Volume 134 — New York Appellate Division Reports

Appeal by the plaintiff, Orville Balch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 3d day of March, 1904, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Oneida Trial Term.

Appeal by the relator, Mary J. Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Erie on the 17th day of September, 1908, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing an alternative writ of mandamus.

Appeal by the relator, James Smith, ex-sheriff of Erie county, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 14th day of April, 1909, denying the relator’s application for a peremptory writ of mandamus.

Appeal by the plaintiff, Royal D. Rounds, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 9th 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 Onondaga Trial Term.

Appeal by the plaintiff, Frank H. Talcott, as president, etc., from, an order of the County Court of Lewis county, entered in the office of the clerk of said county on the 5th day of February, 1909, vacating an order granted on the 28th day of .August, 1908, for the examination of the officers of the Beauty Spring Water Company.

Appeal by the defendant, the Phcenix Bridge Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of March, 1909, directing the amendment of the complaint, and also from an order entered on the 30th day of March, 1909, directing the amendment of the summons and complaint.

Appeal by the plaintiff, Dennis Nagle, from a judgment of the Supreme Court in favor of the defendants for costs, entered in the office of the clerk of the county of Herkimer on the 10th day of April, 1908, after the verdict of a jury in favor of the plaintiff for forty dollars directed by the court to be set off against an equal amount of said costs, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made…

Appeal by the defendant, The Minetto Shade Cloth 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 19th day of January, 1909, upon the verdict of a jury for $2,000, 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.

Certiorari issued out of tile Supreme Court and attested on the 19th day of March, 1909, directed to William S. Andrews, Justice of the Supreme Court, etc., and others, commanding them to certify and return to the office of the clerk of the county of Oneida all and singular their proceedings had which resulted in the commitment of the relator for contempt of court.

Appeal by the plaintiff, Grant L. Jones, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 4th day of December, 1908, upon a nonsuit granted by the court after a trial at the Onondaga Trial Term, the verdict of a jury theretofore rendered in favor of the plaintiff having been set aside.

<p>Beal property — vendor and purchaser — demand for conveyance not called for by contract — equitable relief.</p> <p>It is no defense to a suit to recover the purchase price of lands for the vendee who has entered into possession under the contract of sale to allege that it has tendered the purchase price but the vendor has refused to deliver a- proper deed, if the tender was made on condition that the vendor give proof of title and a full covenant deed not called for by the contract.</p> <p>A suit by the vendor is properly brought in equity and the court has power to decree the payment of the purchase price upon the execution of a proper conveyance by the vendor.</p>

Appeal by the defendants, The Roycrofters 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 Erie on the 12th day of August, 1907, upon the report of a referee awarding damages to the plaintiff for breach of contract and restraining the defendants from doing certain acts. This case was transferred to this department from the Eourth Department.

Appeal by the defendant, tbe Town of Worcester, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of the county of Otsego on the 31st day of December, 1908, 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 npon the minutes.

Appeal by the plaintiff, diaries Sisson, from an interlocutory judgment of the Supreme Court in favor of the defendant Lawrence Barnum, entered in the office of the clerk of the county of Chenango on the 27th day of Jiuie, 1908, upon the decision of the court, rendered after a trial at the Madison Special Term, sustaining the said defendant’s demurrer to the complaint.

Appeal by the defendants, Benjamin Sheldon and another, as executors, etc., from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Columbia on the 12th day of April, 1909, denying the defendants’ motion to strike from a judgment theretofore entered herein the costs against them contained in said judgment, and to allow costs in their favor.

Appeal by the defendant, Searle Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 15th day of January, 1909, upon a verdict of the jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Thomas J. Wintermute, from certain parts of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 6th day of February, 1909, upon the decision of the court rendered after a trial at the Chemung Special Term.

Appeal by the defendants, The City of New York and others, from an order of the Supreme Court, made at the Eensselaer Special Term and entered in the office of the clerk of the county of Ulster on the 17th day of February, 1909, granting the relator’s motion for a peremptory writ of mandamus requiring the defendants to forthwith provide for the determination of the damages to the relator’s business.

Certiorari issued out of the Supreme Court and attested on the 27th day of February, 1909, directed to Charles H. Gaus, as Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in granting an application, under section 137 of the Tax Law (Laws of 1896, chap. 908), to redeem certain land from a sale for unpaid taxes.

Certiorari issued out of the Supreme Court and attested on the 17th day of February, 1909, directed to Charles FI. Gaus, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in stating an account against the relator for a franchise tax for the year 1905, under section 182 of the Tax Law. (See Laws of 1896, chap. 908, § 182, as amd. by Laws of 1901, chap. 558.)

Appeal by the defendant, John M. Schoonmaker, from a final order of the% Supreme Court, made at the Albany Special Term, bearing date the 10th day of April, 1909, and entered in the office of the clerk of the county of Columbia, with notice of an intention to bring up for review a judgment bearing date the 4th day of August, 1908, and entered in said clerk’s office, upon the report of a referee in a proceeding to condemn lands for school purposes.

Appeal by the plaintiff, The Travelers’ Insurance Company, 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 14tli day of December, 1908, upon the decision of the court, rendered after a trial at the Albany Special Term, sustaining the defendant’s demurrer to the complaint and dismissing the said complaint.

<p>Appeal by the plaintiff, William W. Bryan, 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 22d day of January, 1909, upon the decision of the court, rendered after a trial before the court without a jury at the Saratoga Trial Term, dismissing the complaint.</p> <p>The action is one to recover the possession of real property. The plaintiff claimed to be seized in fee and entitled to the possession of the property, and that the defendant was in actual possession thereof, and wrongfully withholding the same from the plaintiff. The defendant claimed the title under a tax deed given by the Comptroller of the State pursuant to a sale for unpaid taxes made in December, 1900, which deed bore date June 2, 1903, and was recorded June 1, 1905. On the trial the plaintiff showed that he was the owner of the legal title of the premises which had come down to him through an unbroken chain of title since 1818. On the 22d of September, 1897, the plaintiff applied to the Comptroller for a statement of all taxes upon the property, and the Comptroller transmitted to him a bill cf the taxes thereon for the years 1893, 1894, 1895 and 1896, together with the interest, amounting all told to six dollars and two cents, inclosed in a letter to the plaintiff wherein it was stated that the bill was “ for all taxes now due this office.” The bill was paid by the plaintiff in full two days thereafter. Thereafter, in December, 1900, the Comptroller went through a form of sale of the premises for taxes prior to the year 1897, the amount of the same claimed to be unpaid amounting with interest to twenty-three cents. Subsequent thereto the said deed under which the defendant claims was given. As late as December 1, 1904, the then Comptroller wrote the plaintiff in rejfly to a letter from him that the premises were “ advertised to be sold at the 1900 sale, but [were] not sold as you paid the taxes before date of sale.” On the trial the court found that' the plaintiff was not seized as owner in fee of the premises, and that the defendant owned the same in fee and was in possession of the same, and held such possession to be lawful and dismissed the complaint. This decision as appears by the opinion was based on the provision of section 131 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1902, chap. 344), which makes a Comptroller’s deed conclusive evidence of the regularity of all prior proceedings after the lapse of two years from the giving thereof.</p>

Certiorari issued out of the Supreme Court and attested on the 29th day of January, 1909, directed to Frank W. Stevens and others, as members of and constituting the Public Service Commission of the Second District of the State of New Y’ork, and the Public Service Commission of said Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in refusing to consent to the relator’s issuing…

<p>Crime — rape — evidence — corroboration.</p> <p>The defendant was convicted of rape, second degree. The prosecuting witness, fifteen years of age, testified that the defendant had intercourse with her on two specific days and it was sought to corroborate this testimony by proof that she gave, birth to a child 290 days after the last intercourse, 280 days being the normal period of gestation. She did not divulge the act complained of until about four months after its alleged occurrence. Evidence was also given of an alleged confession by the defendant, wherein it was claimed he admitted that he was the cause of the pregnancy. Held, that the judgment should be reversed and a new trial granted.</p> <p>Burr, J., dissented.</p>

<p>Appeal by the defendant, Thomas Leary, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 18th day of January, 1909, upon the verdict of a jury, and also from an order entered in said clerk's office on the 8th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Master and servant — negligence — employment of infant under fourteen years of age contrary to Labor Law — contributory negligence of infant — trial — request to charge — evidence — certificate of birth — false statements as to age.</p> <p>The employment of a'n infant under fourteen years of age in a factory contrary to section 70 of the Labor Law is some evidence of negligence on the part of the master independent of any other negligence.</p> <p>In an action liy an infant under fourteen years of age employed in a factory contrary to section 70 of tlio Labor Law, the question of the plaintiff’s contributory negligence is not confined to his negligence in obtaining the employment when under age, but also includes negligence contributing to the accident. Hence, it is not error to refuse to charge that if the jury find that the plaintiff was not negligent in obtaining his employment, the defendant is liable, if there be evidence of other negligence by the plaintiff contributing to the accident.</p> <p>There is no presumption that a boy thirteen years of age is non sui juris and he is chargeable with care and prudence commensurate with his years.</p> <p>Where a request to charge embodies two propositions, one of which is sound and the other unsound, the court is not obliged to separate the two and charge the sound proposition.</p> <p>Evidence examined, and held, that the question as to whether the negligence of the plaintiff had contributed to the accident was properly loft to the jury.</p> <p>In an action by an infant under fourteen years of age, employed in a factory, to recover for personal injuries, it is not error to exclude a certificate of bis birth in corroboration, where it does not appear that the alleged certificate was contained in any record or was a copy duly attested, or was a verified transcript, so as to comply with the requirements of chapter 309 of the Laws of 1888, or to be admissible under section 933 of the Code of Civil Procedure.</p> <p>Where proof by certificate is substituted by statute for commou-law evidence all the forms directed by the statute, whether preliminary or substantial, must be strictly complied with.</p> <p>A master charged with negligence in employing an infant under fourteen years of age in a factory contrary to section 70 of the Labor Law may show that the plaintiff when seeking the employment stated that he was over fourteen years of age.</p> <p>Gaynor, J., and Hirschberg, P. J., dissented, with opinion.</p>

<p>Appeal by the defendant, the Sackett & Wilhelms 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 Ith day of January, 1909, upon the verdict of a jury.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of February, 1909, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 10th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the purchaser, Annie Wolf, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of.Kings on the 9th day of February, 1909, directing a resale of premises sold under a judgment of foreclosure and sale and charging the purchaser with any deficiency on the resale unless she should complete her purchase.</p>

Appeal by the defendant, H. Batterman, 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 12th day of January, 1909, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 16th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, George F. Kerr, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of January, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, the Iron Clad Manufacturing 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 April, 1909, upon the verdict of a jury for $2,250, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Albert Korber, 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 15th day of April, 1909, granting the motion of the defendant bank for a bill of particulars.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Municipal Court of the city of New York in favor of the defendant, rendered on the 14th day of January, 1909, dismissing the complaint.

