Volume 133 — New York Appellate Division Reports

Appeal by the plaintiff, The City of New York, 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 29th day of October, 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, and also from an order entered in said clerk’s office on the 28th day of October, 1908, directing the dismissal of the complaint.

<p>Partnership — when parties cannot be held as partners — principal and •agent — broker’s action for commissions.</p> <p>Even though joint owners of property, hold themselves out as partners when in fact they are not such, they cannot be held as partners by one who did not act 'in reliance upon the representation.</p> <p>Broker’s action for commissions in effecting a :sale of tugboats. On all the evi- ' dence, held, that the plaintiff was not entitled to recover.</p> <p>Houghton, J., dissented, with memorandum.</p>

<p>Appeal by the' plaintiff, Michael C. Cunningham, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of -the county of Hew York on the 26th day of January, 1909, upon the decision of the court, rendered after a trial at the'Hew York Special Term, sustaining the defendants’ demurrer to the complaint and dismissing the said complaint.</p>

<p>Appeal by the defendants, Frederic Currie and another, individually, etc., and others, 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 12th day of January, 1909, upon the decision of the court, rendered after a trial .at the Hew York Special Term, overruling the defendants’ demurrer to the complaint.</p>

<p>Appeal by the defendants, Walter J. Currie and others, copartners, etc., from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 12th day of January, 1909, upon the decision of the court, rendered after a tidal at the New York Special Term, overruling the defendants’ demurrer to the complaint. x</p>

<p>Appeal by the plaintiff, William II. Schmohl, 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 29th day of October,. 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Certiorari issued out of the Supreme Court and attested On the 20th day of January, 1909, directed to M. Warley Platzek, one of the, justifies of the Supreme Court, commanding him to certify and return to the office of the clerk of the county of Hew York all and singular the proceedings had before him concerning his determination in adjudging William S. Brewer guilty of criminal contempt of court.</p>

Appeal .by the plaintiff, William D’Alton Mann, from an interlocutory 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 9th day of March, 1909, upon the decision of the court, rendered after a trial at the ¡New York Special Term, overruling the plaintiff’s demurrer to a portion of the answer, and also (as stated in the .notice of appeal) from the said decision upon which the judgment appealed from…

<p>Appeal by the defendant, Margaret Teal, from a judgment of the Court of General Sessions, of the Peace in and for the county of Mew York, rendered on the 26th day of February, 1909, convicting the defendant of the crime of attempted subornation of perjury.</p>

<p>• Appeal by the defendants, Peter F. Collier 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 23d day of June, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Agnes K. Murphy Mulligan and another, from a judgment of the 'Supreme Court, in .favor of the plaintiffs, entered in the Gffice of the clerk of' the county of Rew York on the 13th day of January, . 1909, upon the verdict of a jury, and also from an order bearing date the 12th day of January, 1909, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes, and also, (as stated in the . ■ notice of appeal), from an order béaring date the Tth day of January, 1909, and entered' in said clerk’s office, directing the entry of .judgment. .</p>

<p>Appeal by the defendant, William A. MacCormack, 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 2éth day of May, 1909, denying the said 'defendant’s motion for leave to serve a supplemental answer.</p>

<p>Mandamus—reinstatement of public officer—irrelevant allegations in answer stricken out.</p> <p>Where on demurrer to an alternative writ of mandamus to compel the reinstatement of a municipal superintendent of highways it has been held by the appellate court that the relator should not have been removed until charges had been preferred and an opportunity given to make an explanation, allegations in the answer charging the relator with certain acts of misconduct committed prior to his removal will be stricken out as irrelevant. This, because to allow the allegations to stand would enable the respondent to evade the statute by showing that charges might have been preferred prior to the removal. Scott and Clabke, JJ., dissented, with Opinion.</p>

<p>Appeal by the defendants, Augustus E. Keller and others, from an order of the Supreme Court, made at ,the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of April, 1909, appointing a receiver of the property of the defendant A. E. Keller & Co., Incorporated.</p>

<p>Contract—counterclaim asking reformation—practice—jury trial — misrepresentation — irrelevant evidence — when error not cured by attempt to strike out.</p> <p>Where in an action on a written contract the answer alleging that it does not express the real agreement between the parties by a separate defense and counterclaim seeks to have the contract reformed, an agreement for the trial of the issues at a Trial Term and the submission of the reformation of the contract to a jury is irregular. In such case the proper practice is to procure an order directing separate trials of the separate issues in the appropriate fora, and where the equitable counterclaim if established will determine the whole controversy it should be .tried first.</p> <p>Defendant, a bank president, entered into a contract with plaintiff to pay him §4,000 if he should secure certain agreements. Plaintiff performed the contract. Defendant refused to pay because of difficulties with plaintiff’s father who owned the land occupied by the bank, arising out of the bank’s failure two months after the signing of the contract to exercise an option for the renewal of its lease. An action was brought by plaintiff to recover under the contract and defendant set up a counterclaim asking for a reformation on the ground that the plaintiff had misrepresented the legal effect of the contract. On the trial defendant was allowed to prove that an action brought by the bank to compel plaintiff’s father to renew the lease bad been discontinued upon terms unfavorable to the bank, and other irrelevant matters calculated to impress . the jury with the hardship which the bank had suffered in consequence of its failure to exercise its option of renewal. This was done on the theory that the ■jury"might impute to plaintiff a fraudulent design when the contract was signed by taking advantage of an improbable oversight by defendant two months later, and the trial judge so charged the jury.</p> <p>Held, that the admission of the evidence was error:</p> <p>That as its admission might well have induced the verdict, an attempt to strike out the evidence after the charge was delivered did not cure the error.</p>

<p>Injunction— contract of employment —- covenant not to engage in other business — mutuality.</p> <p>Where in a suit by a corporation to enjoin its general manager from entering the employ of a competitor in violation of a covenant in his contract of employment to engage in no other occupation during the period of the contract,, the prayer for relief rests upon the ground that defendant by his acts threatens to injure the plaintiff by building up a competing business upon the foundation of the special knowledge of trade secrets, and skill acquired solely during his employment by the plaintiff and is based upon the proposition that defendant’s ability to injure plaintiff by advancing the interest of the competitor is special, unique and extraordinary, owing to the confidential nature of his position, the complaint is not demurrable since the court has power to grant relief upon the facts disclosed.</p> <p>A contract of employment is not void for lack of mutualitv'because the employer does not by precise words engage to employ the employee for a specified term or by reason of the fact that the employer reserves the right to terminate the contract .upon thirty days’ notice.</p>

<p>Appeal by the plaintiff, Carl A. Dahlstrom, 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 17th day of April, 1909, pursuant to an order entered in said clerk’s office on the 16th day of April, 1909, dismissing the complaint, and also from the said order upon which the judgment appealed from was entered.</p>

<p>Appeal by the plaintiffs, Maria E. G. McK. Ward and another, 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 30th day of April, 1909, amending a decision made after a trial at Special Term by striking out a finding of fact.</p>

<p>Appeal by the defendant, Meyer Auerbach, from a judgment of the Supreme Court in favor of the plaintiff, enteréd in the office of the cleric of the county of Mew York oh the 20tli day of March, 1909, pursuant to.an order made at the Mew York Special Term ,and entered in said clerk’s office on the 12th day of March,, 1909, upon the plaintiff’s motion for judgment on the pleadings on the ground that the- amended answer was-frivolous, with notice of an intention to bring up for review upon such appeal the said order upon which the judgment was entered.</p>

<p>5Tew York city — park ordinances — vehicles on Riverside drive — power of park department. ,</p> <p>Riverside drive in the city of Hew York, which had been laid out by the park department under chapter 697 of the Laws of 1867, was declared by section 2 . of chapter 447 of the Laws of 1876 to be one of the parks and public places of the city of Hew York and placed under the control of the park department, where it has since remained.</p> <p>It is within the jurisdiction and duty of the park department of the city of Hew York reasonably to regulate traffic on Riverside drive, and especially to protect the trees along the drive, and section 34 of the general park ordinances of the city of Hew York, which provides that “ Ho vehicle of any kind or description measuring over ten feet from the tread of the wheel to the highest portion of the vehicle, whether propelled by muscular or motive power, shall be allowed to run along any driveway of any park or parkway under the jurisdiction of the department of parks,” is a reasonable regulation and within the power of the park department as conferred by section 610 of the revised charter (Laws of 1901, chap 466, as amd.).</p> <p>The Fifth Avenue Coach Company by selecting Riverside drive as a route thereby subjected itself to the reasonable regulations of the park department and is properly convicted of a violation of said section 34 of the park ordinances for driving on Riverside drive a double decked motor omnibus which exceeded the prescribed height by more than a foot.</p>

<p>Execution — garnishee—State employee — amendment to section 1391 of the Code of Civil Procedure not retroactive.</p> <p>The amendment to section 1891 of the Code of Civil Procedure made by chapter 148 of the Laws of 1908 is not.retroactive and an execution against a judgment debtor’s wages or salary cannot be issued on a judgment recovered before that date unless the judgment was, for necessaries furnished or work performed in the family as a.domestic.</p> <p>In the absence of express statutory'provision the wages or salary of a public employee although due cannot be reached by execution or in proceedings supplementary thereto prior to the payment of the same to him.</p> <p>The wages or salary of a State employee cannot be reached by an execution under section 1391 of the Code of Civil Procedure as amended.</p>

<p>Court—power to amend judgment — finding omitted toy inadvertence — costs.</p> <p>A finding of fact made by a judge after trial, although not incorporated in his • formal decision, stands as one of the findings in the case.</p> <p>The incorporation of such a finding into the formal decision upon a motion to amend and resettle the decision and judgment is. no ground for appeal.</p> <p>While a court after judgment may not alter its decision upon the merits so as to affect the substantial rights of a party, yet it may allow an amendment correcting, a mistake or supplying am omission due to an oversight of the trial judge. Where upon the trial of air equity action the judge found'that the damages sustained by the plaintiff amounted to a certain snm, and also that plaintiff had waived such'damages and the latter finding was inadvertently omitted from, the decision which awarded plaintiff, damages in "the sum fixed, the court has power on a motion to amend the judgment to strike out the conclusion of law that plaintiff was entitledr,to the damages found, for such finding was inconsistent with and resulted from overlooking the finding of fact as to plaintiff’s' waiver.</p> <p>In ah equitable action the costs are in the discretion of the. trial court, and when . that, court has once exercised its discretion by awarding them, it cannot after-wards amend its decision and judgment so as to withhold them.'</p> <p>-McLaughlin and Clarke, JJ./dissented.</p>

<p>"Will—legacy — when not paid within one year — interest.</p> <p>Where a will directed payment in full of each .of four legacies prior to the payment of any subsequent legacy, and the estate was insufficient to pay the last legacy in full, but four years after the death of the testatrix an expectant estate in one-third of her husband’s estate, of which she had been trustee, came into possession of her executor, who thereupon paid the balance of the last legacy, the legatee is not entitled to interest thereon under the general rule that when a legacy is given without the assignment of any time for payment, it is payable one year after the issue of letters, and if not then paid, bears interest from that date.</p>

