Volume 135 — New York Appellate Division Reports

Appeal'by the defendants, Edward bT. Tailef, individually, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the covinty of New York on the 27 th day of April, 1909, upon the verdict of a jury, . and also from an order entered in said clerk’s office on the 26th day of April, 1909, denying the motion of the defendants individually for a new .trial made upon the minutes.

Appeal by Edith M. Barker-Ransom and others from an order and decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 3d day of July, 1909, appointing an additional trustee of the estate of George Bell, deceased.

<p>Execution against salary — statute retroactive.</p> <p>The amendment to section 1391 of the Code of Civil Procedure permitting an execution against the salary of a j udgment debtor is retroactive, so that the execution can be issued on a prior j udgment. .</p> <p>Appeal by the plaintiff, Dayton Hedges, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New-York on the 16th day of August, 1909, granting the defendant’s motion to vacate a writ of execution theretofore issued herein.</p>

<p>Appeal by the defendants, 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 7th day of June, 1909, removing' William Heiter, as.guardian ad litem of Emily Heiter, and also removing her attorney, and substituting others in their places, canceling a consent to an order of discontinuance, enjoining defendants from using the same and restoring the case to the calendar for trial.</p>

<p>Appeal by the petitioners, Wendell P. Barker and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of October, 1909, denying the petitioners’ motion for a' peremptory writ of mandamus.</p>

<p>Municipal corporations — civil service — abolition of position in fire department — exempt fireman entitled to bearing — mandamus — proof necessary for reinstatement.</p> <p>The act of the fire commissioner of the city of New York in abolishing a position held by an exempt volunteer fireman does not discharge him absolutely, hut by virtue of section 1543 of the charter suspends the incumbent without pay for one year within which time he remains eligible, according to his original . ranking upon the civil service list, for appointment to a similar position.</p> <p>Where the incumbent protested against the abolition of his office lie may maintain'mandamus to compel reinstatement, or appointment to a similar position, upon the ground that as an exempt volunteer fireman he could not be removed without a hearing.</p> <p>Moreover, no protest was necessary, where the proceeding is based on an allegation that the position was abolished by the commissioner in bad faith and for the purpose of removing the incumbent.</p> <p>An exempt volunteer fireman cannot he removed from the fire department except upon a hearing. While the fire commissioner can abolish a particular office, he cannot do so solely for the purpose of removing the incumbent without a hearing.</p> <p>It is immaterial that the fire'commissioner in abolishing an office desired to discharge the incumbent, if the office was not necessary to the department, or if the work could he conducted more economically by dividing it among other employees.</p> <p>Evidence examined, and held, that the relator was not an exempt volunteer fire- ■ man, but became a member of a hose company solely to claim exemption.</p>

<p>Bank — discount of note procured by false representations — right of bank to rescind and offset — appeal^- correction of judgment.</p> <p>Where a depositor in' a bank procures the discount of a note and the deposit ef the. proceeds to'his credit by false representations that he and the maker are solvent, the bank upon discovering the fraud may cancel the credit giv.en, which act relates back to the time of the original transaction.</p> <p>Hence, where the credit was rescinded and charged against the depositor’s account his administratrix can recover from the bank only the balancé due. Where the bank by answer' admitted liability for such palance, but the court instead of directing a verdict for that amount permitted the jury to render a verdict of no cause of action, the. appellate court, on the consent of the defendant, will direct a judgment in the plaintiff’s favor for the proper amount, with out costs.</p>

Appeal by the plaintiff, Leo J% Kreshover, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of April, 1909, affirming a judgznent of the City Court of the city of New York, entered in the office of the clerk of said court on the 31st day of December, 1908, in favor of the ■ defendants, and an order of said City Court denying the plaintiff’s motion for a new trial, and also (as stated in said…

Appeal by the defendant, The Tribune Association, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the .county, of Hew York on the 19th day of July, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint.

<p>Appeal by the plaintiff, the Commonwealth Mortgage Company, landlord, from an order of the Appellate Term of the Supreme Court, bearing date the 8th day of April, 1909, and entered in the office of the clerk of the county of New York reversing a final - order of the Municipal Court of the city of New York rendered on the 14th day of January, 1909, and dismissing the proceedings.</p>

Appeal by the plaintiff, the Commonwealth Mortgage Company, landlord, from an order of the Appellate Term of the Supreme Court, bearing date the 8th day of April, 1909, and entered in the office of the clerk of the county of Hew York affirming a final' order of the Municipal Court of the city of Hew York rendered on the 14th day of January, 1909, which dismissed the petition of the landlord in summary proceedings.