<p>Landlord and tenant — misrepresentation of condition of furnished house — notice to repair—hidden defects — fraud.</p> <p>Action to recover the rent of a furnished house, the defense being that the tenant had vacated 'because she was induced to make the lease by fraudulent representations respecting the condition of the premises. Evidence examined, and held, that a finding by the jury that there was no representation by the landlord that the heating system was sufficient was against the weight of the evidence.</p> <p>Where prior to a lease the landlord, through his agent, represented that the house had been put in perfect order, as previously agreed, the tenant may vacate, if the landlord failed to repair a serious leak in the roof after notification of the defect.</p> <p>Where a serious defect in a cesspool connected with the house was not discoverable by inspection, except when the premises were in use, the landlord was bound to disclose the defect, where he induced the execution of the lease by stating that the premises were in perfect order.</p> <p>While a landlord makes no implied covenant to repair, or implied representation that the premises are tenantable, the rule has no application, if there was fraudulent misrepresentation or concealment.</p> <p>There is a distinction between letting an unfurnished house and one furnished ready for occupancy, and where the tenant claims misrepresentation and deceit, the fact that the house was let furnished is a circumstance to be considered in determining the question of fact.</p>

<p>Appeal by the defendant, Isidor Bosenschein, from a judgment of the Supreme Court in favor of- the plaintiffs, entered in the office of the clerk of the county of Kings on the 26th day of January, 1909, upon the verdict of a jury, and also from an ordei entered in said clerk’s office on the 25tli day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Certiorari issued out of the Supreme Court and attested on the 27th day of March, 1909, directed to Chester 0. Ketcham and others, composing the hoard of trustees of the village of Babylon, commanding them to certify and return to the office of the clerk of the county of Suffolk all and singular their proceedings had in laying out a certain street in the village of Babylon, the relator being the owner of the land to be taken.

<p>Executors and administrators — compulsory accounting — persons not entitled to petition — will — gift with discretionary power to divide estate.</p> <p>A person not a creditor, or entitled to a legacy, or other pecuniary provision, or distributive share under a will, has no standing to compel the executor to account.</p> <p>Where a will gives the whole residuary estate to a son of the testatrix for the use and benefit of himself and his sisters “in such proportions and at such times and in such manner as he (the son) shall in his judgment and discretion deem proper, right and advisable,” and states that the testatrix has full confidence in the integrity and justice of her son, and vests-him with the legal title and full discretion to use the property for the benefit of himself and sister’s there is no legal duty or trust imposed upon the son. He may give such portion to his sisters as he may choose to give, or he may give nothing.</p> <p>Hence, a sister, not being entitled to any pecuniary provision, has no standing to compel her brother to account as executor.</p>

<p>Appeal by the plaintiff, Julia McGowan, 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 23d day of February, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint.</p>

Appeal by the defendant, Kunigunda Goetz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of October, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term in an action for the partition of real property.

<p>Appeal — review of order setting aside verdict — railroad — negligence — death of child.</p> <p>As a trial justice in determining whether a verdict is or is not contrary to the weight of evidence, has the advantage of observing the demeanor of the witnesses, etc., his decision will not be disturbed unless it is perfectly clear that his discretion has been improperly exercised.</p> <p>Action to recover for the death of a child four years of age who was struck by a street car. Evidence examined, and held, that an order setting aside a verdict for the plaintiff and granting a new trial should be affirmed.</p> <p>Hirschberg, P. J., dissented.</p>

Appeal by the relator, Fleischmann Manufacturing Company, 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 15th day of February, 1909, upon the decision of the court dismissing a writ of certiorari theretofore granted to review the action of the respondents in assessing that portion of the lands of the relator lying within their school district for school purposes.

Exceptions ordered to be heard at the Appellate Division in the first instance, upon the denial of the defendant’s motion to set aside

Appeal by the defendant, John P. Steich, 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.

Appeal by the plaintiffs, Emma Seaman and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Westchester on the 3d day of May, 1909, upon the verdict of a jury rendered by direction of the court, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 17th day of February, 1909, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendant, Francis S. Woods, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of March, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling a demurrer to tl'ie complaint in an action brought by an assignee of defendant’s wife to recover payments claimed to be due under an agreement of separation.

Reargument of an appeal by the defendant, the Astoria Veneer Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the°cleric of the county of Kings on the 30th day of July, 1906, upon the decision of the court rendered after a trial at the Kings County Special Term. (See 121 App. Div. 182.)

<p>Master and servant—negligence — safe place to work — contributory negligence — fellow-servant.</p> <p>The measure of a master’s duty is affected by the purpose for which a place is to be used; and where he provides a place which is only to be used for a special kind of work, the fact that it is not safe when used for other purposes, does not make him liable.</p> <p>A master is not liable because an employee, without authority, express or implied, assumed to direct another employee to work in a place unsafe and unfitted for the work.</p> <p>Where an employee was called to his master’s office, and without the knowledge of the master or its assent, express or implied, -was instructed by the assistant bookkeeper, whose duties were purely clerical, to take a key, let in a man who bail come to deliver oil, and then hang the key in the pumphouse, and it appears that the pumphouse, which was dangerous, because of an unguarded pit therein and because it was unlighted and generally filled with steam, was rarely used by the workmen for any purpose, and that plaintiff, who had worked there six years, had never seen any one enter it or entered it himself, the master is not liable because he fell into the pit while returning the key.</p> <p>It was contributory negligence for the plaintiff to enter the pumphouse when he was entirely unfamiliar with its construction, and it was impossible for him to see because of the steam and mist therein.</p>

<p>Contract — account stated — stockbroker — question for jury.</p> <p>After ail account stated, the consideration of the original indebtedness cannot be inquired into in the absence of fraud or mistake. The burden of impeaching such an account for fraud or mistake rests upon him who repudiates itXnd the evidence must be clear and convincing.</p> <p>An account rendered becomes an account stated when its correctness is admitted and the assent may be either express or implied. Such assent may be found where one party presents an account to another, which the latter retains, without making objection within a reasonable time.</p> <p>Where the assignee for the benefit of creditors of a firm of stockbrokers rendered an account to a customer, which was retained by him without objection for more than a month, it cannot be said as a matter of law that the customer did not assent to the same so as to make it an account stated, and in an action to recover the indebtedness a direction of a verdict for the defendant is error.</p>

Appeal by the defendant, The City of New York, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered on the ‘29th day of January, 1909, and also from an order denying the defendant’s motion for a new trial. Also an appeal by the plaintiff, Rudolph Maisch, from an order of the said court, correcting the date of entry of judgment.

, Appeal by the plaintiff, Mary J. Hoffman, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the cleric of the county of Westchester on the 2d day of February, 1909, setting aside the verdict of a jury in favor of plaintiff, and granting a new trial of the action unless plaintiff stipulate to reduce the verdict.

<p>Beal property — vendor and purchaser — restrictive covenants—when they inure to benefit of purchasers —marketable title.</p> <p>A landowner caused a map of part of his land to be made; subdivided it into lots and had copies of the map made stating that “ this property when sold is restricted, thus making it a first-class residence locality.” Thereafter he sold all the lots by deeds restricting the use of the lands to residential purposes and pro- - viding that all houses erected thereon should cost at least a specified sum and be twenty feet back from the building line. The deeds provided that such covenants should be applicable to all the property shown on the map, should be operative until 1930 and'run with the land.</p> <p>Held, that a grantee of certain lots could not give a marketable title by his own deed together with a subsequent release by the original owner and his wife of all the covenants so far as they were able to do so.</p> <p>The covenants, which were entered into with the design to carry out a general scheme for the improvement or development of the land covered by the map, inured to the benefit of all the owners of lands shown on the map, and could not be released without their consent.</p>

Appeal by the defendant, the Uvalde Asphalt Paving 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 1st day of March, 1909, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the United States, for the benefit of Henry Collins, 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 9th day of March, 1909, as resettled and amended by an order entered on the 30th day of March, 1909, directing the plaintiff to file an undertaking for security for costs.

Appeal by the plaintiffs, G-ustave Segschneider and another, 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 12th day of April, 1909, denying the plaintiffs’ motion to vacate an order bearing date the 13 th day of March, 1909, directing them to appear for examination before trial, and also from the said order directing their examination.