<p>Bailment — motor vehicle — liability of keeper of garage for loss of motor car.</p> <p>Evidence in an action against the owner oía garage to .recover damages for the" loss of an automobile taken therefrom without written authority of the .owner examined and Jield to justify a verdict of the jury finding defendant guilty of lack of due care in failing to adopt proper methods to prevent chauffeurs 1 taking put motor cars without: due authority.</p> <p>Houghton and Laughlin, JJ.,. dissented, with opinion.</p>

<p>Appeal by William J. Farrell, individually and as executor and trustee, etc., from a portion of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 17th day of March, 1908, confirming the report of a referee and settling the accounts of the said executor and trustee.</p>

<p>Blaster and servant — negligence — Labor Law—.fall through shaft — unguarded openings — when statute does not apply.</p> <p>Section 20 of the Labor Law .does not require an opening or shaft in a building in process of construction to be fenced until the floor is laid, and its object is to prevent workmenusing the flooring from walking or falling into the opening.</p> <p>Plaintiff's intestate was working on a building which had been partially destroyed by fire and was in process of reconstruction. It was necessary to take up parts of the flooring to ascertain to what extent the timbers had been burned and needed replacing. An opening had been made through all the floors to the basement through which to let down damaged timbers and haul up new ones. Plaintiff’s intestate was told by a fellow-workman to go to the fourth floor to haul up a mason’s horse by a hand rope, and while doing so he fell through the opening and received injuries from which he died.</p> <p>Held, that section 20 of the Labor Law had no application to the situation proved, and that it was error to permit the jury to consider whether or not the statute had been violated as an element in determining defendant’s negligence;</p> <p>That the doctrine of a reasonably safe place in which to work- had no application, because the situation was constantly changing and necessarily being made unsafe by the progress of the work.</p>

<p>Appeal by the defendant, Christopher Cosmides, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 29th day of January, 1909,</p> <p>■ convicting the defendant of the crime of receiving stolen property, and also from an order denying the defendant’s motion for a new trial.</p>

Appeal by the plaintiff, William W. Doty, from a judgment of the Supreme Court in favor of the defendant,- entered in the office of the clerk of the county of Hew York on the 17th day of February, 1909, upon the dismissal of the complaint by direction of the court at the opening of the case on a trial at the Hew York Trial Term.

<p>Ilian—mechanic's lien—proposal to do work—construction — completion of work.</p> <p>Where a proposal was made by the plaintiff, a contractor, to do all the sheet metal work in a ferry house “consisting of ceilings, sidewalls and wainscotings ” as called for in the plans, and the defendant signed the proposal and returned it with a letter saying that he accepted the plaintiff’s estimate “to do all the interior sheet metal work,” the contract only covers the interior work, and in an action to foreclose a mechanic’s lien for such work, the complaint should not toe dismissed because the plaintiff did not do all the éxterior work as well.</p> <p>Latjghlin, J., dissented.</p>

<p>Appeal by the defendant, August Diedrick, from, a judgment of .the Municipal Court of the city of Hew York in favor of the plain-1 .tiff, rendered after a trial without a jury.</p>

<p>Appeal by the defendant, The City and County Contract Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of September, 1908, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office On the 28th day of September, 1908, denying the said defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The New York, New Haven and Hartford Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 25th day of November, 1908, upon the verdict of a jury for $18,000, rendered by direction of the court after a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the. 1st day of December, 1908, denying the defendant’s…

Appeal,by the defendants, the Warp, Twisting In Machine Company and others,, 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 Orange on the 1st. day of March* 1909, appointing a receiver and granting a temporary injunction;

Appeal by the defendant, the Laight Street Stores Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day of July, 1908, upon the verdict of a jury for $4,000, and also from an order bearing date the 36th day of June, 1908, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Debtor and creditor— collateral — conversion — necessity for tender and demand.</p> <p>Where certain stock was transferred as collateral to a loan and the creditor.'later had the stock transferred on the books to the name of a third party who was his agent and employee, and who had knowledge of the facts, there is, in the absence of fraud, no conversion until a tender of the amount of the debt by the debtor'and a demand fora surrender of the collateral has been made and refused.</p> <p>The creditor had a right to hold the stock until the loan was paid and to hold it in the name of his “ agent and servant and employee” who having notice of the situation] took no other or greater title or interest therein than his principal had.</p>

Appeal by the defendant, the India Rubber and Gutta Percha. Insulating Company, from a judgment of the Supreme Court ia favor of the plaintiff, entered in the office of the. clerk of the county of Westchester on the 29th day of February, 1908, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 14th day of February, 1908, .denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Valentine Wright, from a judgment of the County Court of Hassau county, rendered on the 26th day of December, 1908, convicting, him of the crime of grand larceny in the second degree.

Appeal by the defendant, the Ardsley Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of April, 1908, upon the verdict of a jury rendered by direction of the court, and also, from an order entered in said clerk’s office on the 6th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, The Mount Vernon Trust Company, from an order of the Supreme Court, madé at the Westchester Special Term, and entered in the office of the clerk of .the county of Westchester on the 18th day of March, 1909, vacating and setting aside an inquest théretofore taken against the defendant, opening the default of the defendant and vacating an order directing the issuance of a peremptory writ of mandamus.

<p>Railroad—negligence —judgment — conformity with pleadings — injury to passenger while alighting— charge.</p> <p>Where in an action to recover for personal injuries alleged to have been caused by defendant's negligence, the only issue tendered by the pleadings is whether the car on Which plaintiff was riding stopped and then started before .he had an opportunity to alight, it is error so to charge as to lead the jury to believe that if the car was moving only slowly, they might determine whether it constituted contributory negligence for plaintiff to attempt to alight. Hieschberg, P. J., and Rich, J., dissented.</p>

<p>Appeal by the defendants, Samuel [Jntermyer and another, 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 18th day of April, 1908, confirming the report of commissioners of appraisal in a condemnation proceeding, and from the judgment entered thereon, and also from a judgment, entered in said clerk’s office on the 26th day of October, 1907, upon the ' decision of the court rendered after a trial at the Westchester Special Term appointing commissioners of appraisal.</p>

Appeal by the plaintiff, Antonino Di Blasi, from a final judgment of the County Court of Kings' county in favor of the defendants, entered in the office of the clerk of said county on the 4th day of March, 1909, dismissing the complaint, with notice of an intention to bring up for review an interlocutory judgment-entered in said clerk’s office on the-8th day of February, 19Q9, upon the decision of the court sustaining the défendarits’ demurrer to the complaint.

Appeal by the defendant, George H. Eobinson, from' an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of March, 1908, upon the decision of the court, rendered after a trial at the Westchester Special Term, sustaining the plaintiff’s demurrer to the separate defense contained in. the amended answer. • ,

, Appeal by Harry IL. Thaw and Charles Morschauser, attorney for the relator, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of ithe county of Westchéster on the 12th day of October, 1908, dismissing a writ of habeas corpus theretofore issued upon the petition -of the relator in behalf of Harry K. Thaw, and directing that the «aid Thaw be remanded1 to the custody of the Hatteawan State Hospital for Criminal…

<p>Crime — commutation of sentence — constitutional law—ex post facto—• habeas corpus — pleading — traverse — allegations — power of Appellate Division to grant writ — power of Legislature.</p> <p>Commutation is' the power to change a greater punishment to a less, both of which are known to the law.</p> <p>Under the provision of the Constitution empowering the Governor " to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment,” he may commute a sentence of death for murder in the first degree to imprisonment for life.</p> <p>Life imprisonment is a less punishment than death, and the individual preference of a convict does not change the fact.</p> <p>A commutation of sentence does not require the acceptance of the convict to make it operative.</p> <p>Where the Governor commuted a sentence of death in a capital case to one of imprisonment for life, the latter punishment is not ex post facto, for the punishment of the crime is not alone death as prescribed by statute, but such punishment as may be meted out by the power of commutation.</p> <p>Habeas corpus is not a writ of review so that the court on a return thereto may inquire-into" the legality or the justice” of the judgment under -which therelator is imprisoned, .but it is restricted to a consideration of the jurisdiction of the court that pronounced judgment to ascertain whether the person is detained by a final judgment of a “ competent tribunal of * * * criminal jurisdiction."</p> <p>The traverse to a return in habeas corpus-proceedings so.far as “any allegation of fact” is concerned is to be-tested by the general requirements of pleading, and mere general allegations of fraud; conspiracy or wrongdoing made against the trial judge are insuflacient.</p> <p>The jurisdiction of the Supreme Court, of which the Appellate' Division is a part, in habeas corpus is beyond the power of the Legislature to disturb.</p> <p>The provision of section 3017 of the' Code of Civil Procedure that an application for á writ of habeas corpus may be made to the Appellate Division only “ where the person is detained within the judicial district within which the-term is held,” is void, as being beyond the power of the Legislature to enact.</p>

<p>Appeal by the defendant, Samuel Margolies, from a judgment of the Municipal Court of the city of Mew Tork, borough of Brooklyn, in favor of the plaintiff, rendered on the 16th day of February, 19Ó9.</p>

Appeal by the defendants, Emily I. Smith and another, copartners, from an order of the Municipal Court , of the city of New York, borough of Brooklyn, entered on the 22d day of March, 1909.

Appeal by the defendant, Buell G. Davis, as executor, etc., from a final judgment of the Supreme Court in favor of the plaintiff, éntered in the. office of the clerk of - the county of Kings on the 29th day of August, 1908, and also from an interlocutory judgment in favor of the plaintiff entered in the. office of the clerk of said county on the 13th day of July, 1908, upon the decision of the court rendered after a trial at the Kings County Special (Term.

<p>Appeal by the plaintiff, Leonardo Inglese, from a judgment of the Supreme Court in favor of the defendant; entered in the office of the clerk of tlie county of Westchester. on the 28th. day of November, 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 Westchester Trial Term, and also from an order entered in said clerk’s office on the 29th day of October, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Henry W. Rapalje 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 19th day of March, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Gevson Bieber, from a judgment of the County Court of Kings county in favor of the defendant Lewis Goldberg, entered in the office of the clerk of said county on the 22d day of May, 1908, upon the decision of the court dismissing the complaint upon the merits.

<p>Municipal corporation — Salary of draughtsman — delegated power,</p> <p>By chapter 661 of the Laws of 1907, authorizing the appointment of a board of public works for the city of Hew Rochelle, and giving the board power to appoint various. employees, among them “one draughtsman,” and further providing that the “common council shall prescribe salaries and wages under this act,” the Legislature did not delegate to the common council a continuing power'to fix salaries, but the power when once exercised was exhausted.</p> <p>The common council having by resolution fixed the salary of a draughtsman appointed pursuant to said actof .1907 at §100 per month, cannot, by subsequent resolution, increase it to §1,500 a year.</p> <p>Woodward and Gaynor, JJ., dissented.</p>

<p>Appeal by the defendant, Minnie E. Lunham, from an interlocutory judgment of the Supreme Court in' favor of the plaintiff, entered in the office of the clerk of the county of Westchéster on the' 15t.h day of January, 1908, upon the decision of the court rendered after a trial at the Westchester Special Term, the jury having theretofore rendered a verdict in favor of the plaintiff after a trial at the Westchester Trial Term upon issues Lamed ; also from an order entered in - said clerk’s office on the 6th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes, and also from a final judgment entered in said clerk’s office on the 18th day of April, 1908, pursuant to said interlocutory judgment.</p>

Appeal by tbe defendant, J. Esler Eckerson, from a judgment of the Supreme Court in favor of. tbe plaintiff, rendered on the-27th day of December, 1907, upon the verdict of á jury, rendered after a trial at the Dutchess County Trial Term, convicting the defendant of the crime of creating a public nuisance.'