Appeal by tlie defendants, The Nassau- Electric Railroad Company. and- another, from an order of the Appellate Term of the Supreme Court, entered in the office of .the clerk of the county of New York on the 10th day of June, 1909, reversing, a judgment of the Municipal Court of the city of New York in favor of the defendants, entered in the office of the clerk of said court on the 15th day of December, 1908.

<p>Unincorporated associations — liability of members for debts contracted by committee — facts not showing ratification. .</p> <p>In order to hold the members of an unincorporated voluntary organization for money loaned on the request of its committee, the plaintiff must show that all the members are liable either generally or severally for the debt. An indi-' vidual liability of members for debts contracted by the officers or committee of such organization depends upon the principles of agency. Authority to create such liability will not be implied from the existence of a general power to transact business and promote the object's of the. association, except when the debt was necessary for its preservation.</p> <p>Where the committee borrowed money to be used for the benefit of certain newspapers which were organs of that political' organization, the debt cannot .be deemed necessary for the preservation of the organization.</p> <p>Although the debt so incurred was reported to and approved by the national convention, there was no ratification of.the debt so as to bind all the members, where the-national convention had no' authority t,o incur debts binding upon ■ the members of the party generally.</p> <p>Even if the convention ratified the loan, it was not equivalent to a. ratification by the party at large, when the matter was not. referred to the sections, for a general'vote.-</p> <p>Where the matter was not referred to the sections, it cannot be assumed that the party at large had any knowledge of the report made'tó the convention, and in .the absence of such knowledge silent acquiescence is not a ratification of the debt..</p>

<p>Appeal by the defendant, The State Bank, from an order of the Appellate Term df the Supreme Court-, entered in the office' of the clerk of the county of New York on- the 7th day of May, 1909, reversing a judgment of the Municipal Court of- the city .of New York in favor of the defendant rendered on ..the 4th day of December, 1908. ' -</p>

Appeal by The Greenwood Cémetery from an order of the Surrogated Court of the county of Hew York, entered in said Surrogated Court on the 5th day of May, 1909, amending an order of said-court fixing the transfer tax upon the estate of Ellen M. Maverick, deceased, so as to include a legacy to the appellant.

<p>Contempt—necessary adjudication — excessive fine — costs — refusal to pay rent to receiver.</p> <p>An order punishing a defendant for contempt is fatally defective if it do not contain an adjudication that the act of the defendant was calculated to or actually did defeat, impair, impede or prejudice the rights of remedies of the plaintiff as required by section 2281 of the Code of Civil Procedure.</p> <p>A fine of $300 for contempt of' court is unauthorized where the moving -papers merely show.a default in payment of $200.</p> <p>So, too, it is improper to include motion costs in the fine.</p> <p>It seems, that a receiver of "rents and profits appointed pending a suit of fore- . closure cannot resort to contempt proceedings to compel a tenant to pay rent ■ as required by an order, but should resort to the remedies available to the landlord whom he represents. Contempt proceedings are available, however, where a person claiming to be lessee of the entire premises collects rents from a sub-tenant in defiance of an order forbidding him to do so, for in such case he interferes with the possession of the court through its receiver. •</p>

<p>Beal property—deeds — delivery in escrow—acceptance — effect of recording deed — findings not inconsistent.</p> <p>A delivery-of a deed by a grantor to her agent,' with instructions not to deliver to the grantee until the grantor’s death, does not of itself transfer title, -hut title passes when, after the death of the grantor, the agent delivers the deed and the grantee accepts it. . „</p> <p>Where the agent, after the grantor’s death, records the deed with intent that it shall become operative, there, is a delivery to the grantee although made without her knowledge, and the title passes upon her acceptance, which, it seems, may be inferred from the recording.</p> <p>An acceptance by the grantee is indicated by an assertion and exercise of ownership after the recording of the deed.</p> <p>An intent to accept ihe deed so recorded is not negatived by the fact that the ■ grantee’s agent, at. her request, procured the appointment of a temporary administrator of the grantor’s estate, where there is nothing to indicate that she authorized him to reject the deed.</p> <p>Although for certain purposes a. deed delivered after the grantor’s death will be deemed to relate back, yet, at the time of the death and before delivery and acceptance, the title remains in the grantor. • Hence, a finding that the grantor at the time of her death owned lands in fee simple is not inconsistent with a finding that the title passed to the grantee by the subsequent delivery and acceptance of the deed.</p>

Appeal by the plaintiff, the New York Produce Exchange Bank, • 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 4th day of February, 1909, upon, the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of February, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Frank C. Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 13tli day of Fovemher, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of Fovember, 1908, denying the defendant’s motion for a new tidal made upon the minutes.</p>

Appeal by the plaintiff, Charles D. Thompson, as receiver, 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 4th day of October, 1909, vacating- an order for the examination of certain of the defendants before trial.