Appeal by the plaintiff, William F. Stodder, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered upon an order of said court vacating and setting aside the verdict of a jury, rendered in favor of the plaintiff on the 7th day of January, 1909, upon the trial of the action, and also from such order.

Appeal by the plaintiffs, Michael Bernstein and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 5th day of February, 1909, upon the dismissal of the complaint by direction of the court upon a trial at the Kings County Trial Term.

Appeal by the plaintiffs, Michael Bernstein and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 5tli day of February, 1909, upon the dismissal of the complaint by direction of the court upon a trial at the Kings County Trial Term.

<p>Equity — pleading — real property — determination of boundary line — misjoinder.</p> <p>Equity permits all interested in the subject-matter of the suit to be joined therein where the matter has become so involved that the rights of the parties are in doubt and the court can make its judgment so full as to quiet the controversy in all respects.</p> <p>The plaintiff, a landowner, sued adjoining owners on the north and south. The complaint alleged that all derived title from a common grantor; that plaintiff’s lot was fifty feet in width; that the space between the buildings of the defendants was less than fifty feet; that one or both encroached upon his land; that he had caused surveys to be made by several surveyors, who all agreed as to the encroachment but disagreed as to which of the buildings encroached, and that the rights of the parties are in doubt, and asked that the boundary lines be fixed, and that an injunction issue restraining the encroachment when determined.</p> <p>Held, that the complaint stated a cause of action in equity, and that the alleged misjoinder of actions, if any, was not substantial and did not bar the action.</p> <p>Miller, J., dissented.</p>

<p>Carrier— duty to protect passengers — pleading — amendment at trial — assault — permanency of injuries — failure to protect passenger against assault — amendment changing place of assault —loches.</p> <p>A carrier o£ passengers is bound to protect them from the negligent or willful miscQnduct of its servants while engaged in the performance of duties arising from the relation of carrier and passenger.</p> <p>Where a complaint alleged that the plaintiff while a passenger on the defendant’s train was, when the train stopped at a certain station, without fault on her part, maliciously and violently assaulted and ejected from the train by the defendant, an amendment alleging that the injuries received by the plaintiff were permanent and that the defendant failed “ to protect the plaintiff from assault and violence" does not change the cause of action, which is still limited to assault committed by the defendant’s servants at the station mentioned.</p> <p>But an amendment stating “ that the defendant failed and neglected to protect the plaintiff from assault and violence caused by others while plaintiff was a passenger on said train," and providing that the answer be deemed amended so as to deny such allegation, is unauthorized, first, because it deprived the defendant of its right to answer or demur, and, second, because it would allow the plaintiff to recover by reason of the defendant’s failure to protect the plaintiff from assault of persons not its employees at places upon its road other than the station mentioned.</p> <p>Moreover, where the motion for such amendment was made two and one-half years after the original complaint was served, it should be denied for gross loches in that the plaintiff and her attorney had full knowledge of the place where the assault was made. Especially is this so where such amendment is asked during the progress of the trial.</p>

<p>Appeal by the plaintiff, William Flanagan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 28tli day of December, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Queens County Trial Term in an action to recover damages for personal injuries alleged to have been sustained by the plaintiff while in the defendant’s employ.</p>

Appeal by the plaintiff, Harry Gross, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 19th 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 Queens County Trial Term.

<p>Mechanic’s lien — damages — interest — contract — novation.</p> <p>Where a sub-contractor having filed a mechanic’s lien, after the bankruptcy of the contractor made a new agreement to complete the work of the contractor for an estimated sum, to be paid on the completion of the work and the dis- . charge of certain mechanics’ liens, a .further sum to be paid to the receivers of the principal contractor and distributed among the lienors, he is not, after the completion of the work, entitled to interest on the sums due the original contractor prior to the discharge of the mechanics’ liens, for the new agreement superseded the original contract.</p>

• Appeal by the defendant, Israel Fischman, 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 10th day of December, 1908, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 26th day of December, 1908, denying the defendant’s motion for a new trial made upon the minutes.' The action was brought to recover damages for libel.

Appeal by the defendants, William Be Conroy White, individually and as surviving trustee, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡Nassau on the 20tli day of July, 1908, upon the decision of the court, rendered after a trial at the Nassau Trial Term, both sides having moved for a direction of the verdict, with notice of an intention to bring up for review an intermediate order…

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

Appeal by the defendant, Michael J. Dady, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d 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 24th day of December, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Stephen M. Hoye, 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 15th day of January, ■ 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 8th day of April, 1908.</p>

Appeal by the defendant, The United States Fidelity and Guaranty 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 21st day of May, 1908, upon the decision of thé court rendered after a trial at the Kings County Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 21st day of November, 1908, denying the defendant’s motion for a new trial made…

Appeal by the defendant, Albert Halpern, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 1st day of March, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Hyman Kleinstein, from a final order of the Municipal Court of the city of Hew York in favor of the defendants, entered on the 31st day of March, 1909.

<p>Malicious prosecution—want of probable cause.</p> <p>Where, in an action for malicious prosecution, it appears that plaintiff was walking through a railroad yard with a fellow-workman and was asked to hold'a package for him; that while he was doing so defendant’s special officer ‘ ‘ grabbed ” him, and upon the package being opened it was found to contain brass journal boxes identical with certain ones missing from cars in the yard, the plaintiff fails to show want of probable cause. ■</p> <p>HIRSCHBERG, P. J., dissented.</p>

Appeal by the plaintiffs, Joseph Rottkamp and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 3d day of.

Appeal by the plaintiff, Henry C. Tinker, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 18th day of July, 1908, dismissing the complaint at the close of the plaintiff’s case upon a trial at the Suffolk Special Term, in an action brought under the Taxpayers’ Act * to restrain the trustees, highway commissioners and supervisor of the town of Brookhaven, Suffolk county, from spending town…

<p>Crime — larceny by agent in possession or control of property—Penal Code, section 528, subdivision 2, construed — physical possession not essential — accessory before the fact may be held as principal — venue — place of crime — charge approved—evidence — intent — restoration.</p> <p>The distinction between a principal and an accessory before the fact no longer exists, and a defendant may now be charged in the indictment as a principal, if he counsels, induces or procures the commission of a crime, although absent at the time of its commission.</p> <p>In order to constitute a felonious misappropriation of property in “ possession, custody or control ” as bailee, agent, trustee or officer, etc., under subdivision 2 of section .528 of the Penal Code, it is not necessary that the defendant have actual physical possession of the property.</p> <p>Thus, where the president and vice-president of a savings and loan company, having the usual powers of such officers and control over employees, directed the treasurer and cashier of the company to appropriate its funds and replace the same by worthless checks, and caused the sums so obtained to be expended in a mining scheme for their own interest, they are guilty of a violation of subdivision 2 of section 528 of the Penal Code, although they had no physical possession of the moneys.</p> <p>The venue of a prosecution for such offense is properly laid in the county where the office of the savings and loan company was situated, although the money was used to take up drafts in another county.</p> <p>It was not error to charge in substance that the fact that the defendants were guilty of a misdemeanor in making false reports to the State Banking Department should not he considered on the question of their guilt in violating subdivision 2 of section. 528 of the Penal Code, because such instruction was intended for their benefit.</p> <p>In such prosecution, a composition agreement made between the defendants and their corporation offering restitution is inadmissible to show lack of criminal intent at the time the money was taken.</p>

Appeal by the defendant, The Nassau Light and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Nassau on the 22d day of July, 1908, upon the report of a referee.

Appeal by the defendant, the Cunard Steamship Company, Limited, from an order of the Municipal Court of the city of New York, bearing date the 27th day of April, 1909, vacating a judgment and granting a new trial.

Appeal by the defendant, Patrick McSorley, from a default judgment of the Municipal Court of the city of Mew York, rendered on the 29th day of December, 1905, taken on the ground of non-service of the summons.

Appeal by the plaintiff, Nicholas B. Jungeblnt, from a judgmént of the County Court of Dutchess county in favor of the defendant, entered in the office of the clerk of said county on the 26th day of December, 1908, upon the verdict of a jury, and also from an order bearing date the 19th day of December, 1908, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Nichols Copper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 6th day of January, 1909, 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 in an action for negligence, brought by servant against master.

Appeal by the defendants, Postal Telegraph-Cable Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡Kings on the 17th day of December, 1908, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, John T. Pritchard 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 31st day of March, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Annie Wittmer, as administratrix, etc., 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 lath 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 Kings County Trial Term, and also from an order entered in said clerk’s office on the 25th day of January, 1909, denying the plaintiff’s…

Appeal by the Comptroller of the State of New York from an order of. the Surrogate’s Court of the county of Nassau, entered in said Surrogate’s Court on the 27th day of June, 1908, affirming an order theretofore entered in said court confirming the report of a transfer tax appraiser herein.

<p>Appeal by the defendants, Dikran B. Donchian and another, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 31st day of March, 1909.</p>

<p>Railroad — negligence — failure to furnish, competent fellow-servants.</p> <p>Where a foreman employed by a railroad to superintend the unloading of cars at-a quarry directed an ignorant and incompetent laborer to loosen the brake of a car so that it ran down a grade and collided with other cars, to the injury of a fellow-servant, the railroad may be found negligent in failing to furnish competent and skillful fellow-servants.</p>

Appeal by the defendants, Thompson W. Miller and another, copartners, etc., from a judgment-of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 6th day of January, 1909, upon the verdict of a jury for $350, and also from an order entered in said clerk’s office on the 8th day of January, 1909, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Michael Rizzo, from a judgment of the County Court of Nassau county in favor of the plaintiff, entered in the office of the clerk of said county on the 15th day of July, 1908, upon the verdict of a jury convicting the defendant of criminally receiving stolen goods.