Appeal by the defendant, Paul M. Abrahams, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the loth day of December, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 6th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Nathan'Vichos, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 15th day of December, 1908.

Appeal by the plaintiff, Harold D. Watson, from an interlocutory judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, sustaining defendant’s demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Appeal by the plaintiff, Ray A. Dardonville, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau oh the 10th day of December,. 1908, upon the decision of the court dismissing the complaint after the opening of the case on trial at the Nassau Special Term. • '

Appeal by the relator, William Kennedy, 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 17th day of July, 1908, confirming an- assessment upon the relator’s personal estate, and dismissing a writ of certiorari to review such assessment.

Motion by the respondent, Theodore A. Bingham, as police commissioner of the city of Hew York to cancel his return to a writ of certiorari and to permit him to file an'amended return, and for a realignment. (See 125 App. Div. 909)’.

Appeal by the plaintiff, Joseph Bookman, 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 15th day of December, 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 Kings County Trial Terfn.

Appeal by the plaintiff, the United Realty and Mortgage Company, from a final order of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant in summary proceedings dismissing the petition.

Appeal by the plaintiff, Guy Loomis, 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 November, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 7th day of November, 1907, denying the plaintiff’s motion for a new trial made…

<p>Appeal by the defendant, the Realty Associates, 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 22d day of December, 1908.</p>

<p>Railroad — negligence — improbable testimony — nonsuit.</p> <p>Where in an action by a passenger for injuries caused by the negligence of the railroad company, on whose car he was, the plaintiff’s story, although improbable, is not incredible as. a matter of law, it is error.to grant a nonsuit at the close of his case.</p>

Appeal by the defendant, the Richmond lee Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 15th day. of January, 1909, upon the verdict of a jury for $1,250, and also from an order entered in.said clerk’s office on tbe same-day, deny-' ing the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the First National .Bank of Amenia,' from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 23d day of June, 1908, upon the verdict of a jury for $512, and also from an order entered in said clerk’s office on the 9tli day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Evidence—witness — denial of signature.</p> <p>Evidence in a suit by a woman seventy-three years old and unable to read , or write to have a deed, purporting to have been signed by making a cross, declared a forgery,, examined, and held, to show that her denial of her signature was due to failing memory and to require a reversal of a judgment in her favor. /</p>

<p>Appeal by the defendants, Frank Camoroto and .others,, from a judgment of the County Court of Kings county, rendered on the 4th day of June, 1908, convicting the defendants of the crime of assault in the second degree, and also from an order entered in the office of the clerk of the county of Kings on the 5th day of June, 1908, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>New York city — schools — senior teacher in charge of a school— appointment — salary.</p> <p>The position of “ senior teacher in charge of a school ” in New York city is that of a regular teacher who is performing special duties by direction of the principal of the school.</p> <p>Under the by-laws of the board of education of the city of New York providing that in schools of less than five classes extra compensation shall be paid to the teacher of the highest grade for acting as senior teacher in charge of his school, a teacher holding a certificate of the highest grade who was appointed by the principal of his school to the knowledge of the district superintendent to act in such capacity can recover the additional compensation, although he was not appointed td the position either by the school board or later by the board of education.</p> <p>Whether or not the acceptance of his regular salary by one who acted as- senior teacher in charge of the school estops him from claiming the extra compensation is a question for the jury, and a dismissal of the complaint at the close of the plaintiS’s case is reversible error,</p>

<p>Will — construction — time of execution.</p> <p>If giving words in a will their primary signification will render the instrument meaningless or absurd, such signification will not be adopted.</p> <p>Where a testatrix left all her property, real and personal, to her four children, share and share alike, with a provision that if any of them should die leaving no descendants “before the execution of this my last will and testament,” then the property should be divided among her then surviving children, the clause “ the execution of this my last will ” under the circumstances disclosed, will be construed to mean the time when the estate was distributed and not the time either of signing the will or of the testatrix’s death.</p> <p>So the administrator of a child of the testatrix, who died before an application for the judicial settlement of the executor’s accounts, is not entitled to share in the distribution of the estate.</p>

Appeal by the defendant, the Coney Island and Brooklyn Bail-road Company, from a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, rendered on the 24th day of November, 1908.

Appeal by the defendant, Herman L. Flam, individually, etc., from a judgment of the Municipal .Court of the city of New York,- in favor of the plaintiff, .rendered on the 26th day of- January, 1909.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Kings on the 5th day of March, 1908, upon the.verdict of a jury for $500, and also from an order entered in said clerk’s office on the 2d. day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Willie Alpern, from a judgment of the County. Court of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 21st day of March, 1908, upon the dismissal of the complaint upon the merits by direction after a trial at a Trial Term of said County Court.

<p>Corporation — voluntary dissolution — practice — issuance of receiver’s certificates — priority over mortgage.</p> <p>Proceedings for the voluntary dissolution of a corporation are purely statutory, and non-compliance with the express requirements of the statute in connection with the institution and maintenance of such proceedings is jurisdictional.</p> <p>Where no notice of a presentation of the petition and schedules, nor of the application for an order to show cause why a corporation should not be dissolved, nor any copy of the motion papers nor of the proposed order was served on the Attorney-General, the order to show cause and all proceedings under it are void.</p> <p>An order appointing a temporary receiver, made after the presentation of the petition, and on proper notice to the Attorney-General is valid, for it is not necessary that it should he preceded by a valid order to show cause why the corporation should not be dissolved.</p> <p>The appointment of the temporary receiver being valid, the court had jurisdiction to regulate and control his action.</p> <p>Where the court, upon notice to a mortgagee of the property, made an order, from which no appeal was taken, directing the temporary receiver to issue his certificates to a certain amount and providing that they should be a lien upon the property prior to the lien of the mortgage, .and later upon the appointment of a receiver in an action to foreclose, the court ordered him to issue and sell certain certificates which should be a lien on the property [prior to the lien of the mortgage, so much of the order as directs that the proceeds of the sale be applied to the redemption of the certificates already issued by the temporary receiver, will be upheld, for it is res adjudicate as to the-mortgagee.</p> <p>Any unsecured claims, which accrued prior to the appointment of the receiver appointed in the foreclosure .action, cannot be paid out of the proceeds of the sale of the certificates issued by the temporary'.receiver, in the absence of the consent of the bondholders, and so far as the order directed this to be done it will be reversed.</p> <p>In the absence of special equities, the claims agaiL.fi; each receiver should be paid out of the property in his hands, and this is so although the same person was receiver in both proceedings.</p> <p>The issuing of receivers’ certificates in railroad and other quasi-public receiver-ships, the amount thus raised to have priority over other liens against the property, should he directed only after notice to lienholders and a full hearing and investigation on the merits.</p> <p>Where the order directing the issuance of certificates by the receiver in the foreclosure action was made before the temporary receiver in dissolution proceedings had accounted, and a request for investigation and examination was denied, the order will he reversed, except in so far as it directs the sale of certificates to pay the certificates issued by the temporary receiver.'</p>

Appeal by the petitioner, Bobert Bering, from an order of the Supreme Court, made at the Kings Comity Special Term and entered in the office of the clerk of the county of Kings on the 10th day of February, 1909, dismissing a writ of certiorari.

<p>Appeal by the Knickerbocker Trust Company, as trustee, 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 15th. day of January, 1909, confirming the report of a referee.</p>

Appeal by the defendant, The Brooklyn Daily Eagle, 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 16th day of April, 1909, denying .the defendant’s motion for á special jury.

Appeal by the defendant, the Central Trust Company of Hew York, 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 18th day of January, 1909, upon the decision of the court rendered after a trial at the Orange Special Term.

Appeal by the defendant, the Consolidated Fireworks Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 8th day of May, 1908, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 18th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Martha.J. Marsh 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 Westchester on the 1st day of July, 1908, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the petitioner, Frank B. Walker, from so much of 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 16th day of January, 1909, as directs the payment' to the respondents of certain awards made for lands taken by the city of ■ New York.

Appeal by Charles H. Gaus, Comptroller'of the State of New-York, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the. 23d- day. of February, 1909, reversing an order entered in said Surrogate’s Court on the 6th day of October, 1908, fixing a transfer tax herein.

■. Appeal by the defendant, Westinghouse, Church, Kerr & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 12th day of May, 1908, upon'the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 14th day of May, 1908, denying the defendant’s motion to set aside, thewerdict and to dismiss the complaint upon the merits. .

Appeal by the defendants, Harold Gf. Villard. 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 Orange on the 23d day ■of September, 1908, upon the decision of the court rendered after .a trial at the Dutchess County Special Term.

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 30tli day of October, 1908, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Stephen W. Devoe, from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of January, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to certain affirmative defenses contained in the said defendants’ amended answer.</p>

Appeal by the defendants, Edmund P. Platt 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 Dutchess on the 28th day of December, 1908, upon the decision of the court, rendered after a trial before the court with out a jury at the' Dutchess County Trial Term, opening settled accounts between the parties and appointing a referee to take an account.

Appeal by the plaintiff, Richard Kelly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the. 4th day of ¡¡November, 1908, upon the decision of the court,- rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits in a suit to restrain the defendants from closing a part. of a street.

Appeals by the-respective defendants from sepárate orders 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 14th day of April, 1909, granting the, plaintiff’s motion for leave to: serve' a supplemental complaint. • !

Appeal by Charles S. Gerstenberg, as administrator, etc., from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of July, 1908, surcharging the account of the administrator.

Appeal by the defendant, Clark D. Bhinehart, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the- clerk of the county, of Queens on the 23d day of February, 1909.

Bhineliart, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of February, 1909. The case is reported in 133 Appellate Division, 373.

<p>Appeal by the plaintiff, George Y. Morton, from an interlocutory judgment of the County Court of Queens county in favor of the defendant, entered in the office of the clerk of said county on the 24th day of December, 1908, upon the decision of the court sustaining the defendant’s demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.</p>

Appeal by the plaintiff, the Bockland-Bockport Lime Company, 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 31st day of August, 1908, upon the decision of the court, rendered after a tidal at the Kings County Special Term, dismissing the complaint upon the merits. Suit by the vendee for the specific performance of a contract of sale of real estate.