<p>Master and servant — negligence — injury on elevator — Employers’ Liability Act.— operator not superintendent — facts not justifying ' recovery.</p> <p>The operator of an elevator maintained for the benefit of employees is not a superintendent w ithin the Employers’ Liability Act.</p> <p>The plaintiff, an employee, while riding on such elevator with other persons had his foot crushed by reason of the fact .that it projected through the space ■ between the gate and the floor of the elevator so as to catch upon a metalbeam as the elevator-ascended. He claimed- that his master was negligent in that there was a space between the-floor of the elevator and the bottom of the gate, a,nd in that the elevator was permitted to become overcrowded-so that his foot was pushed through the opening by his fellow-passengers. Evidence examined, and held, insufficient to warrant a recovery.</p>

Appeal by the plaintiff, E. Porter Eraker, 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 12th day of March, • 1909, upon the dismissal of- the complaint by direction of. the court' after a trial at the HewYor.lt Trial Term, arid also from an order entered in said clerk’s office on the 23d day of March, 1909, denying the plaintiff’s motion for' a new ' trial made upon the minutes. -

<p>Crime — amendment of indictment — right of accused to be confronted with witnesses — constitutional law — Federal guarantee applicable to trials in Federal court only—similar rights conferred by New York statutes — evidence — certificates of clerks of foreign courts inadmissible in criminal prosecution.</p> <p>Where an indictment charging the defendant with false registration by a clerical error misstates the election district in which he registered, the court in the discretion conferred by section 293 of the Code of Criminal Procedure'may amend the indictment at trial so as to state the,proper district, if the defendant' is not prejudiced thereby.</p> <p>In such prosecution the People cannot prove that the defendant was never naturalized in a certain city of another State, as claimed by him,, by putting in evidence certificates of the clerks of the courts of that State authorized to naturalize aliens, stating that they had examined the records covering the period involved and failed to find any declaration of the defendant’s intention to become a citizen or any record of his naturalization. This, because he is deprived of his right to be confronted with the witnesses against him.</p> <p>Such certificates are not made competent by section 921 of the Code of Civil Procedure, which provides that where an officer having legal custody of papers certifies that he has made diligent search for such paper and cannot find it, the certificate is presumptive evidence of the fact so certified as if the officer had testified personally, even though section 392 of the Code of Criminal Procedure makes the rules of evidence in civil cases applicable to criminal cases except as otherwise provided.</p> <p>Quare, as to whether the Legislature intended to make the provisions of section 921 of the Code of Civil Procedure applicable to certificates made without the State. ■</p> <p>The sixth amendment of the Federal Constitution,' guaranteeing to a defendant in a criminal prosecution the right to be confronted with the witnesses against him, applies to prosecutions in the Federal courts only. i</p> <p>But the same right of a defendant in a criminal prosecution to be confronted with witnesses against him is' conferred by our Bill of Rights (Consol. Laws, chap. 6, § 12) and by section 8 of the Code of Criminal Procedure, with certain exceptions.</p> <p>Although one of the exceptions contained in section 8 of the Code of Criminal Procedure is where the testimony of a witness on the part of the People, who cannot be found in the State, has been taken according to the provisions of section 219 of that Code, yet no such commission may be had by the People to take testimony without the State, except where the commission is obtained by the defendant and the People join therein to support the indictment.</p> <p>Hence, as the People of their own motion could not have examined the clerks of a foreign court on a commission even if the defendant had been allowed to cross-examine them, certificates made by such clerks can have no greater weight than their testimony and are inadmissible as they infringe his right to be confronted with witnesses against him.</p>

Appeal by the defendant, Oliver M. Arlcenburgh, 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 24th day of June, 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 same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Albert "W. De Long, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 7th 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 Hew York Trial Term..</p>

Appeal by the plaintiff, George Streat, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, .entered in the office of the clerk of the county' of New York on the 12th day of March, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 16th day of. March, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, John O’Brien and another, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against them on the 18th day of February; 1908, convicting the defendants of robbery in the second degree, and ,also from an order denying the said defendants’ motion for a new trial.

Appeal by the relator, Henry W. Scott, 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 Héw York on the 15th day of June, 1908, denying the relator’s motion for a peremptory writ of- mandamus to compel the defendants to issue to him a license to practice osteopathy.

Separate appeals by Herman A., Metz, as comptroller of the city of New York, and by the Fitzgibbons Boiler Company, from an order of the Supreme Court, made.-at the New York Special Term and entered in the office of the c]erk of the county of New York on the 14tli day of July, 1909, denying a motion made by said boiler company to vacate an order theretofore entered herein discharging certain notices of the delivery of material under a conditional bill of sale.