<p>Damages — breach of contract — profits.</p> <p>In an action for the breach of a contract giving the plaintiff a portion of the profits made by operating a sight-seeing motor bus, it is error to allow such profits as he might have made had the weather permitted him to make trips with a full complement of passengers during the entire period of the breach, including a time when the car could not be operated by reason of injury by fire.</p>

Appeal by the defendants, William J. Bryon and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 13th day of Hay, 1909, and entered in the office of the clerk of the county of Nassau upon an order made at the Kings County Special Term on the 7th day of May, 1909, and entered in said clerk’s office, and also from the said order directing the entry of the interlocutory judgment.

Separate appeals by the defendants, Anna Benkard Hunt and others, and by the defendants, William Jay and another, as substituted trustees for Anna Benkard Hunt, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of October, 1908, upon the decision of the court rendered after a trial at the New York Special Term, and a cross-appeal by the plaintiff, Frederick William Newton, surviving executor, etc., which is…

<p>Application by the Associated Lawyers’ Company pursuant to section 280 of the Penal Law.</p>

<p>Practice — dismissal for failure to prosecute — insufficient excuse.</p> <p>Where a plaintiff failed to serve notice of trial or note of issue for nearly three years after issue joined, and junior non-referred causes havp been disposed of in their regular order, the defendant’s motion to dismiss for failure to prosecute should be granted if the only excuse for the plaintiff's loches is an affidavit of an attorney who merely represented him in retaining the attorneys of record stating that he undertook to place the case on the calendar for the attorneys of record, hut that owing to the destruction of his office papers by fire, he did not know that his clerk had failed to do so.</p> <p>Where the moving papers on a motion to dismiss for failure to prosecute make a prima fade case and no satisfactory excuse is presented, the motion will be granted, notwithstanding the fact that the plaintiff is stirred to activity by the motion to dismiss. Subsequent diligence is no excuse for past neglect.</p>

Appeal by the plaintiff, Ottilia Bier, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 26th day of May, 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 Mew York Trial Term in an action to recover damages for the death of the plaintiff’s intestate alleged to have been due to the erection and…

Appeal by the plaintiff, John Fiesel, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 16th day of June, 1909, denying the plaintiff’s motion to restore the case to the day calendar after it had been sent to the foot of the general calendar, in an action for personal injuries.

<p>Appeal by the petitioners, Albert H. Woods 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 1st day of June, 1909, denying the petitioners’ application to punish the respondents, Isidore Slonov and Arthur Gr.. Sclilemmer, for contempt of court.</p>

Appeal by the plaintiff, Eugene E. Stokes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of March, 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 New York Trial Term.

Appeal by the plaintiff, Congregation Kehal ‘Adath Jeshurun M’Yassy, from a judgment of the Supreme Court in favor of the defendant bearing date the 5th day of May, 1909, and entered in the office of the clerk of the county of Hew York upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.

<p>Master and servant — negligence — death, by fall from, bridge — tie used in temporary railroad not scaffold.</p> <p>Neither the deck of a bridge upon which it is proposed to install an elevated railroad, nor a tie laid thereon to accommodate a traveling derrick, is a scaffold within the meaning of the Labor Law.</p> <p>Where an employee fell and was killed because in the course of his duty he stepped upon the projecting end of a loose tie which had been used as a portion of a temporary track to support a derrick, it is error to refuse to charge that the tie was not a scaffold within the meaning of the Labor Law. „</p>

Sammon on the official ballot under the emblem of the Goddess of Justice and the name of Civic Alliance to be voted for at the next ensuing election as judge of the Municipal Court in the third district, borough of Manhattan, in the city of Mew York.

<p>Elections — emblem and party name — nominations — good faith — conflicting nominations — duty of general committee.</p> <p>When a body of voters meet for the purpose of organizing an independent ticket and a committee has been appointed which adopts an emblem and a name and subsequently files petitions naming a candidate for the head of the ticket and a committee has been appointed to take charge of the canvass and nominations, the name and emblem adopted by such committee and the persons representing them are to be considered as belonging to that political movement. It becomes a question of good faith as to whether or no particular persons nominated for the ticket are in sympathy with the movement. Thus, those nominated by those in sympathy with the movement should be recognized by the hoard of elections.</p> <p>When there is a contest over two certificates signed by different nominators, the preference of the committee in charge of the general ticket should have great weight in determining who shall be candidates in that column. A certificate filed with the board of elections nominating candidates of another party who are in opposition to the ticket on which they desire to be placed, should not be recognized merely because it is the first certificate filed.</p>

<p>Appeal from orders of the Supreme Court, made at the Yew York Special Term overruling the action of the board of elections and directing that the names of candidates for aldermen and Assembly shall be placed upon the official ballot under the name and emblem of the Civic Alliance.</p>

Appeal by tlie plaintiff, Sarkis Jelalian, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of May, 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 New York Trial Term.

Appeal by tlie plaintiff, Annie D. Preusse, 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 7th day of Hay, 1909, upon the dismissal of the complaint by direction of the court upon the opening at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 6th day of Hay, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Wonham-Magor Engineering Works, 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 23d day of December, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Consolidated Gas Company of ■Yew York, from an order of the Supreme Court, made at the Yew York Trial Term and entered in the office of the clerk of the county of Yew York on the 14tli day of April, 1909, granting the plaintiff’s motion made upon the minutes to set aside the verdict of a jury theretofore rendered in favor of the said defendant and for a new trial.

Appeal by the defendants, the United Verde Copper Company 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 New York on the 16th day of January, 1908, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Master and servant — negligence — evidence — prior decision — res adjudicata.</p> <p>Where a judgment in favor of the plaintiff suing to recover for the death of her intestate was reversed on a former appeal on the ground that she failed to show that the injuries were the proximate cause of death without any expression of opinion as to the sufficiency of the evidence to show negligence, the former decision is not res adjudicata as to the defendant’s negligence.</p> <p>Evidence in an action to recover for the death of a workman alleged to have been caused by the fall of a stone from an embankment examined, and held, to present questions íor the jury as to whether the decedent understood a warning alleged to have been given ; whether he was iree from contributory negligence, and whether the defendant should have removed or shored up the stone or warned the decedent of the danger.</p> <p>Patterson, P. J., and Ingraham, J., dissented.</p>

Appeal by the defendants, Arnold B. Heine and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of Hovember, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of Hovember, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Jules E. Gimbernat, from part of a judgment of the Supreme Court in favor of the defendant Henry M. Black, entered in the office of the clerk of the county of New York on the 25th day of August, 1908, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the Erie ¡Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered • in the office of the clerk of the county of New York on the 10th day of February, 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 18th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Max Greenberg, from that part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of September, 1909, which directs him to pay alimony to the defendant pending her appeal from an interlocutory judgment of divorce theretofore entered in favor of the plaintiff.

<p>Appeal by the defendants, Hugo Freudenthal and others, as executors, etc., 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 29th day of March, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1909, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the judgment debtor, Henry A. Root, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of May, 1909, directing the Madison Safe Deposit Company to permit the receiver of the judgment debtor, appointed in supplementary proceedings, to open a safé deposit box in the vaults of said company standing in the joint names of the judgment debtor and Mrs. Ellen S. Oornue, and…

<p>Appeal by the plaintiff, Adam Eeinhardt, as sole surviving and liquidating partner of the copartnership of Eeinhardt Brothers, 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 15tli day of June, 1909, granting a motion of the defendant Carrie Eeinhardt for the appointment of a receiver pendente lite of the rents, issues and profits of certain premises.</p>

<p>Appeal by Noah E. Barnes and another from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of August, 1909, permitting the petitioner, Elise Scheel, to intervene in a proceeding instituted by Hans Ferdinand Barnes to declare invalid an alleged election of directors of the Cottonwood Creek Copper Company, and making her a party thereto.</p>

Appeal by the plaintiff, John B. Smith, from an order of the Supreme Court,.made at the Hew York Special Term and entered in the office of the clerk.of the county of Hew York on the 22d day of June, 1909, denying the plaintiff’s motion for retaxation of costs.

Appeal by the defendant, Joseph H. Hoadley, 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 7th day of June, 1909, amending an interlocutory judgment theretofore entered herein.

Appeal by the defendant, the Hew York Cab Company, Limited, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of May, 1909, granting the plaintiffs’ motion for a bill of particulars as to defendant’s counterclaim.

Appeal by the plaintiff, The Bector, Churchwardens and Vestrymen of St. Stephen’s Protestant Episcopal Church of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of June, 1909, as resettled by an order entered on the 28th day of June, 1909.

Appeal by the plaintiff, Annie Muldoon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 1st day of March, 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 Hew York Trial Term.

Appeal by the relator, Harry Tobenkin, 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 July, 1909.

Appeal by the relator, William H. Duncan, 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 24th day of May, 1909, quashing a proceeding for a writ of mandamus to compel the payment of a rebate on a surrendered liquor tax certificate and dismissing the petition herein.