■Appeal by the defendants, Harry N. Jackson and others, from a judgment of the County Court of Suffolk. county in favor of the plaintiff, entered in the office of the clerk of said county on the 25th day of August, 1908, pursuant to an order of- said County Court bearing date the 15th day .of August, 1908, and entered in said clerk’s office,, affirming a judgment of tlié Justice’s Court of the town of Islip, and also from the said order. upon which the judgment appealed from…

<p>Appeal by the defendant, The City of Mount Vernon, 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 20th day of October, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 23d day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes in an action to recover damages for personal injuries sustained by falling upon accumulated snow and ice on a public sidewalk.</p>

<p>Landlord and tenant — pleading — injunction — insufficient allegations — lease construed — special damages — relief, not asked.</p> <p>On demurrer the terms of a lease annexed to and forming part of a complaint control over the general allegations and conclusions qualifying its provisions.</p> <p>Where in a suit to enjoin a landlord from cutting off electric power on leased premises and from instituting summary proceedings and to recover money paid under protest for extra power, the lease recites that it is “to include the furnishing of twenty-five (25) horse power, based on the rated capacity of the motors," all power in excess thereof to be paid for at specified rates, and it is . admitted that the motors used exceeded twenty-five horse power, an allegation that plaintiff has not used at any time more than the twenty-five horse power stipulated in the lease does not establish a breach of contract by the landlord in charging for excess power since the amount to be furnished was based on the rated capacity of the motors.</p> <p>Allegations in the complaint in such suit that the landlord demanded. payment for additional power, threatened to shut off the power if not paid, and instituted summary proceedings, and that thé plaintiff because he was then engaged in a contract for the quick delivery of some' inks and because the cutting off of the power would have prevented his performance, paid the excess charge under protest, and that the defendant has since charged the advanced rates and threatens, unless they are paid, to shut off the power and institute summary proceedings, are insufficient to justify injunctive relief and a demurrer to the complaint will be sustained.</p> <p>Allegations that threatened injury will be irreparable and that no adequate remedy therefor exists at law are mere conclusions and of no legal effect unless facts to support them are pleaded.</p> <p>Plaintiff shows, no right to an injunction restraining the threatened summary proceedings by alleging facts tending to show a legal defense thereto.</p> <p>The payments for extra .power having been made voluntarily and'with full knowledge of the facts cannot be recovered back even if the defendant had no right to compel their payment.</p> <p>Plaintiff cannot recover special damages for a breach of the contract to furnish power, since he does not allege special facts removing the case from the gen- ■ eral rule that the measure of damages in such a case is the difference between the rental value of the premises with the power contracted for, and" their rental value with the power furnished.</p> <p>The complaint in such action cannot bq upheld on the ground that it is sufficient . to sustain an action for specific performance where that relief is not asked.</p>

Appeal ■ by the defendant, the Long Island Railroad Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, rendered on October 1, 1908, in an action for personal injury.

Appeal, by the plaintiff, Henry W. Watts, from a judgment of ' the Municipal Court of the city of New York, rendered on January ■ 11,' 1909, in favor of the defendant, dismissing the complaint, and ■ ■ also from an order denying the plaintiff’s motion to vacate and set aside said judgment and for a new trial.

<p>Appeal by the defendant, the Richmond'Light and 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 Richmond on the 7 th day of January,.1909, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Alfred Post, 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 25 th day of April, 1908, upon the verdict of a jury dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 21st day of May, 1908, denying the plaintiff’s motion for a new trial made upon the minutes, in an action brought to recover damages to a building owned by the plaintiff, in consequence of the alleged wrongful and negligent acts of the defendant.</p>

Appeal by Julia Downey and others from a portion of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 27th day of August, 1908, admitting to probate the last will and testament of Julia Downey Delaney, deceased, and also from an order entered in said Surrogate’s Court on the 1st day of September, 1908, amending the said decree,

<p>Appeal by the defendant, The Texas 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 13th day of January, 1909, Upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 18th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes. ‘ -</p>

Appeal by the plaintiff, Lewis J. Jacobs, from a judgment of the Municipal Court of the city of New York in favor of the defendants, rendered on the 1.8th day of November, 1908, in an action brought to foreclose a lien upon chattels under the provisions of article 4 of the Municipal Court Act.

<p>Court— appeal — Municipal Court — exceptions — services rendered to defendant’s mother.</p> <p>No exceptions are necessary to give the Appellate Division jurisdiction to review errors of law committed upon the trial of an action in the Municipal Court. Where a plaintiff sues for board, for nursing defendant’s mother, for property damaged and destroyed in her use and for the value of personal property furnished at defendant’s request, it is reversible error to refuse to allow him to show the value of the services and the property destroyed.</p>

• Appeal by the plaintiff, Benjamin F. Webb, 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 24th day of February, 1909.

<p>Reargument of appeal by the plaintiff, Thomas 0. Watkins, from a judgment, of the Special Term for Trials, entered in the office of the clerk of the " county of Kings on the 17tli day of April, 1908, dismissing the complaint' upon the merits.</p>

<p>Appeal by Raphael Krasnow from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 7th day of April, 1908.</p>

<p>’ ■ Appeal by the defendants, Solomon Frank 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 11th day of January, 1909, upon the decision of the court rendered after a trial at' the Kings County Special Term.</p>

<p>Trial — negligence — injury while alighting from street car — charge.</p> <p>It is not error to charge that a plaintiff who was injured while alighting from a street car is entitled to recover if the car. having stopped on her signal, started up again while she was endeavoring to alight, even though it he not stated that the car must have been negligently started if the only issue involved is as to whether the car having stopped to let her off started up while she was alighting. -</p> <p>Jenics and Miller, JJ., dissented.</p>

<p>Appeal by the defendant, the White Sewing Machine Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered-' in the office of the clerk of the county of Madison on the 4th day of January, 1909, upon the report of a referee.</p> <p>Upon the 23d day of February, 1905, an agreement was entered into between the defendant and F. C. Drake & Son, living at Oneida, for the agency by the said Drake & Son of the automobile manufactured by the defendant. Through correspondence between the defendant and Mr. F. C. Drake, this plaintiff, Mr. Drake was required to purchase of the defendant three cars. Upon these three cars he was required to make a deposit of $250 each. He subsequently made this deposit of $750, but received one car only. The failure to receive the other two cars was entirely due to the plaintiff, by reason of his refusal to give directions for shipment, for which he was asked a number of times. The contract of agency ¡provided that the agreement was to take effect from and after its acceptance by the defendant, and to continue until September, 1905, or until dissolved by mutual consent. The contract further provided, “ but it may be dissolved by either party giving notice, and in case of violation of this contract by said second party, the first party may cancel it without notice.” Upon August seventeenth the defendant wrote to F. C. Drake & Son as follows : “ We hereby notify you of the cancellation of our agency contract from this date. If you are in a position to assure us of a considerably larger volume of business for the coming season we shall be pleased to take up with you the matter of a new agency contract.” That letter was received by the son, but was not called to the attention of F. O. Drake, this plaintiff, until October eleventh, at which time F. 0. Drake &■ Son received from the defendant the following letter : “ On August 17th we notified you of the cancellation of our agency contract^ but have received no acknowledgment of the same. We still have your two unfilled orders for Model £E’ cars on file together with your deposit of $500.00, and wish to now notify you that unless order is received from you by return mail for immediate shipment of the two cars we shall charge your account with the 20% discount allowed on the.first car and consider the matter closed. We cannot furnish you our Model ‘ F ’ cars in place of the Model £ E’s ’ ordered by yon as we have concluded other agency arrangements for their sale in your territory; nor can we continue to bill you repair parts at agent’s discount.” The plaintiffs have recovered the $500 advanced upon the two cars not taken.</p>

Appeal by the plaintiff, Germano P. Baccelli, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 18th day of February, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Ulster Trial Term,

<p>Appeal by the defendants, Albert J. Wing 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 Albany on the 18th day of December, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the lltli day of January, 1909, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Intoxicating liquors — illegal sale — intent — sale after destruction of hotel.</p> <p>It is no defense to-a prosecution for selling liquor contrary to the statute that the defendant whose hotel had burned was advised that he was thereafter entitled to sell liquor in an adjoining building. A criminal intent-is immaterial as the oflense is malum prohibitum. ■</p> <p>A defendant who is licensed to sell liquor only “in connection with the business of keeping a hotel ” is properly convicted of a violation of the statute where he continues to sell liquor in an adjoining café after his hotel is destroyed .by fire.</p>

<p>Practice — appeal from Justice’s Court ^-return—pleading served after • judgment.</p> <p>The plaintiff in an action in a Justice’s Court is not entitled to have an amended complaint, which was served after judgment rendered, returned by the justice among the papers on appeal, except upon express stipulation of parties. Kellogg, J., dissented.</p>

Appeal by the plaintiff, Ernest K. Thomas, from a judgment of the Supreme Court in favor of tire defendants, entered in the office of the clerk of the county of Warren on the lltli day of April, 1908, upon the report of a referee.

<p>Evidence — negligence — specific instances of care prior to accident causing death — burden to show care — proof of speed of locomotive.</p> <p>An administrator seeking to show that a decedent who was killed while crossing a railroad track used care at the time of the accident is not entitled to give evidence of specific instances of care on the part of the decedent prior to the accident.</p> <p>Where there are no eye-witnesses to an accident causing death, the rule requiring the representative of the decedent to show freedom from contributory negligence is mucli relaxed: but the burden of showing care has not been abrogated, and it is still essential that the care required to be proven be .shown by competent and material evidence. Incompetent evidence does not become admissible because of the necessity which confronts the plaintiff.</p> <p>In an action to recover for the death of one who was killed while crossing a railroad, witnesses living in a house half a mile from the place of the accident are not competent to testify that the engine which caused the accident was running a mile a minute when they did not see it, but judged of its speed solely by the sound, especially when there is no proof that the witnesses ever made any test to determine the actual speed of a locomotive.</p>

<p>Appeal by the defendant, the Cortland Carriage Goods Company, 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 26th day of September, 1908, upon the verdict of a jury for $1,500.</p> <p>The action is for personal injuries received by the plaintiff while using a freight elevator in the defendant’s factory where he was employed. He arid another employee entered the elevator on the first or shipping room floor and started it up to go to the second floor. It was noticed that the' cable was getting loose and the plaintiff stopped the elevator. Just as it stopped it gave a sudden jerk upwards, a crash was heard overhead and the plaintiff jumped out and struck on the shipping room floor two or ■three feet below. As he jumped a heavy door that was made to operate automatically by coining in contact with an inverted V-shaped device on top of the elevator, and which was one of a pair of doors which closed the well of the elevator, fell and struck him, causing the injuries of which he- complains. The elevator had a counterweight to balance its weight, consisting of several iron blocks three by six inches and about twelve inches long, fastened together with iron rod's with the top and bottom blocks fourteen inches long, and constructed with guide shoes upon them to run in guideways made of strips of hardwood secured to guide posts about fourteen inches apart. Those guideways extended from the top to the bottom of the building, which consisted of three floors. The guideways in which the counterweight ran' were covered on the first and second floors, but were not covered on the third floor, so that the counterweight on that floor was open to the room and unprotected. In the operation of the elevator the bottom of the counterweight did not come as high as the third'floor when the elevator was down to its lowest point and the weight was at its highest point. The several pieces of iron of which the counterweight was composed were rough and varied slightly in thickness. The accident was caused by a coemployee, who wheeled a barrel of castings and. set it down near the open guideway on the third floor, so.near that one of the hoops around the bulge of the barrel caught under the protruding surface of one of the pieces of iron of the counterweight in the guideway and held the weight there for a moment until the hoop splintered and let the counterweight fall with great force, with the resulting effect of suddenly jerking the elevator upwards against the automatic doors over it at the second floor in the elevator well with such force of impact as to dislocate the doors from their runners so that they fell, and one of them struck the plaintiff after he had jumped.</p>

<p>Executors and administrators — claim for board furnished to mother — facts not justifying recovery — parent and child — presumption.</p> <p>A son cannot recover against the estate of his mother for board and services rendered by mere proof that the mother made payments to him from time to time and also paid for certain materials for use in the house.</p> <p>Support and care furnished by a son to his mother are, in the absence of an agreement to pay therefor, presumed to be gratuitous.</p> <p>Such claims are scrutinized with great care and only admitted after clear and convincing testimony.</p> <p>Sewell, J.,. dissented.</p>

Appeal by the plaintiff, Bertram. Her maud, from a'judgment of the County Court of Washington county in favor óf the defendant^ entered in the office of the clerk of said county on the 8th day of February, 1909, upon the dismissal of the complaint by direction of the court at the. close of the1 plaintiff’s case on ¡.a trial at a Trial Term of said County Court. ■

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 3d day of July, 1908, upon the dismissal of the complaint by-direction of the court after a trial at the Albany Trial'Term.

