

<p>Pleading — MU of particulars.</p>

<p>Appeal from a judgment entered in the office of the clerk of the county of New York on the 26th day of April, 1907, dismissing the complaint after a trial at Trial Term.</p>

<p>Appeal from an order, entered in the Hew York county clerk’s office on the 12th day of March, 1909,. awarding alimony and counsel fee.</p>

<p>Appeal from an order, entered in the Hew York county clerk’s office on the 33d day of March, 1909, denying a motion of plaintiff to restore the action for trial, and also from an order of discontinuance entered on the 19th day of February, 1909, and resettled by an order entered on the 8th day of March, 1909.</p>

<p> Deposition —examination of party. </p>

<p>Pleading — bill of particulars — sale.</p>

<p>Pleading — bill of particulars — action for services.</p>

<p>Negligence — master and servant — reversal of judgment.</p>

<p>Appeal from a summary order, entered in the Mew York county clerk’s office . on the 27th day of April,. 1909, requiring appellant to turn over certain papers.</p>

<p>Appeal from an order denying a motion to vacate an order for the examination of a party before trial.</p>

<p>Appeal from an order, entered in the Hew York county clerk’s office on the 11th day of February, 1909, denying a motion to strike from the complaint certain allegations as irrelevant and redundant.</p>

<p>Appeal from an order, entered in the Hew York county clerk’s office on the 16th day of March, 1909, compelling an attorney to deliver papers in pending litigations oil certain conditions, and directing a reference to determine the amount of respondent’s lien.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 13th day of December, 1908, granting a motion for a bill, of particulars.</p>

<p>Appeal from an order, entered on the 7th day of May, 1909, denying a, motion for a preliminary injunction.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 33d day of April, 1909, directing judgment upon the pleadings against the defendant Winthrop Bealty Company unless it serve an amended answer within, ten days, etc.</p>

<p>New York city—debt limit—value of real' property—franchises — liabilities — sinking fund—outstanding contract.</p>

<p>Practice — verdict set aside by direction of the court — verdict in prior action set aside on appeal as against the weight of evidence — when new trial granted.</p>

<p> Deposition—commission to obtain evidence of justification of libel. ■ </p>

Appeal by the defendant from a judgment in favor of the plaintiff, entered on the 21st day of January, 1909, upon a verdict directed by the court, and also, from an order entered on the 19th day of January, 1909. Judgment and order affirmed, with costs, on Cohen v. American Surety Co. (123 App. Div. 519; S. C., 192 H. Y. 227). Present—Patterson, P. J., McLaughlin, Laughlin, Houghton and Scott, JJ. (Dissenting opinion by Laughlin, J.; Scott, J., concurring.)

<p>Appeal from an order, entered on the 3d day of March, 1908, confirming the report of a referee.</p> <p>Order affirmed. Settle order on notice.</p>

<p>Appeal by defendant from an order, entered on the "36th day of January, 1909, denying her motion to vacate an inquest.</p>

<p>Bankruptcy — agreement by attorney to pay creditor’s claim if he signed petition — illegality — motion to dismiss complaint.</p>

<p>Bills and notes—pleading—failure to allege ownership at time of receiver's appointment — demurrer.</p>

Appeal by the defendant from a judgment of the Special Term in favor of the plaintiff, entered in the office of the clerk of Kings county on the 9th day of October, 1908.

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Kings county on the 24th day of October, 1908, and also from an order entered in said office on the 30th day of November, 1908, denying a motion for a new trial on the minutes; Judgment and order affirmed, without costs as to the first cause of action.

<p>Vendor and purchaser — broker’s commission.</p>

<p>Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., who dissented.</p>

<p>Negligence — municipal corporation — snow and ice — injuries resulting from fall.</p>