<p>Equity—distinction between law and equity still exists—pleading— supplemental complaint in suits in equity and actions at law—torts subsequent to commencement of action at law.</p> <p>Section 3339 of the Code of Civil Procedure, stating that there is but one form of civil action and that the distinction between actions at law and suits in equity has been abolished, does not mean that the essential characteristics which distinguish the two have been abolished, but merely goes to matters of form, not substance.</p> <p>The court will allow a supplemental complaint to be filed in a suit in equity alleging facts occurring since the commencement of the suit which are necessary to enable the court to shape its relief to the situation existing at the time of trial. But in an action at law the entire cause of action must have existed at the time of the commencement thereof, and, with a few exceptions, subsequent damages cannot be recovered.</p> <p>Thus, where twelve years have expired since the commencement of a legal action to recover for a number of tortious acts, and the plaintiff during that period has served two amended complaints, the court has no power to permit him to file a supplemental complaint bringing a large number of additional and independent torts into the case, where the Statute of Limitations has run against many of them and the damages are increased from $500,000 to $3,500,000.</p>

Appeal by the defendant, the Star Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 13tli day of August, 1909, vacating an order for the examination of plaintiff before trial.

Appeal by the defendant, The Mutual Life Insurance Company of Rew York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of. Rew York on the 8tli day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 28th day of December, 1908, directed to William E. Stillings and others, commissioners under chapter 537 of the Laws of 1893, as amended, 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 regard to a certain award made on a claim for damages.

<p>Appeal by the defendant, Ryan-Parker Construction Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, which directs the service of a bill of particulars.</p>

<p>Appeal by the plaintiffs, Edward L. Woolf and others, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 4tli day of Hay, 1909.</p>

Appeal by the defendants, The Commissioners for Loaning Certain Moneys of the United States of the County of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of July, 1909.

<p>Appeal by the plaintiff, Adelia Gertrude Stringer, 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 10th day of December, 1908.</p>

Appeal by the defendant, John Schween, 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 12th day of July, 1909.

Appeal by the defendant, Arthur J. Koehler, from an order of the Supreme Court, made at the New York Special Term on the 19th day of May, 1909, and entered in the office of the clerk of the county of New York.

<p>Contract — consideration — mutual promises — trial — charge — effect of refusal to charge.</p> <p>Where in an action by the secretary of a corporation for unpaid salary, the only question is whether plaintiff and the president and treasurer of the defendant had mutually agreed to relinquish claims for a part of their salaries retained in pursuance of a prior agreement, it is error to refuse to charge tiiat if “ plaintiff promised to relinquish his claim and the president and treasurer promised at the same time in the presence of each other to also waive theirs, and they did so, they, being the directors of the company, as a matter of law the jury should find that that waiver was based on a valuable consideration,” namely, tlie mutual promises.</p> <p>Nor is the error harmless because the court had previously given a correct instruction, for the refusal was equivalent to a charge that the mutuality of the agreement was not a sufficient consideration to support it.</p>

Appeal by the plaintiff, Amie Davis, 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 blew York on the 14th day of May, 1909.

Appeal by the defendant, Adolph Loewenthal, as president, etc., from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 28th day of June, 1909, granting a temporary injunction.

Appeal by the plaintiff, Paul Shotland, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of October, 1909, restraining a landlord from interfering with a tenant’s possession.

Cross-appeals by the plaintiff, Charles E. Thomson, as executor, etc., and the defendants, G-eorge C. Batcheller and others, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of January, 1909, upon the decision of the court rendered after a trial at the New York Special Term in an action in equity for an accounting.

Appeal by the defendant, John J. Haigney, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 9th day of February, 1909, upon the decision of the court rendered after a trial at the Hew York Special Term in an action in equity to foreclose a lien upon certain shares of stock.

Appeal by the defendant, John J. Haigney, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 9th day of February, 1909, upon the decision of the court rendered after a trial at the Hew York Special Term in a suit in equity to foreclose a lien upon certain shares of stock.

Appeal by the defendant, Schencke Piano 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 26th day of March, 1909, upon the verdict of a jury for $4,350, and also from an order entered in said clerk’s office on the 8th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.

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

Appeal by the relator, Amia Fellmau, from an order of the Supreme Court, made at the Mew York Special Term and entered in thé office of the clerk of the county of Yew York on the 14th day of September, 1909.

<p>Pleading— allegations impeaching an account stated.</p> <p>Although an account stated cannot be impeached except for fraud or mistake, a complaint attacking such account need not use the words of opprobrium if it allege facts showing fraud or mistake.</p> <p>Thus, where a complaint alleges in substance that after the dissolution of a partnership between the parties and an accounting, the plaintiff, for the first time discovered that the defendant had received moneys on account of the partnership business, which he had conducted in his own name and did not disclose on the accounting, the complaint should not be dismissed merely because the fraud or mistake shown by such acts are not characterized as such.</p>

Appeal by the plaintiff, Walter P. Molloy, an infant, 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 18th day of June, 1909.

Appeal by the defendants, Peter C. Fleming and others, from an order of the Supreme Court, made at the New York Special Terin and entered in the office of the clerk of the county of New York on the 28th day of July, 1909, granting the plaintiffs motion to vacate an order, interlocutory judgment and final judgment previously made in the action.

Appeal by Elmore S. Banks and another, as committee, etc., 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 28tli day of August, 1909. The statutes of Connecticut which are mentioned in the opinion may be found in chapter 20, section 237 et seq., of the General Statutes of Connecticut (Revision of 1902), as amended.

Appeal by the plaintiff, William Garter, 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 September, 1909.

<p>Appeal by the plaintiff, Julian Benedict, 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 18th day of March, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of March, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Kinderhook Knitting Company, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 2d day of July, 1909, granting the plaintiff’s motion for judgment on the pleadings.

<p>Execution against salary — appeal.</p> <p>Where a judgment creditor after having appealed. from an order vacating an execution against a salary issued under section 1391 of the Code of Civil Procedure obtains a second order allowing such execution which remains in force, his prior appeal should be dismissed.</p> <p>Motion by the defendant, Michael J. Kelly, to dismiss an appeal from an order of the Supreme Court, entered in the office of the clerk of the county of Mew York on the 28tli day of May, 1909.</p>

<p>Appeal by the relators, Adrian H. Joline and another, as receivers, 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 14th day of July, 1909, denying the relators’ motion to compel the respondents to correct their return to a writ of certiorari granted by said court, by striking certain parts therefrom.</p>

Appeal by the plaintiff, Christopher C. Smith, from an order of the Supreme Court, made at the- Kings County Special Term and entered in the office of the cleric of the county of Kings on the 3d day of ¡¡May, 1909, granting the defendants’ motion for a bill of particulars as to the details of the alleged special damages in an action for malicious prosecution.

<p>Judgment — opening default — practice — motion at Special Term — default in divorce actions.</p> <p>The Special Term has power to make an order opening a default taken at Trial Term. The remedy is not limited to an appeal from the order of the Trial Term.</p> <p>The default of a defendant wife in an action for divorce will be opened where on three prior trials the jury disagreed and the defendant at the time of the default was ill and without funds to prosecute the case.</p> <p>A default, in the strict sense of the word, cannot be made in an action for divorce, for the court is vigilant to prevent a divorce by collusion.</p>

<p>Appeal by the plaintiff, Aimee Hempsted, 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 8th day of May, 1909, staying proceedings until the payment of costs in a former action.</p>

Appeal by the defendant, Solomon Bonewur, 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 25th day of January, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Frank Heiferman, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendants, rendered on the,24th day of October, 1908, dismissing the plaintiff’s complaint, with costs.</p>

<p>Appeal by the defendants, Andrew B. Buchanan 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 26th day of February, 1908, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the same day, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Kiri Fazzolari, 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 7th day of January, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Contempt — violation of injunction toy third persons.</p> <p>Although an injunction has issued restraining a certain person, his representatives, assigns and agents, from imitating a certain trade label, other persons not served with a certified copy of the decree and not shown to be acting for or with the defendant cannot be punished for contempt for using a similar label.</p>

<p>Appeal—power of Appellate Division, to reinstate judgment.</p> <p>A motion'for a new trial on the ground that the verdict is against the weight of • the evidence, or contrary to law, is addressed not only to the discretion of the trial court but to the discretion of the Appellate Division.</p> <p>Where a new trial has been improperly granted by the trial court, the Appellate Division may reinstate the judgment.</p>

Appeal by the plaintiff, William 0. Bodger, 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 10th day of March, 1909, upon the dismissal of the complaint by direction of the court on a trial at the Kings County Special Term.

<p>Court — Municipal Court — jurisdiction of action to foreclose meckanie’s lien.</p> <p>The Municipal Court of the city of New York has jurisdiction of an action to foreclose a mechanic’s lien brought under section 3404 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, Isidor Greenberg, from a judgment of the Court of Special Sessions of the second division of the city of New York, rendered on the 27th day of Hay, 1909.</p>

Cebtiobabi issued out of the Supreme Court and attested on the 17th day of November, 1906, directed to Theodore A. Bingham, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in removing the relator from the police department of the city of New York.

Appeal by the plaintiff, Abraham Levine, from a judgment of the Hunicipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 7th day of June, 1909.

Appeal by the plaintiffs, Mary E. Beckwith and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 1st day of March, 1909, upon the decision of the court dismissing the complaint upon the pleadings on a tidal at the Kings County Special Term.