<p>Appeal by the defendant, Jacob Banin, from a judgment of the County Court of Schenectady county, entered in the officé of the clerk of said county on the 23d day-of December, 1908, affirming a judgment of conviction rendered against the defendant by the Police Court of the city of Schenectady.</p>

<p>Appeal by the plaintiff, Rosanna Palin, as administratrix,' etc., from adjudgment of the Supreme Court in favor of the defendant, entered in the "office of the clerk of the county of Albany on the 12th day of January, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case-on a trial at. the Albany Trial Term"</p>

Appeal by the plaintiffs, Joseph S. House and another, as trustees, etc., from that part of 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 13th day of April, 1909, confirming a referee’s report herein, which denies an allowance to the plaintiffs’ attorneys.

<p>Mortgage — facts- not showing waiver of default.</p> <p>Suit to foreclose a trust mortgage. Evidence examined, and held, that a bondholder owning overdue coupons had not waived his right to declare the mortgage due. _</p> <p>Cochrane, J., dissented.</p>

<p>Appeal by the plaintiff, Harley H. Baker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 20th day of November, 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 Clinton Trial Term.</p> <p>The action was to recover upon an insurance policy for the loss of the plaintiff’s house, bam and certain personal property. The defense was that the plaintiff was not the owner of the property, and that this standard policy provided that it should be void if the interest of the insured be any other than an unconditional and sole ownership. The real property belonged to Joseph Baker, the father of the plaintiff, and in 1900, in the presence of the plaintiff and his two sisters and a reputable attorney he delivered to the plaintiff a deed of the property in question, and a like deed to each sister of certain other property, and directed that the deeds be not recorded during his lifetime. As a part of the same transaction all of the property covered by the deeds was mortgaged to one' Knapp to pay certain indebtedness of the grantor. Each deed pro-, vided that they were delivered simultaneously, and the lands were-all bound alike by the mortgage. It was stated at the time that there was a mortgage against the plaintiff, and the grantor directed that none of the deeds should be recorded during his lifetime, He made and delivered a bill of sale of his personal property to the plaintiff and the two sisters at the same time. Each deed reserved to the grantor the use of the property during his lifetime. About a year after Joseph Baker deeded the property which he had formerly conveyed to the plaintiff and to his daughter Frankie in trust to her, which deed was thereupon promptly recorded. The terms of the trust do not appear. Plaintiff did not know of the conveyance until after its record. ■ The plaintiff transferred to his two sisters his interest in the personal property covered by the bill of sale from the father. Frankie leased the farm which had previously been deeded to the plaintiff, for a term, with his knowledge and consent but in her name. The Knapp mortgage had been paid before the fire. The plaintiff, upon getting married, entered into possession of the property and was occupying the same at the time of the lire. The plaintiff’s two sisters gave a bill -of sale of the interest in the personal property which they derived from the plaintiff to his wife. The court nonsuited the plaintiff upon the theory that he was not the owner of the real or personal property.</p>

<p>Appeal by the plaintiff, Thomas Maloney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 31st day of October, 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 Warren Trial Term.</p>

<p>Tax—assessment in city of Rochester—certiorari—Statute of Limitations.</p> <p>The provisions of the Tax taw requiring an assessment roll to he filed in the office of a city clerk for fifteen days for public inspection, and requiring the’ posting and publication of notice thereof, do not apply to the city of Rochester, for its charter, enacted subsequent to the Tax Law, contains a complete system of procedure relative to the assessment and collection of taxes inconsistent with that embodied in the general act.</p> <p>Under the charter of the city of Rochester an assessment becomes final and binding at the time of the confirmation of the tax rolls by the common council of. the city, and the Statute of Limitations upon certiorari to review such assessment begins to run from that date.</p>

Appeal by the plaintiff, Jesse Stiles, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 4-th day of November, 1908, upon the decision of the court, rendered' after a trial at the Saratoga Special Term, dismissing the complaint upon the merits:

<p>Municipal corporation — fees for hunting licenses in city of second class — clerk not entitled thereto.</p> <p>The city clerk of the city of Schenectady (a city of the second class) is not entitled to retain for. his own use the fees received by him for issuing hunting licenses under section 1U4 of the Forest, Fish and Game Law, but will be required by mandamus to pay them over to the city treasurer.</p>

<p>Appeal by the plaintiff, Julia Boylan, from an order of the Supreme Court, made at the Broome Special Term and entered in the. office of the clerk of the county of Madison on the 25th day of August, 1908, denying the plaintiff’s motion for final judgment.</p>

<p>Appeal — resettlement of ease — omission of rulings.</p> <p>While a. trial judge in resettling a case may act upon his own recollection, a defendant is entitled to have a ruling' on his objection inserted in the case where the judge on resettlement struck it out merely Because it failed to appear in the stenographer’s minutes,, if the defendant’s affidavits • stating that the ruling was made are not contradicted, and there is no proof that the stenographer’s minutes were correct and the judge did not act upon his own recollection.</p>

<p>Pleading, — landlord and tenant — action for rent — allegations not conclusions of law.</p> <p>It is-a good defense to an action, for rent: under &■ lease providing" that"the tenant could cancel the lease “if a, racing bill ispasse&soas to change the present condition.of racing at Saratoga, Springs ” to allege that the defendant canceled the lease because “ a racing bill was passed so as to change the said condition of racing-at Saratoga Springs.” Such allegation is not a conclusion of law, but one of fact.</p>

<p>Will — facts showing due publication.</p> <p>Proceeding for the probate of a will. Evidence examined, and held, to show a substantial compliance with the statute governing execution, and that the testatrix, by words and acts, had properly published the instrument as her last will and testament.</p> <p>JNo particular form of words is necessary to effect the due publication of a will; it is sufficient if the testatrix communicates to the witnesses, by words or acts, the fact that the instrument is her will.</p>

<p>Appeal by the plaintiff, the Trombley & Carrier Company, from a judgment of the Supreme Chart in favor of the defendant,, entered in the; office of the clerk of the county of Franklin on the 19th day of November, 1908, upon the dismissal of the complaint by direction of the; court after a trial at the Franklin Trial Term, and also from an order entered in said clerk’s office on the 13th day of November, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The complaint alleged a sale to the defendant of lumber and material that was used in the erection of a cottage upon the lands of the defendant at Lake Placid, and that the. defendant agreed to pay for the same. The answer denied these allegations and alleged that at the times mentioned in the complaint one Joseph B. Williams was engaged in the construction of a cottage, for the defendant under a contract with him ; that by the terms of the contract Williams was to furnish all of the necessary material, and that the material in question was furnished by the plaintiff upon the order and credit of Williams. The defendant .further alleged that the, contract was to answer for the default or miscarriage of Williams and was, therefore, void'under the Statute of Frauds. (See Laws of 1897, chap. 417, § 21.)</p> <p>The court held as a legal conclusion from the evidence in the case that the defendant was not a purchaser of the property ; that his promise was within the Statute of Frauds, and dismissed the complaint.</p>

. Appeal by the plaintiffs, the Title Guarantee and Trust Company and others, as executors, etc., 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 28th day of March, 1908, upon the decision of the court rendered after a trial at the' New York Special Term. *

<p>. Appeal by the plaintiffs, the Title Guarantee and Trust Company and others, as executors, etc., 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 28th day of March, 1908, upon the decision of the court rendered after a trial at the' New York Special Term. *</p>

<p>AppLroATroN of the district attorney of -the county o>f' New York to d'isbar the respondent, an attorney and eounseler of this court.</p>

Certiorari issued out of the Supreme Court and attested on the 18th day of June, 1909, directed to William R. Willcox and others, commissioners, constituting the Public Service Commission of the State of New York of the first district, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the application of the relator for the permission and approval of the respondents to the…

Appeal by the defendant, David Kramer,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the cleric of the county of Hew York on the 21st. day of January, 1.909, upon the verdict of a. jury for $3,.000,. and also from an order entered in said clerk’s office on the 2d day of February, 1909', denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, David Kramer,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the cleric of the county of Hew York on the 21st. day of January, 1.909, upon the verdict of a. jury for $3,.000,. and also from an order entered in said clerk’s office on the 2d day of February, 1909', denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Conversion — stablekeéper not bailee of property stored on his premises without notice — demand — negligence.</p> <p>The plaintiff delivered merchandise to a public truckman for transportation. The truckman did not deliver the goods, but. kept them on his truck, drove the same into defendant’s stable and left it for the night. The defendant’s employees unhitched the horses and backed the truck among others which the defendant received on storage. It appeared, further, that the trackman’s drivers unknown to him often sent the trucks by assistants or strangers to the' defendant’s stable at night, and left them there with merchandise upon them, and that the trucks were often called for by strangers in the morning. On the following, day a stranger called for the truck bearing the plaintiff’s merchandise and after describing it and the. horse was allowed to drive the truck away. Thereafter he converted the merchandise.</p> <p>Held, that as the defendant had not received the merchandise for storage for the plaintiff and had no notice that it was upon his premises, he was not a bailee so as to be liable for the conversion.</p> <p>To establish a conversion under such circumstances, a demand is necessary, and as the property was not in the defendant’s possession when the demand was made, there was no conversion.</p> <p>As the defendant owed no duty to protect such property, he cannot be held for negligence in delivering the truck to the wrong person, for negligence must be based upon a duty negligently performed.</p> <p>Clause and McLaughlin, JJ., dissented, with opinion.</p>

App-eae by tire plaintiff, Kate B. Barnes, from an order of the Supreme Court, made at the Kew York Special' Term and entered in the office- of tire- clerk of the county of Kew- York on the 4th day June, 1909, directing the plaintiff to furnish a bill of particulars.