<p>Master and servant — negligence — injury by displacement of bar guarding doorway —facts not justifying recovery.</p> <p>Action against a master to recover for personal inj uries. The plaintiff, employed in a gas manufactory, when going to an open door for fresh air placed his hands upon an iron bar which rested in two sockets, being designed as a protecting barrier. The bar slipped from its place and the plaintiff was precipitated to the street below. The bar and sockets were found to be unbroken. Evidence examined, and held, insufficient to support a verdict for the plaintiff.</p> <p>A master is not bound to provide appliances which make accidents impossible; it is enough if he exercise reasonable care in that regard.</p> <p>When an appliance has been in use for a long period and has proved safe and adequate for the purpose intended, negligence cannot be predicated upon a continued use.</p> <p>Woodward and Miller, JJ., dissented.</p>

<p>Appeal by the defendants, Henry B. Haigh and another, 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 21st day of August, 1909, denying the defendants’ motion to vacate an order directing them to appear for an examination before trial.</p>

<p>Debtor and creditor — fraudulent conveyances—facts showing fraud — circumstantial evidence — transfer to relative — antecedent debt as consideration—knowledge of assignee.</p> <p>A voluntary transfer without consideration by one indebted is a fact from which an intent to defraud creditors may be inferred.</p> <p>While fraud must be proved and is never presumed, it may be shown by circumstantial evidence.</p> <p>Transfers by an insolvent to members of his family are scrutinized with the utmost care.</p> <p>Mere proof that a transfer of property was made to secure an antecedent debt does not, as a matter of law, disprove the fraudulent intent of the debtor.</p> <p>A continued use of property transferred by an insolvent debtor is a badge of fraud.</p> <p>Where fraudulent intent on the part of the assignor is proved and the assignee did not part with a valuable consideration, the burden is upon him to show his innocence in the transaction.</p> <p>Evidence in a suit to set aside the transfer of stock as in fraud of creditors examined, and held, to establish fraud on the part of the assignor and assignee.</p>

<p>Appeal by the defendant, William F. Sullivan, from a judgment of the Municipal Court of the city of New York in favor of the plaintiffs, rendered on the 4th day of June, 1909.</p>

Afpeal by the defendant, Max Sparago, from a judgment of the Municipal Court of the city of New York, entered upon the verdict of a jury, and also from an order denying the defendant’s motion to set aside the verdict.

<p>Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 21st day of December, 1908, granting the plaintiff’s motion for a new tidal.</p>

<p>Appeal by the defendants, J. Van V. Olcott and others, as receivers, etc., 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 24th day of December, 1908, upon the verdict of a jury for $25,000, as amended, and also from an order entered in said clerk’s office on the 29th day of December, 1908, denying the defendants’ motion for a new trial.</p> <p>The action was for negligence by a servant against his master.</p> <p>The plaintiff, an experienced ironworker', was employed in a gang of six men in charge of one Fiske, lifting iron columns with a derrick from the street to the fourteenth story of a building in process of erection, and placing them on skids. The columns weighed from four to seven tons each. They were lifted two at a time, and were placed as they came one on top of the other, near the foot of the derrick mast. While the plaintiff was unfastening the lugs from columns which had been placed on the skid, as he was directed to do by Fiske, the top column fell upon him, causing the injuries complained of. The plaintiff’s theory is that the boom line broke, allowing the boom to swing, and that the butt of it hit the column and knocked it over. The defendants’ theory is that the boom could not have hit the column, that the boom line did not break, .and that the column fell over from some unexplained cause. The plaintiff’s evidence is that the boom line was ah old, worn, three-quarter inch rope, which had already broken three times, and had been spliced or tied by the direction of Fiske; that it was customary to use an inch and a quarter boom line on such a derrick; that the three-quarter inch line was insufficient, especially at a height of fourteen stories, where the wind pressure increases the train, and that there was no inch and a quarter rope on the jobs which could have been used. The evidence tends to show that the derrick was not plumb, wherefore the boom had a tendency to ride or crowd to one side. It was provided with a boom stick which, if rigged with lines and falls, could have been used to control it. The evidence tends to show that the boom stick was split, that it had been out of use for a week prior to the accident that it was not rigged with lines and falls, and that the boom was controlled solely by the boom line before mentioned. Fiske directed the men where and how to place the columns. There was a general</p> <p>superintendent, one Craig, in charge of the work. The workmen were divided into gangs of a few men in each, under the immediate charge of a foreman, or, as he was called, a “ pusher.” Fiske was the foreman or pusher. His duty, as described by Craig, was to get the work done “ as fast and in as proper a way as possible.” In the absence of Craig he had the direction of the derrick and of the men, and if the men needed help he assisted with his hands, if he saw fit to do- so. Craig was not present at the time of the accident.</p> <p>The plaintiff’s wife testified that on September eighteenth, by the plaintiff’s direction, she wrote and mailed to the defendants the following letter:</p> <p>“Hew Yobk, Sept. 8, 1907.</p> <p>“ Millikeu Bbos. or Reoeivebs oe Millikeh Bbos. :</p> <p>“ Deab Sibs.— I wish to inform you that my husband, Thomas F- Hurley, was sent to the Presbyterian Hospital yesterday with an ununited fracture of the left femur.</p> <p>“On the 9th of July 4:35 p. m. while under your employ on the new Singer Bld’g two steel columns were placed in a careless position on the temporary bridge two feet above the 14th floor, 17th tier.</p> <p>“ These columns were placed one on top of the other, the top one rolled or was pushed off onto his leg and broke the leg four inches above the knee. Yotirs very truly,</p> <p>“ 221 East 45 th St., WERE A HURLEY.</p> <p>“H. Y. City.”</p> <p>Subsequently the plaintiff’s wife testified that she had made a mis take in copying the letter, dating it the 8th, instead of the. 18th of September, 1907.</p> <p>The defendants’. evidence tended to show that that letter was never received by it. The court charged the jury, inter alla, as follows: “You have been told, again and again, that when a man assumes the risk of his work he assumes it believing and relying upon the fact that the master will do his duty, that the master will not be careless, because when a man assumes the risk of a dangerous thing he does not assume in addition to that the carelessness of his employer. It is only after the master has done his duty that the man assumes the risk. If you find this was one of the ordinary risks of the work to which the master’s negligence did not contribute. then the master is not liable.” At the close of the charge the defendants’ counsel took an exception in the following words: “ I except to your Honor’s charge as to the assumption of risk. Tour Honor says that the plaintiff does not assume any risk, except where the defendants have already done their duty. I think the plaintiff must assume the risk where the defendant is negligent as well,” to which the court replied, “ If the risks are manifest when he goes to work.”</p> <p>At the time of the accident the plaintiff was twenty-seven years of age. He earned fifty-six and one,-quarter cents an hour, and from thirty dollars to fifty dollars a week. He sustained a fracture of the left femur. It united only by a fibrous union, thus forming a false joint, permitting only a limited and unnatural motion of the leg, and creating a condition which will grow progressively worse, probably necessitating amputation. The court submitted to the jury the question whether the master was negligent for not furnishing a different rope for the boom line and whether Fiske was a superintendent, and, if so, was negligent in directing the columns to be placed one above the other near the base of the mast. The jury rendered a verdict of $25,000.</p>

<p>Appeal by the defendant, John H. Springer, 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 2oth day of March, 1909, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 28th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Francis Jones, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Queens on the 29th day of June, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.

Appeal by the defendants, Talbot J. Taylor 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 27th day of May, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1908, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Stephen Y. White, 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 5th day of May, 1909.

Appeal by the plaintiff, Pierson E. Sanford, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 4th day of January, 1909, upon the verdict of a jury for $236.38 rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of January, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the United States Gas Fixture Company of the Oity of Mew York, 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 9th day of July, 1909, adjudging the said defendant guilty of contempt of court for willfully disobeying two orders ; one, an order in supplementary proceedings instituted by Meyer Shapiro as judgment creditor against the defendant Smith & Spector…

Appeal by the plaintiff, Sarah J. Trieber, as executrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 23d 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 Queens County Trial Term, and also from an order entered in said clerk’s office on the 26th day of January, 1909, directing the dismissal of…

Appeal by the plaintiff, Ludlow W. Valentine, 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 21st day of June, 1909.

Cross-appeals by the plaintiff, James McNamee, and the defendant, The Borough Development Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 15th day of April, 1909, in favor of the plaintiff and against the defendant The Borough Development Company.

Appeal by the defendant, Albert E. Tower, 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 28tli day of December, 1908, upon the decision of the court rendered after a trial at the Westchester Special Term in an action for a separation.

Appeal by the defendant, the Hew York Tunnel 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 May, 1908, upon the verdict of a jury for $35,000, and also from an order entered in said clerk’s office on the 22d day of May, 1908, as amended, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Charles E. Larson, 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 28th day of May, 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 Kings County Trial Term.</p>

Appeal by the plaintiff, the National Fertilizer Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, rendered on the 31st day of March, 1909.

Appeal by the defendant, the Supreme Council, Catholic Benevolent Legion, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of February, 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 10th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William H. J. Bodine, 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 Richmond on the 7th day of July, 1909, upon the decision of the court, rendered after a trial at the Richmond Special Term, sustaining the said defendants’ demurrer to the amended complaint.

Appeal by the plaintiffs, Charles Mead and another, 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 6th day of November, 1908, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendants, Sarah Ann Rhodes and others, from a judgment of the Supreme Oonrt in favor of the plaintiff and the defendant Phillips, entered in the office of the clerk of the county of Kings on the 4th day of May, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Rudolph Christensen, 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 21st day of May, 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 Kings County Trial Term.

Appeal by the defendant, The Hygienic Ice and Refrigerating Company, 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 16th day of April, 1909, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion fora new trial made upon the minutes.

Appeal by the plaintiffs,, Alfred A. Moore and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 24th day of July, 1907, upon the report of a referee.

Appeal by the plaintiff, Emily Knapp, from an order of the County Court of Broome county, entered in the office of the clerk of said county on the 18th day of March, 1909, setting aside the verdict of a jury in favor of the plaintiff for $378.33 and granting a new trial unless she should stipulate to reduce the verdict to fifty dollars.

Appeal by the plaintiff, Hiram S. Johnson, as executor, etc., from a judgment of the Supreme Court in favor of the defendant Rufus H. Woodworth, entered in the office of the clerk of the county of Columbia on the 15th day of July, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Columbia Trial Term, and also from an order entered in said clerk’s office on the 13th day of July, 1908, denying the…

Appeal by the defendants, William B. Dillenbeok 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 Fulton on the 6th day of March, 1909, upon the decision of the court rendered after a trial at the Fulton Special Term. Action for partition.

<p>Appeal by the plaintiff, the Cameron-Hawn Realty Company, 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 27tli day of February, 1909, upon the report of a referee.</p>

Appeal by the defendant, Elizabeth C. Belcher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 9th day of November, 1908, upon the decision of the court rendered after a trial at the Broome Trial Term, the jury having been dismissed.

Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Broome Trial Term and entered in the office of the clerk of the county of Broome on the 28th day of October, 1908, setting aside the verdict of a jury in favor of the defendant and granting the plaintiff’s motion for anew trial.

Appeal by the defendant, Peter J. Gallan, from an order, made by the Albany county judge on the 14th day of July, 1909, and entered in the office of the clerk of the county of Albany, denying a motion to vacate an order for the examination of the defendant Wallerstein before trial. The action was brought to recover the value of services rendered and material furnished by the plaintiff, as an architect.

Appeal by the defendant, Elizabeth Elliott, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 14tli day of January, 1909, upon the decision of the court rendered after a trial at the Clinton Special Term, except that part thereof which decrees said defendant to be the owner of two-thirds of the premises in question.

Appeal by the plaintiff, Hosea H. Rockwell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 20th day of April, 1909, upon the decision of the court rendered after a trial at the Chemung Special Term dismissing the complaint upon the merits.

Certiorari issued out of the Supreme Court and attested on the 13th day of February, 1909, directed to Charles H. Gaus, Comptroller of the State of New York, directing him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in regard to determining the franchise tax to be paid by the relator for the years 1907 and 1908.

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendant, ■ entered in the office of the clerk of the county of Fulton on the 24tli 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 Fulton Trial Term.

Appeal by the plaintiffs, Peter F. Zimmer and another, from a judgment of the County Court of Schoharie county in favor of the defendant, entered in the office of the clerk of said county on the 7th day of June, 1909, pursuant to an order of said County Court bearing date the 17th day of May, 1909, and entered in said clerk’s office, reversing a judgment in favor of the plaintiffs theretofore rendered by a justice of the peace of the town of Schoharie.

Appeal by the defendant, George Madden, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 1st day of May, 1909, denying his motion to vacate an order theretofore made and entered herein without notice, striking out the defendant’s answer.

Appeal by the plaintiff, Lucy E. Thompson, from a judgment of the Supreme Court in favor of the defendant, James Thompson, individually, entered in the office of the clerk of the county of Rensselaer on the 23d day of November, 1908, upon the decision of the court, rendered after a trial at the Albany Special Term, dismissing the complaint upon the merits as to said defendant; also from a judgment in favor of the other defendants entered in said clerk’s office at the same…

Appeal by the defendant, the United Traction Company, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of said county on the 20th day of Hay, 1909, upon the decision of the court rendered after a trial before the court without a jury for $850, with interest, penalty for the violation of a city ordinance.

Appeal by the plaintiff, Emma Arnold, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Fulton on the 23d day of August, 1909, denying the plaintiff’s motion to strike out an alleged counterclaim in defendants’ amended answer.

Appeal by the defendant, Russell S. Cole, from a judgment of the County Court of Chemung county in favor of the plaintiff, rendered on the 30th day of September, 1908, convicting the defendant of the crime of rape in the second degree, and also from an order made on the 5th day of October, 1908, denying the defendant’s motion for a new trial.

Certiorari issued out of the Supreme Court and attested on the 23d day of February, 1909, directed to John H. McCarthy and others, constituting the Bepublican members of the board of supervisors of the county of St. Lawrence and State of New York, and others, commanding them to certify and return to the office of the clerk of the county of St. Lawrence all and singular their proceedings had in regard to the designation of a newspaper to publish the Session Laws and…

Appeal by tlie relators, The Delaware, Lackawanna and Western Railroad Company and another, from a final order of the Supreme Court, made at the Ulster Special Term and entered in the office of .the clerk of the county of Albany on the 13th day of April, 1909.

Appeal by the defendants, Rodney Van Wormer and another, as executors,' etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 18th day of May, 1909, upon the decision of the court rendered after a trial before the court without a jury at the Washington Trial Term. The action is one for partition.

Appeal by the defendant, Eugene D. Stocker, 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 Otsego on the 9th day of August, 1909, appointing a referee to hear and determine the issues herein.

Appeal by the Otsego and Herkimer Railroad Company, the assignee of the purchaser upon the resale of the mortgaged property herein, 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 Otsego on the 16th day of August, 1909.

<p>Statute of Frauds — oral agreement to purchase lands and convey to another in consideration of improvements made thereon—recovery on implied contract—pleading — forms of action abolished — contract — breach by promisor — when further performance by promisee unnecessary — offset — nonsuit.</p> <p>Although an oral agreement whereby the defendant agreed to purchase certain real estate and convey the same to the plaintiff’s wife in consideration of repairs to be made on the property by the plaintiff, etc., is void and unenforcible by the beneficiary in that it is not in writing, the promisee having actually repaired the premises after their purchase by the promisor can recover the value thereof on an implied contract to repay. Such implied promise to repay is raised, for the court will not allow the Statute of Frauds to be made an instrument of fraud.</p> <p>Since the abolition of the various forms of action by the Code, a plaintiff may simply state the facts upon which he relies and is entitled to the relief those facts authorize. His complaint cannot be challenged because it is not in any particular form.</p> <p>Thus, the complaint aforesaid cannot be challenged on the ground that it is not upon common counts, as was formerly required.</p> <p>Where the defendant absolutely refused to perform the paroi agreement without basing the refusal upon a failure of the plaintiff to pay certain taxes as agreed, the plaintiff was not bound to tender further performance but could sue for the money already expended.</p> <p>It seems, that the fair rental value of the premises while occupied by the plaintiff should be offset against his claim.</p> <p>Where the plaintiff’s failure to prove the fair rental value of the premises was not faised on the motion for a nonsuit, such failure of proof was not ground for a dismissal of the complaint.</p>

Appeal by the defendant, the Erie Eailroad Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Saratoga on the 23d day of March, 1909, denying the defendant’s motion to change the place of trial.

<p>Appeal by the defendant, Julia O. B. Nichols, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 24th day of August, 1908, upon the decision of the court rendered after a trial at the Delaware Trial Term before the court without a jury.</p>

Appeal by the defendant, Jesse M. Nichols, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 24th day of August, 1908, upon the decision of the court rendered after a trial at the Delaware Trial Term before the court without a jury.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 17th day of February, 1909, allowing the defendant’s demurrer to an indictment.

Appeal by the defendant, the Lackawanna Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 12th day of April, 1909, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 15 th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal — presumption as. to conflicting evidence —■ former decision — master and servant — negligence — injury by fall of casting — instructions as to obvious facts — act of fellow-servant.</p> <p>"Where on an appeal by the defendant from a verdict for the plaintiff there is a conflict of evidence it should he deemed settled most favorably to the plaintiff, and he is entitled to the benefit of any inferences which may be legitimately drawn therefrom.</p> <p>A former affirmance of a discretionary order made pursuant to section 999 of the Code of Civil Procedure setting aside a nonsuit and granting a new trial, but not stating the grounds upon which it was made, cannot he regarded as a decision by the Appellate Division that the plaintiff had established a prima, facie cause of action on the merits.</p> <p>One performing acts of superintendence is not obliged to give instructions where the minutest instructions, if given, would merely call attention to a perfectly obvious fact.</p> <p>A master is not negligent in requiring his employees to move a casting weighing 1,300 pounds from a flat car to an elevator by hand if he furnishes a sufficient number of men for that purpose, although it might have been safer if it had been moved by a crane.</p> <p>A master is not required to adopt the safest and best known methods of performing his work, hut only such as are reasonably safe and such as would be adopted by a person of ordinary care and prudence.</p> <p>A master is not liable for injuries received by a servant who was assisting in the removal of a heavy iron casting from a car, caused by the fact that one of his fellow-servants, of which a sufficient number were employed, let go of the casting so that it fell.</p> <p>Kruse and Spring, JJ., dissented, with memorandum.</p>

Appeal by the defendant, the International Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 15th day of April, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Arthur Swavzcnbach 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 Oneida on the 26th day' of March, 1909, upon the decision of the court rendered after a trial at the Oneida Trial Term, a jury having been waived.

Appeal by the defendants, Alonzo L-. Roberts and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 15th day of January, 1909, upon the decision of the court, rendered after a trial at the Jefferson Trial Term, a jury having been waived.

Appeal by the plaintiff, Thad. Collins, Jr., from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 19th day of June, 1907, upon the decision of the court, rendered after a trial at the Wayne Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Erastus D. Potter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 30th 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 Herkimer Trial Term, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 12th day of January, 1909, denying the…

Appeal by the defendant, George A. Bagley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 3d day of February, 1909, upon the decision of the court rendered after a trial at the Jefferson Trial Term, a jury having been waived.