<p>Appeal by the defendants, Abraham Ruth and another, from an order of the Supreme Court, made at the ISTew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of May, 1909, denying the said defendants’ motion for judgment upon the pleadings.</p>

<p>Appeal by the defendant, the Hew York Hippodromé, from ari > order of the Appellate Term of the Suprerrie Court, entered'.in -the": 'office of the clerk of the county of Hew York "on the 16th dáy :o£ ■> December, 1908, reversing a judgment of the City Court of the city of Hew York in favor of the defendant, entered in the office of the clerk of said City Court on the 3d day of July, 1908, upon the decision rendered by the court without a jury upon an agreed statement of facts, and also (as stated in the notice of appeal) from a-judgment entered in said city clerk’s office on the 24th day of December, 1908, pursuant to said order of the Appellate Term.</p>

Appeal by the defendant, Albert D. Oppenheim, 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 23d day of January, 1909, upon the decision of the court rendered after a trial at the Hew York Trial Term, a jury having been waived.

<p>Judgment-^- practice—vacating judgment by default— discretion of court not unlimited..</p> <p>Where after a case on the day calendar has been called and marked ready by the’ plaintiff and has been passed several times because of the plaintiff’s failure to procure counsel to try the case, and the plaintiff, when notified by his attorney that the case would soon be ready and that he should attend at court, .refused to do só, stating that he would prefer to have the case dismissed and reopened, it is an abuse of discretion to excuse the default and vacate a judgment thereon entered.</p> <p>The court has not unlimited discretion to excuse defaults, but should only do so when taken by mistake, inadvertence, surprise or excusable neglect, as provided by section 724 of the Code of Civil Procedure.</p>

<p>Beal property—action to determine claim to lands—allegations complying with statute—extinguishment of easement by abandonment — complaint stating cause of action.</p> <p>The complaint in a statutory action to determine a claim to real property sufficiently states, the plaintiffs’ title-and possession for a. year prior to the action • and that the defendant unjustly claims an interest or easement therein, where it alleges that the plaintiffs acquired a title in fee simple by purchase, that the premises have been in their possession for the year next preceding the. commencement- of the action, and sets forth the facts upon which the defendants base a claim to an easement over a former carriageway. Whether the defendants’ claim be just or no is a question to .be determined in the action.</p> <p>A judgment in a prior action enjoining the defendants from using an easement over a carriageway for any other purpose than.as a passage to and from .private stables in the rear, is not res adjudieatd so as- to bar the same plaintiffs from maintaining a subsequent action to have the easement declared abandoned, where the question of-abandonment was not raised in the prior action and the facts underlying,the second acfi'on did not then exist.</p> <p>An easement created by deed is not extinguished by mere nonuser; but a cesser ' . to use under circumstances showing an intention to abandon the easement— no matter for how short a time—"works a destruction of the right.</p> <p>Suit to-have an easement declared abandoned. Complaint examined, and held, to state facts showing , not only that the legitimate use of the easement had been rendered impossible by the erection of an apartment house, but also that the easement had been abandoned, so that a demurrer to the-complaint was properly overruled. ■ . /</p> <p>Ingraham and Laughlin, Jj.,-dissented, with opinion.</p>

Appeal by the plaintiff, Rosalynde A. de Lima Mayer, 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 August, 1906, confirming the report of a referee and directing the distribution of surplus moneys.

<p>Principal and agent — transmission of money to foreign countries — chapter 185 of Laws of 1907 constitutional — plaintiff must sue surety in equity on behalf of himself and others.</p> <p>Chapter 185 of the Laws of 1907, requiring persons engaged in selling tickets for transportation to' or from foreign countries, who, in conjunction therewith, carry on the business of transmitting money to foreign countries, to file a bond to the People of the State conditioned for the faithful holding and transmission of said money, is constitutional.</p> <p>The fund represented by such bond is not for the benefit of one person who has deposited money for transmission to a foreign country but is for the benefit of all such persons. And hence, where the principal having converted moneys received for transmission, has been declared bankrupt and absconded, a creditor must sue the surety in equity on behalf of himself and all creditors similarly situated. He cannot'maintain an action at law for his sole benefit.</p>

<p>' Crime — attempt to commit larceny — facts justifying conviction.</p> <p>Appeal from a judgment convicting defendant of'an attempt to commit the crime of grand larceny, second degree, hy changing the address on an express package so that it was delivered to him. Evidence examined, and held, that the judgment should he affirmed.</p>

<p>Landlord and tenant—assignee of lease cannot question assignor’s title — instrument conveying only rights of assignor — covenant to hold assignor harmless.</p> <p>One who accepted the assignment of an oral lease for one year at a time when the assignor had established the lease in summary proceedings to dispossess him, and has remained in possession for the balance of the term, is estopped from questioning his assignor’s title. He cannot recover the consideration for the assignment, although the lease was declared to be invalid on a new trial of the summary proceeding.</p> <p>Moreover, there can be no recovery of the consideration for the assignment when the same recited the order establishing the oral lease and provided that the assignment was without recourse as.against the assignor whether said final order were reversed Or otherwise, for the legal effect of such assignment was merely to transfer to the assignee the right, title and interest of the assignor.</p> <p>Where the assignee merely held the lease as agent for other parties who paid the rent to the owner, they cannot question the legality of the assignment, especially where they covenanted to save the assignor harmless from any liability by reason of the assignment.</p>

Appeal by the defendant, Kiel & Arthe 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 14th day of December, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Will — power of sale after expiration of lease — power of sale immediate when no lease exists.</p> <p>Although a will declared that a daughter of the testatrix held a ten-year lease, of certain real estate and empowered the executors to sell all the real and personal property as soon as said lease expired, the title to the lands vested in the beneficiaries at the death of the testatrix, subject to the power of sale," if in fact the daughter had no lease, as proved by her admission in open court and by the fact that she subsequently leased the lands from. the executors for a short period and thereafter quitclaimed to them any rights acquired under the will. •</p> <p>Under the circumstances the executors can give, a marketable title although -the period of the supposed lease has not expired.</p>

<p>Crime — grand larceny, first degree — judgment affirmed — evidence — admission to attorney not privileged.</p> <p>Appeal from a judgment convicting the defendant of grand larceny, first degree.</p> <p>Evidence examined, and held, that the judgment should be affirmed. ■ ' Admissions made by the defendant to an attorney at law at a time when the attorney was representing other parties and had no professional relations with the defendant, are not privileged.</p>

<p>G-as and electricity — municipal corporations—right to erect additional telegraph lines in city of New York — when consent of municipal authorities essential — corporation — rights acquired by merger.</p> <p>A telephone company incorporated subsequent to the enactment of sections 71, 72 and 73 of the charter of the city of New York, which in effect provide that the rights of the city in all public places are inalienable; that every grant of a franchise must be by ordinance unless otherwise provided for in the act, and that no franchise or right to use the streets and highways of a city shall be granted by the' board of aldermen for "a longer period than twenty-five year’s, acquires no operating rights in the city of New York from its own incorporation.</p> <p>Where such telephone company has acquired hy merger the rights- of another company previously incorporated, its right to put wires in the streets of New York, as acquired hy such merger, depends upon the original articles of incorporation of the merged company and the law existing at that. time. It acquires no. additional rights because the merged company-filed'a certificate extending its route subsequent to the •'enactment of sections 71-73 -oí the city charter.</p> <p>As chapter 483 of the Laws of 1881, now part of section 102 of the Transportation Corporations Law, provides that companies organized for the purpose of maintaining lines of electric telegraphs within the State can operate provided they obtain the consent of the municipal authorities before laying lines in the streets of any city, village or town, a corporation organized after the passage of said act, or its successor,, cannot extend its lines within the city of. New York or lay additional lines without the consent of the municipal authorities. ' "</p>

<p>' Appeal by the plaintiff, John Anthony Wilkens, and by the W. F. Burns Company and another, 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 May, 1909, directing the W. F. Burns Company to appear by its vice-president and general manager, Walter F. Burns, and by its agent and employee, John Y. Bowes, and produce certain documents and submit to an examination as provided in a previous order, and that upon default thereof, defendant might have an order adjudging said company and said Burns in contempt of court.</p>

<p>False imprisonment — malice not essential — bankruptcy— discharge of judgment for false imprisonment.</p> <p>An action for false imprisonment will lie where the detention was illegal, irrespective of the motives of the defendant. Neither malice nor want of prohable cause is an essential element.</p> <p>A private person is only authorized to arrest another when a crime has been committed or attempted in his presence, or where the person arrested has committed a felony although not in his presence. Hence, a cause of action for false imprisonment accrues whenever a person is arrested without a warrantihy one not an officer if no crime has in fact been committed, even though the person malting the'arrest acted in good faith.</p> <p>Where the complaint in an action for false imprisonment made no allegation of malice and based the action upon an arrest by a1 private person' without war- ■ rant, it will be assumed that the judgment followed the complaint, and that-malice was not an element of the action.</p> <p>A judgment for damages for false imprisonment recovered under such complaint is discharged by the bankruptcy of the defendant. This, because since the amendment to section 17 of the Bankruptcy. Act, made by 33 United States Statutes at' Large, 798, section 5, a bankrupt is discharged unless the judgment was for obtaining property by false pretenses or “ for willful and malicious injuries to the person or property of another.” Where the arrest was without malice there was no willful or malicious injury to the person.</p> <p>Houghton, J., dissented.</p>

<p>Appeal by George Finck and others, copartners, 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 9th day of April, 1909, directing a reference.</p>

<p>Contract—delay caused "by preliminary work — extension . of time - building contract construed — when architect’s certificate of unreasonable delay conclusive — burden to show fraud — basis of recovery where action brought before completion of work by owner. •</p> <p>Where a contract for the construction of a building required the completion thereof at a certain date, but the commencement of the work was delayed because another contractor delayed the completion of the foundations, and thereafter the contractor was directed to proceed without" any further agreement, his time to perform was extended for" a period equal to the delay.</p> <p>Where a building contract provides that should the contractor neglect to supply, sufficient .skilled workmen or fail in any respect to prosecute the work with diligence, “such refusal, neglect.or failure being certified by the architects,” the owner shall he at liberty after notice to furnish the labor or materials and deduct the cost thereof from the moneys to become due the contractor, and that if “ the architects shall certify that such refusal, neglect or failure is sufficient ground for such action” the owner shall be at liberty to terminate the contract and complete the work, in which case, if the balance to be paid under the contract shall exceed the expense of the owner in finishing the work, the excess shallzbe paid to the contractor, but if the expense shall exceed the unpaid balance the contractor shall pay the difference, it must be deemed that the parties intended to make the certificate of the architects conclusive as to whether a sufficient number of men were employed and the work prosecuted with diligence, in the absence of such unreasonable and arbitrary acts by the architects as to indicate bad faith or fraud.</p> <p>Hence, where such contract was rescinded by the owner on the certification by his architects that the work was not being properly prosecuted, the contractor cannot recover from the owner in the absence of evidence indicating bad faith or fraud on the part of the architects.</p> <p>Where such contractor brings action before the work is completed by the owner he can only recover on the theory of a wrongful termination of his employment.</p> <p>Houghton, J., dissented.</p>

' . Appeal by the defendant, Elbert Á, Bennett, from a judgment of the Supreme Court in favor of the plaintiffs^, entered in the office of the clerk of the county of ¡New York on the 27th day of March, 1909, upon the report of a referee.

Appeal by the defendants, -Moses I. Siegel and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 4th day of February, 1908, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Daniel Harris, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 30th day of Hovember, .1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, as resettled and amended by an order entered in said clerk’s office on the 25th day of January, 1909.