Appeal by the defendant, Charles A. Pooley, individually, from an order-of the County Court of Erie county, entered in the office of the clerk of said county on the 3d day of June, 1908, denying the said defendant’s motion to set aside a sale in foreclosure. The action is in County Court for the foreclosure of a mortgage given by one Thomas and the defendant Pooley collateral to a bond executed by said mortgagors.

Appeal by the defendant, Clarence R. Tryon, from a judgment of the County Court of Oswego county in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 29th day of December, 1908, affirming a judgment of the Justice’s Court of the town of Richland.

Appeal by the defendant, Richard J. Murty, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Oneida on the 7th day of June, 1909, by direction of the court, certain questions of'fact having been submitted to the jury, and also from an order entered in said clerk’s office on the 14th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Village of Fayetteville, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 10th day of May, 1909.

<p>Indemnity — ambiguous contract — when intention of parties question of fact — corporation — ultra vires — insurance in excess of statutory limit — right to reinsure.</p> <p>In an action against a guarantor for breach of an agreement to furnish a bond under an agreement providing that the insured was to pay in cash for each bond executed " a premium charge at the rate of fifteen cents per one hundred dollars (based on amount of contract) for each bond guaranteeing the terms of any given contract,” the question as to whether the rate was to be fifteen cents per hundred dollars per annum, or fifteen cents per hundred dollars for the full term of insurance, is one of fact to be determined by the court where both parties move for the direction of a verdict.</p> <p>So, too, the question as to whether there had been a mutual mistake is one of fact.</p> <p>Although section 24 of the Insurance Law provides that such guarantor shall not take any one risk to an amount exceeding ten per cent of its capital and surplus, the statute also provides that such part of the risk as is reinsured shall not be included in determining the limitation. Hence a surety cannot claim that a risk beyond that limit was ultra vires as it could have reinsured the unauthorized excess.</p>

<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 23d day of February, 1909, upon the verdict of a jury for $994.43, 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, Abiel Bowen, from parts of a judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Orleans on the 10th day of August, 1908, upon the report of a referee; also from parts of the amended judgment entered in said clerk’s office on the 13th day of October, 1908, and also from an order entered in said clerk’s office on the same day, vacating the certificate of the referee that the title to…

<p>Negligence — injury by explosion of illuminating gas — facts justifying recovery — evidence — res gestee — admissions before accident — admissions after accident — evidence contradicting witness and affecting credibility— trial— court may treat request as a whole —damages not excessive.</p> <p>Action to recover damages for personal injuries caused by the explosion of natural gas which escaped from an uncapped pipe. Evidence examined, and held, that a verdict for the plaintiff based on a finding that an employee of the defendant gas company had removed the cap and negligently failed to replace it was justified.</p> <p>Where a witness for the defendant, charged with having failed to replace the cap, denied on cross-examination that he stated that he intended to test the gas pipe although assured that it had been previously tested, the plaintiff may show as part of the res gestm, as direct affirmative evidence and as affecting the witness’ credibility, that he did make such statement prior to the explosion. But where on cross-examination he denied that offer the explosion he admitted that he had made a test of the gas pipe, such admission can be proved only to contradict him and to affect his credibility, but not as part of the res gestm.</p> <p>The court may treat a request to charge as a whole, and if part thereof is unwarranted, may refuse to charge without separating the good parts from the bad. Where the plaintiff, a woman, was frightfully and permanently injured and disfigured by the explosion of gas, a verdict of §16,000 is not excessive.</p> <p>Williams, J., dissented.</p>

<p>Corporation—voluntary dissolution—power of court to vacate order of dissolution—motion and order—parties entitled to notice —facts justifying setting aside order of dissolution.</p> <p>The Supreme Court in its inherent power to set aside and vacate its orders and judgments may set aside an order for the voluntary dissolution of a corporation where substantial justice will be subserved.</p> <p>The court is not precluded from vacating such order on the theory that the corporation became forever legally dead on the entry of the order.</p> <p>It is not necessary that the order in voluntary dissolution proceedings he tainted with fraud or irregularity in order to authorize the court to set it aside; it is sufficient that it was improvidently granted.</p> <p>An order to show cause why an order for the voluntary dissolution of a corporation should not be vacated need not he served on all the stockholders and creditors of the corporation, where the Attorney-General and the receiver of the corporation and the only stockholder who appeared in the original dissolution proceedings are before the court, and the directors, other than the moving party, have ceased to have any interest as stockholders and the creditors are duly protected by a bond given by the moving party.</p> <p>Stockholders who did not appear in the dissolution proceedings are not necessarily parties to a motion to vacate an order of dissolution.</p> <p>Evidence examined, and held, that the corporation was a going, solvent concern, and that an order for its voluntary dissolution had been improvidently granted.</p>

Separate appeals by the plaintiff, Charles P. Edinger, and the defendant, Thomas McAvoy, from a judgment of the Supreme Court in favor of the defendant Ellen McAvoy, entered in the office of the clerk of the county of Onondaga on the 3d day of April, 1907, upon the decision of the court rendered after a trial at the Onondaga Special Term, the plaintiff appealing from the whole of said judgment and the defendant Thomas McAvoy from certain parts thereof.

Appeal by the defendant, Mark Rafalsky, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of January, 1909, upon the verdict of a jury, 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>Bailroad—duty to fence tracks — fence between roadbeds of adjoining railroads not necessary — negligence — injury to animal straying upon tracks.</p> <p>Where two railroads run side by side and each has properly fenced its exterior .boundary so that cattle are prevented from going upon the track of either road, there is a sufficient compliance with section 32 of the Railroad Law.</p> <p>Where a horse passing through a gate in the fence maintained by one of said railroads crosses its tracks and is killed by a train on the tracks of thq other road, there is no liability under said statute by reason of the fact that there was not a third fence separating the roadbeds of the two railroads.</p> <p>Where, in an action to recover the value of an animal so killed, there is no proof that the defendant was responsible for the fact that a gate became open so as to allow the animal to come upon the tracks, there can be no recovery on the ground of negligence.</p> <p>Spring, J., dissented.</p>

<p>Appeal by the defendants, William J. Thistlethwaite 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 Herkimer on the 21st day of April, 1908, upon the report of a referee.</p>

Appeal by the defendant, J. Herbert Carpenter, 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 upon the decision of the court rendered after a trial at the Mew York Special Term.

Appeal by the defendant, Mary C. Bartow, as administratrix, etc., and individually, from part of a judgment of the Supreme Court in favor of the defendant Irene H. Burr, entered in the office of the clerk of the county of Hew York on the 22d day of July, 1909, upon the report of a referee.

Appeal by the defendants, The Tenement House Department of the City of Hew York 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 lltli day of May, 1908, upon the report of a referee.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York dismissing the complaint.</p>

<p>Appeal by the defendant from an interlocutory judgment in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of January, 1909.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in thé clerk’s office of Orange county on October 33, 1908; also from an order entered in said office on November 38, 1908, denying its motion for a new trial, and also from an order entered in said office on December 81,1908, granting the plaintiff’s motion for an extra allowance.

Appeal by the defendants from a judgment of the Supreme Court in favor of the plaintiff, entered in the clerk’s office of Westchester county on December. 8, 1908, upon the verdict of a jury, and also from an order denying a motion for a new trial in an action brought to recover damages resulting from the death of plaintiff’s intestate, due, as alleged, to the negligence of the defendants, his masters.

Certiorari dated the 31st day of December, 1907, to review a determination of the board of fire commissioners of the city of Yonkers removing the relator as a captain of the fire department.

Certiorari, attested on the 29th day of February, 1908, to review the action of the defendant in dismissing the relator from his position as a patrolman on the police force of the city of New York.

Appeal by the defendant 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 13th day of January, 1909, and also from an order denying its motion for a new trial entered in said office on the 16th day of January, 1909.

<p>Election Law — nomination by petition.</p>

<p>Appeal from an order of the Special Term, entered in the office of the clerk of the county of New York on the 23d day "of June, 1909, denying a motion to vacate an order for the examination of certain officers, servants and agent of the defendant to enable plaintiff to frame a complaint.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 3d day of May, 1909, directing the defendant to give to the plaintiff a bill of particulars of facts alleged in a counterclaim.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 26th day of April, 1909, after trial at Special Term.</p>

<p>Appeal from part of an order entered in the New York county clerk’s office on the 19th day of August, 1909, directing the issuance of commissions.</p>

<p>‘ Appeal from an order entered in the New York county clerk’s office on the 5th day of August, 1909, striking out the words “As Underwriters doing business under the name or style ‘ New York and New England' Underwriters at Lloyds of New York City,’ ” from the judgment herein.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 26th day of July, 1909, denying a motion to dismiss the complaint for lack of prosecution.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 13th day of July, 1909, denying a petition for the revocation of a liquor tax certificate.</p>

<p>Appeal by the defendant, Abraham I. Spiro, from a judgment of the Supreme Court, entered in the clerk’s office of the county of New York on the 3d day of March, 1909, upon the decision of the court without a jury.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 1st da)- of October, 1909, denying a motion to vacate an order for the examination of plaintiff before trial.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 12th day of May, 1909.</p>

<p>Pleading — contract —fraud—joinder of actions.</p>

<p>New York city —police — removal—absence from post.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 21st day of April, 1909, dismissing the complaint.

<p> Bale —pleading —frivolous answer. </p>

<p>Real property — deed — constmction — when acreage does not govern.</p>

<p>Certiorari to review the determination of the Comptroller in stating a franchise tax against the relator.</p>

<p>Railroad — negligence — evidence — expenditures of decedent as showing damage.</p>