Appeal by the defendant, Charles Ewald, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 19th day of December, 1908, upon the decision of the court rendered after a trial at the Mew York Special Term.

Appeal by the defendant, Abe Schmulowitz, from a judgment of the Court of Special Sessions of the first division of the city of New York in favor of the plaintiff, entered in the office of thé clerk of said court on the 21st day of April, 1909, convicting the defendant of violating section 587 of the Penal Code.

Appeal by the. defendants, Harry Strasbourger and another, from a judgment of the Supreme Court' in favor of the plaintiff, entered in the office of . the clerk-of the county of Hew York on the 22d day of June, 1908, upon the verdict of a jury for $500, and also from an order entered in said clerk’s'office on the 19th day of June, 1908, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendants; John A. "Grewen and another, - from an order of the. Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 7th day of April, 1909, denying the defendants’ motion to change the place of trial herein.</p>

<p>Contract — building contract — waiver of architect’s certificates — failure to show performance — when no acceptance by owner.</p> <p>A provision in a building contract that an architect’s certificate that the work has been performed in a substantial and workmanlike manner shall he a condition precedent to any claim by the contractor against the owner is waived as to such installments as the owner paid without requiring, the contractor to produce such certificate. But the contractor is not excused from producing architect’s certificates approving subsequent work.</p> <p>Where in an action to foreclose a mechanic’s lien under a complaint which, as amended, alleged substantial performance, the referee finds that the plaintiff failed to perform more than nineteen per cent of the work called .for by the contract and deducts the same from the claim and the plaintiff fails to appeal, there can, be no recovery unless a sufficient excuse or waiver be pleaded or proved, for the 'plaintiff has failed to show performance.</p> <p>In view of the plaintiff’s failure to appeal from such decision the appellate court will assume that the deductions, which were on contested items, were made on account of a failure to perform the contract.</p> <p>Neither a complete nor a substantial performance can be predicated upon facts ' ■ showing omissions, deviations and defects of such magnitude whether or no they constitute structural defects.</p> <p>An owner by taking possession of the property does not accept the work done ' under such contract or become obligated to pay therefor.</p> <p>An architect is not guilty of arbitrarily or unreasonably withholding a certificate of due performance where the contractor has failed to perform nineteen per cent of the work called for.</p> <p>Where a building contract required all windows, except those in front of the house, to he filled with the “best, clear, American cylinder glass,” a contractor who, against the owner’s objection, put in translucent glass, which erst one-fourth of the amount of the clear glass called for, has failed to comply with the provision of the contract.</p>

<p>Appeal by the plaintiff, F. William .Sohns, from a judgment of the Supreme Court in favor of the defendants^ entered in the office of the clerk of the county of HeW York on the 30th day of December, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint'upon the merits. "</p>

Appeal by the defendant, Julius Benjamin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of June, 1908, upon a verdict of the jury for $6,000, and also (as stated in the notice of appeal) from an order denying the defendant’s motion for a new trial made upon the minutes.

<p>Judgment—when res adjudicata as to validity of mortgage — adjudication binding as to all parties.</p> <p>The final judgment of a court of competent jurisdiction is res adjudicata not only as tó one party but as to both.</p> <p>Where a mortgage wbicli is the joint obligation of two mortgagors has been declared invalid by a foreign court of competent jurisdiction, the determination of its invalidity as to one mortgagor is res adjudieata as to its invalidity as to the other made codefendant with the mortgagee, although he merely appeared and made default hy failure to answer.</p> <p>A joint obligation cannot be void as to one obligor and valid as to the other.</p>

ApReal by file defendant, The Oity 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 7th day of April, 1909, denying the defendant’s motion for an inspection and discovery.

<p>See head note in N. T. Edison Co. v. Gity of JV. T., Bm'ough of Manhattan (ante, p. 728).</p>

Appeal by the defendant, The City of Hew York, from an order of the Supreme Court, made at the Hew York Special Term, and entered in the office of the clerk of the county of Hew York on the-7th day of April, 1909, denying a motion for an' inspection and discovery. ,

<p>municipal corporation—city of New York—. revocation of auctioneer’s license — facts not establishing dishonesty — certiorari — when petition sufficient. •</p> <p>-Although the president of the- board of aldermen of the city of New York is empowered by section 34 of the charter to revoke the license of an auctioneer after a hearing on complaint of a person who has been defrauded by him, he cannot revoke such license unless the charge of dishonesty as an auctioneer is fairly sustained by competent testimony under oath on a hearing duly had on notice..</p> <p>Evidence examined, and held,, insufficient to establish dishonesty on the part of the auctioneer so as to justify the revocation of h?s license.</p> <p>■On certiorari to review the action of the president of the board of aldermen of the city of New York in .canceling the license of an auctioneer, the petitioner is not required to set out in full the evidence taken on the hearing, but need only make out a prima facie case showing that he was removed on an insufficient charge, or upon one unsupported by the evidence.</p> <p>'The writ should direct that the true record be certified and returned, and upon it alone the final adjudication should be based.</p>

Appeal by the defendant, Joseph Ramsey, Jr., 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 15th day of -April, 1909.

<p>Appeal by the' defendants, Morris Mewgold and another, 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 26th day of April, 1909, denying the defendants’ motion to dismiss the complaint because of an unreasonable neglect to prosecute, and also for an order canceling a lis pendens.</p>

<p>Appeal by the defendant, Alfred C. Prentice, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of April, 1909, consolidating an action in the Municipal Court with the above-entitled action.</p>

<p>Contract—building contract --- when letter from architect not equivalent to,certificate— approval by tenement house department.</p> <p>Where a building contract provided that no certificate of the architect or payment made under the contract “ except the final certificate or final payment ” should be conclusive evidence of performance, either in whole or in part, letters written by the architect to a plumbing contractor asking him to replace certain water valves and stating that the contractor had done all that was requested except in connection with certain vents in the roof, are not equivalent to a final certificate of the completion of the work according to contract so as to entitle the contractor to foreclose a mechanic’s lien:</p> <p>Although such contract provided that the final payment should he due when water was turned on and the work accepted by the architects and approved by the tenement house department of the city, a certificate of approval by the building department is not proof of due performance by the contractor so as to entitle him to recover.</p>

Appeal by the clefendant, Edward J. Lynett, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1908, upon the verdict of a jury, and also .from an order entered in said clerk’s office.on the 23d day1 of November, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, The Hetograph Manufacturing Company, from an order -of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19th day of April, 1909, granting the defendant’s motion to set aside the service of the summons and complaint herein.</p>

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

<p>Appeal by the defendant, Samuel S. Koenig, as Secretary of State, etc., from an order o;f 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 3d day of Juñe, 1909, granting a peremptory writ of mandamus against the defendant as Secretary of State, commanding him upon tender of the fees allowed by law to file and record a certificate of incorporation tendered by the National Investing Company.</p>

Appeal by the defendant, the Rochester 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 Monroe on the 2d day of July, 1908, upon the verdict of a jury of $12,958.33^, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

' Appeal by the defendant, William J. Burns, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 31st day of October, 1908, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 29th day of October, 1908, denying the said defendant’s motion for a new trial made. upon the minutes.

<p>Contract — agreement "of contractor to collect and pay sub-contractor — assignment — liability of assignee on promise of assignor.</p> <p>Where a general contractor induced a sub-contractor to refrain from filing a mechanic’s lien by a promise to collect the amount for the sub-contractor on its own lien and thereafter assigned the contract and the action of foreclosure to a bank which agreed to see the sub-contractor paid, one who bought the rights of the bank from its receiver subsequently appointed, with knowledge of the sub-contractor’s claim, for the consideration of one dollar, although the claim was actually worth $7,000, is liable to the sub-contractor for the balance due where the suit of foreclosure was settled for a sum sufficient to pay all subcontractors, and there was an understanding that the settlement should be distributed among them.</p>

<p>. Appeal by the plaintiff, the Pneumatic Signal Company, from a judgment of the Supreme Court in fay or of the defendant, entered in the office of the clerk of the county of Monroe on the 1st day of March, 1909, 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 March, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the General Railway Signal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Monroe on the ■9th-day of November,’1908, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on thé same day, denying the defendant’s motion for a new trial made upon the minutes. . '.

<p>Appeal by. the defendant, the E. M. Upton Cold Storage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 26th day of December, 1908, upon the report of a referee.</p>

<p>Real property — misrepresentation' as to boundaries — rescission of deed for mistake—fraud not essential. ■</p> <p>Where prior to a sale of lands the grantor pointed out the boundaries to the grantee and stated that a certain barn and fruit trees were included in the property, upon -which statement the grantee relied in making' the purchase, while as a matter of fact two and one-half feet covered by said barn and fruit trees had been previously conveyed by the grantor to another party;.- the grantee is entitled to a decree rescinding the conveyance for'a material mistake of fact.. This is so, although the misstatement by the grantor was not an intentional misrepresentation, or fraudulent, for equity will not permit a grantor to , profit by a misstatement, even though unintentional.</p>

<p>Railroad — negligence — duty of railroad to keep stopping places free from snow — evidence — privilege of physicians — waiver.</p> <p>An electric railroad running through a country district is bound to keep each regular stopping place free from dangerous accumulations of snow and ice even at .places where there are no street intersections. But the duty is a relative one to be determined by taking into consideration the weather conditions on the one hand and the safety of the passengers on the other. Each case Is'to be determined by the jury upon its particular facts..</p> <p>The plaintiff on alighting from an electric car at a regular stopping place fell on a sloping bank of snow which had been thrown iip by blades attached to cars for the purpose of clearing the rails of snow. Evidence examined, and held, that it w.as for the jury to say whether the defendant had furnished the plaintiff with a reasonably safe place to alight.</p> <p>Where, in an action to recover for personal injuries the plaintiff has introduced testimony of her own physician, it is error to exclude testimony of another physician who was called in consultation with the plaintiff’s physician showing the extent of the injuries. By calling one of the physicians the plaintiff waived the privilege as to the other. The amendments to section 836 of the Code of Civil Procedure have not changed this rule.</p> <p>McLennan, P. J., and Williams, J., dissented in part.</p>

Appeal by the defendant, the Phoenix Bridge Company, from so much of an order of the Supreme Court, made át the Erie Special Term and entered in the office of the clerk of tlm county of Erie on the 30th day of 'March, 1909, as directs the amendment of the summons and complaint herein.

<p>Beal property — easements—abandonment of right of way — adverse user — action to abate obstruction of right of way — parties plaintiff.</p> <p>Action to compel the removal of an obstruction to a right of way through an alley as a nuisance and to recover damages. The answer alleged that the plaintiff had lost the easement by abandonment and that the defendant had acquired title thereto by adverse user. Evidence examined, and held, that these issues were properly left to the jury.</p> <p>An easement acquired by grant is not extinguished by mere nonuser, even though it exceed, twenty years, if the owner of the servient estate did no act to prevent the use.</p> <p>In-order to establish the abandonment of an easement over an. alleyway, there must be definite,, unequivocal acts declaratory of a clear purpose to give up forever any use or interest in the easement.</p> <p>The above rule is strictly followed as one may lose his right'to the enjoyment of an easement by abandonment for a much less time than is required to extinguish it by adverse possession.</p> <p>Where adjoining owners have a right of way over the same alley an adverse possession claimed by one must be open,, unequivocal, continuous and equivalent to an ouster of the other party.</p> <p>Where one of two partners owned a fee of part of the premises to which a right of way Was appurtenant and "the balance thereof was owned by the partnership, they may join in an action to restrain an obstruction of the easement ■ although one of the partners has no fee in any part of the premises.</p>

<p>Appeal by the defendants, Edward Tracy Scovill and another, as executors, etc., from an order of the Supreme Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Steuben on the 23d day of February, 1909, granting the plaintiff’s motion to correct a judgment herein entered in said clerk’s office on the 3d day of October, 1906, by striking therefrom the words “ upon the merits.”</p> <p>In September, 1900, the plaintiff presented to the executors of John Hyland, deceased, a claim of $10,000.evidenced by the alleged promissory note of the testator. The claim was rejected by the executors, and written consents by the parties were made in due form and filed with the surrogate of the county of Livingston that said claim might be heard and determined upon the judicial settlement of the accounts of said executors. (Code Civ. Proc. § 1822.) A trial was had in the Surrogate’s Court when no judicial settlement was pending and the surrogate determined that said claim was invalid and a decree was entered accordingly. On appeal to this court the judgment was reversed on the ground that the surrogate had no power to determine the validity of the disputed claim “ at any other time than during the judicial settlement of the accounts of the executors of the estate.” (Matter of Ciarle v. Hyland, 88 App. Div. 392.)</p> <p>In January, 1905, the plaintiff commenced this action to recover on the note. The defendants in their answer, among other defenses, alleged the rejection of the claim, the filing of the consents in the surrogate’s office, that no judicial settlement had been had, the hearing before the surrogate and the reversal by this court, and also the six months’ Statute of Limitations. A demurrer was interposed to parts of the answer, which was sustained. at Special Term, but reversed on appeal by this court (111 App. Div. 35). An appeal from the interlocutory judgment was taken to the Court of Appeals without obtaining leave and the appeal was dismissed by that court (185 N. Y. 541).</p> <p>In October, 1906, the action was tried. The plaintiff proved the execution of the note, establishing a jyt'ima facie case as to its genuineness. The defendants proved the rejection of the claim by the executors October 26, 1900, and the execution of the consents in May, 1901, by the parties for the determination of the claim upon the judicial settlement of the accounts of the executors. It was then conceded by the plaintiff that the action was commenced January 6,1905, and that the action was not commenced within six months after the said rejection by the executors. The plaintiff conceded the truthfulness of the allegations constituting the fourth defense in .the answer, which are that there had been no judicial settlement by the executors; that the consents were duly filed with the surrogate and entered in the minutes of the court; and also that there had been a trial, and all the proceedings above referred to. There was also received in evidence a petition to the Surrogate’s Court asking that the executors be required to show cause why their accounts should not be judicially settled, and the executors’ answer thereto; and further that said petition was subsequently withdrawn by the plaintiff,, and a notice served upon the executors to commence forthwith a proceeding for the judicial settlement of their accounts, and that a failure to comply with such demand would be construed as a refusal “ to institute such proceedings.” There was also received in evidence the petition of the executors asking for a judicial settlement of' their accounts made nearly a year after the withdrawal of said petition and after the commencement of this action, and the prosecution of which was stayed on the application of the plaintiff.</p> <p>Thereupon the trial court on the motion of the defendants’ counsel directed a verdict for the defendants, and a final judgment was entered October 3, 1906, dismissing the complaint on the merits. The judgment was affirmed on appeal to this court without opinion (116 App. Div. 923). An appeal was taken to the Court of Appeals •and the judgment was affirmed (191 2L Y. 8). The latter court in its opinion held that a. determination in Surrogate’s Court could only be had on the judicial settlement of the executors’ accounts, and that by the filing of the consents for siich determination the plaintiff had elected the tribunal for the trial of the validity of the claim and was bound thereby; and that she was a creditor entitled to have her claim established on the judicial settlement, which she could compeL</p> <p>The remittitur was returned to the Supreme Court and the judg- . ment of affirmance was made the judgment of the latter court on the 29th day of January, 1908. • After the lapse of a little more than a year from the entry of that judgment an order was granted on the application of the plaintiff requiring the defendants to show cause why the final judgment entered in October, 1906, should not be corrected by striking out the clause “ upon the merits,” which application was granted. Other facts appear in the opinion.</p>

• Appeal by the defendant, James Kirkland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Lewis on the 30th day of July, 1908, upon the decision of the court rendered after a trial at the Lewis Special Term.

<p>AppEAL-by the defendants, The Palmer Lumber Company and another, from-a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the cleric of the county of Monroe-on the 31st day of December, 1908, upon the decision of the court rendered after a trial at the Monroe Special Term.</p>

Appeal by the defendant, The Fulton Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 21st day of January, 1909, upon the verdict of .a jury for $6,000, and also from an order entered in said clerk’s office on the 30th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Rochester 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 Monroe on the 21st day of January, 1909, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the 18th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, The City of Rochester, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 25th day of January, 1909, upon.the decision of the court, rendered after atrial at the Livingston Special Term, dismissing the complaint upon the merits.</p>

<p>Railroad— rule governing issuance of transfer, when reasonable.</p> <p>Under the so-called Milburn agreement, entitling passengers on street railroads in the city of Buffalo to a continuous trip between two points on the road by the most direct route, for a single fare, such trip not to include a return or round trip, it is reasonable and proper for a street railroad to adopt and enforce a rule that transfers shall be issued only when the fare is paid and that passengers must state the destination line when asking for transfers.</p> <p>Hence, a passenger who has received one transfer when paying his fare, cannot recover the penalty provided in the Railroad Law because ho is refused a second transfer.</p>

Appeal by the defendant, Philip Prosser, from a judgment of-the County Court of Steuben county in favor of the plaintiff, entered in the office of the clerk of said county on the 18th day of August, 1908, and also from an order entered on the same day affirming a judgment of a Justice’s Court rendered on the 7th day of January, 1908. '

<p>Appeal by the plaintiff, Mary Gf. Hawkes, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Niagara on the 5th day of' May, 1906, upon the report of a referee dismissing the complaint upon the merits as to said defendants.</p>

Appeal by the defendants, The Albion Cider and Vinegar Company and others, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Orleans on the 16th day of May, 1906, upon the report of a referee. Tlie amount of recovery was $1,500 and costs, and the judgment contained a further provision restraining defendants, their agents,' .etc., from further violating sections 50, 51 and 52 of the Agricultural Law.

Appeal by the defendant, The H. B. Claflin Company, from a judgment of the Supreme Court in favor of the plain tiff j entered in the office of the clerk of the county of Monroe on the 18th day of September, 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.

<p>Husband and wife — abandonment — desertion by wife without cause — ability of wife to support herself.</p> <p>A husband cannot be convicted as a disorderly person for failure to support his wife where it appears that the wife left him without adequate cause.</p> <p>Such judgment of conviction will be reversed where it appears "that the wife has property and is earning a living so that there is no danger of her becoming a charge upon the public.</p> <p>The statute authorizing such prosecution was not enacted to settle matrimonial differences, or as a substitute for an action for separation.</p> <p>Kruse and Spring, JJ., dissented, with memorandum.</p>

<p>Grime—conspiracy — evidence—uncorroborated testimony of accomplices—who is an accomplice.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 80th day of October, 1908, granting a motion for bill of particulars.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 26tli day of April, 1909, denying a motion for a commission.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 18th.day of March, 1909, granting a motion for additional hill of particulars.</p>

<p>Appeal! from a judgment, entered in the New York county clerk’s office on the 6th day of January, 1909, upon a verdict directed by the court.</p>

<p>Appeal from an order, entered in the Hew York county clerk’s office on the 3d day of June, 1909, denying defendant’s motion to set aside an order of publication.</p>

<p>Appeal from that part of an order, entered on the 1st day of June, 1909, denying a motion to continue an injunction which denies the defendants’ motion to vacate the injunction.</p>

<p>Injunction — undertalcing.</p>

<p>Appeal from an interlocutory judgment of the Special' Term sustaining a demurrer to the complaint on the ground that two causes of action are improperly united! therein.</p>

<p>Appeal by/ the: plaintiffs- from' an order-of the. Special1 Term; entered,-'in the office of the clerk of the county of Westchester on the 8th day of March, Í909; dén.y-ing'a motion" to- vacate am order'; granted* ex' parte'i extending the defendant’s ■ time to make and serve the case on. appeal until one week after the delivery to-Schuyler G: Garitón, his-attorney, of the* ori'ginal.'ex-Hibits'iti-the: possession of the plaintiffs, or copies thereof.</p>

<p>Appeal from an order of the Supreme Court, entered in the office of the clerk of Suffolk county on the 4th day of February, 1909, denying appellants’ motion for a new trial upon exceptions taken to the direction made at a Trial Term that the jury answer certain questions in the negative.</p> <p>'Order affirmed, with costs. "No opinion. Hirscliberg, P. J., B.urr, Rich and Miller, JJ., concurred; Woodward, J., read for reversal.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 8th day of October, 1908, in favor of the plaintiff, and from an order entered in said clerk’s office on the 6th day of October, 1908, denying its motion for a new trial upon the minutes. Judgment and order affirmed, with costs. Ho opinion.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk- of the county of Kings on the 30th day of November, 1908, in favor of the defendant dismissing, plaintiff’s complaint at the close of her evidence. Judgment affirmed, with costs. No opinion. Jenks, G-aynor and Burr, JJ., concurred; Woodward, J., read for reversal, with whom Miller, J., concurred.

Appeal by the defendants from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 19th day of October, 1908, in favor of the plaintiff, and from an order entered in said office on the same day denying defendants’ motion for a new trial. Judgment and order affirmed, with costs. No opinion. Jenks, Gaynor, Burr and Rich, JJ., concurred; Woodward, J,, read for reversal.

Appeal by the proponent, Samuel W. Eager, Jr., from a decree of the surrogate of the county of Orange, entered on the 30th day o£ December, 1907. Decree of the Surrogate’s Court of Orange county affirmed, with costs. Ko opinion. Hirschberg, P. J., Woodward and Miller, JJ., concurred; Burr, J., read for reversal, with whom Rich, J., concurred.

<p>Appeal by the defendant from a judgment of the Supreme Court, entered in the clerk’s office of Kings county on March 18, 1908, in favor of the plaintiff, in an action to recover damages for a personal injury, alleged to have been the result of defendant’s negligence in failing to provide him with safe appliances and a safe place in which to do his work; and also from an order entered in the same office on March 19, 1908, denying its motion for a new trial.</p> <p>Judgment and order affirmed, with costs. Ho opinion. Hirschberg, P. J., Woodward and Miller, JJ., concurred; Rich, J., read for reversal, with whom Jenks, J., concurred.</p>

<p>Pleading — equity — contract — specific performance—inability to perform— demurrer..</p>

<p>Motion for a reargument. (See 132 App. Div. 928.)</p>

<p>Landlord and tenant— expenditures by landlord — recovery.</p>

<p>Receiver —- corporation — compensation for services of receiver after a decision that his appointment was unauthorized.</p>