Sepakate appeals by the plaintiffs, Whiner A. Baldwin and another, as surviving partners, etc., and by the defendant, Harry Feder, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 16th day of December, 1907, upon the report of a referee; also an appeal by the' plaintiffs from an order entered in said clerk’s office on the 23d day of July, 1907, granting the defendant an extra allowance.

<p>Appeal "by the plaintiffs, Richard F. Outcault 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 New York on the 30tli day of April, 1909, upon the decision of file court, rendered after a trial at the New York Special Term, dismissing the complaint.</p>

<p>Appeal by the defendant, Arthur W. Ware, from a judgment of the Supreme Court in favor of the plaintiff against the said defendant, entered in the office of the clerk of the county of Mew York on the 5th day of February, 1909, upon the verdict of a jury for $1,400, and also from an order entered in said clerk’s office on the same day denying the said defendant’s motion for a new trial made úpon the minutes.</p>

<p>Appeal by the petitioners, Louise L. Williams and others, as trustees, etc., from an order of the Surrogate’s Oourt of the county of Mew York, entered in said Surrogate’s Oourt on the 8th day of November, 1909.</p>

Appeal by the defendant, H. Bridgman 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 7th day of September, 1909.

Appeal by the defendant, Dorris Whipple, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the comity of. Hew York on the 7th day of September, 1909, denying the said defendant’s. motion for judgment upon the pleadings, on the ground that the complaint does not state facts sufficient to constitute a cause of action as against said defendant.

Appeal by the plaintiffs, James Gr. Shaw 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 Rew York on the 2d day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of February, 1909, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Hational Conduit and Cable Company, from a judgment of the Supreme Court in favor of the défendant, entered in the office of the cleric of the county of Hew York on the 29th day of December, 1908, upon the report of a referee dismissing the complaint upon- the merits in an action'to recover upon a fire insitrance polic3r.

<p>Appeal by the defendant, Charles Hauptner, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 7th day of October, 1909, appointing a receiver pendente lite of the late firm of Charles Hauptner & Co.</p>

Appeal by the plaintiff, Rosie Rothenberg, from an order of the Supreme Ooui't, made' at the Hew York Trial Term and entered in the office of the clerk of the county of Hew'York on the lltli day of October, 1909, denying the plaintiff’s motion to resettle an order which set aside, the verdict of a jury in favor of plaintiff and granted a hew trial.

Appeal by the defendant, Frances Hessberg, 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 decision of the court rendered after a trial at the Hew York Special Term.

Appeal by Frank L. Folk and others, constituting the municipal civil service commission, 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 4th day of October, 1909, directing a peremptory writ of mandamus to issue to the municipal civil service commission commanding them to revise and rerate the petitioner’s standing upon the eligible .list of the civil service.,

Appeal by the defendant, the New York Zoological Society, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of January, 1909, affirming a judgment of’the Municipal Court in favor of plaintiff rendered upon the verdict of a jury for $150 in an action for negligence, and also affirming an order denying the defendant’s motions to dismiss the complaint and to set aside the verdict and for a new…

<p>Appeal by the plaintiffs^ Hyman Wolf 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 Hew York on the 5th day of February, 1909, upon the decision of the court rendered after a trial at the Hew York Trial Term, á jury having been waived.-</p>

Appeal by the defendant, Henry L. Herbert, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 28th day of May, 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>Negligence — charitable institutions—when not liable for negligence of servants. ■</p> <p>A charitable institution, from, which the directors and organizers receive no profit is not liable for injuries to a recipient of its charity, caused by the negli-' gence of one employed in furtherance of the charitable object, if duecáre'has been used, in selecting the employee.</p> <p>This is true, although the mother of the injured person contributed toward the ■ expense of caring for him.</p>

Appeal by the plaintiff, The People of the State of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of September, 1909, striking out certain allegations of the complaint and requiring others to be made more definite and certain, and directing that an amended complaint be served conforming the pleading to the requirements of the order.

Appeal by the defendant, the City and County Contract. Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of June, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of June, 1909, denying, the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Joseph' P. Fallon, from a final order of the Supreme'Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 30th day of Movember, 1909, granting a peremptory writ of mandamus.

Appeal by the defendant, the Moore & Munger 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 1st day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of January, 1909, denying the defendant’s motion for a ■' new trial made upon the minutes.

<p>Corporations — directors — expenditure of profits in payment- of salaries — rights of minority stockholder.</p> <p>Where the directors of a corporation having a capital of §30,000, by resolution increase the collective salaries paid to officers from'$6,750 to §24,000, so as to practically usé up the entire earnings of the corporation, the court,.at the suit Of a minority stockholder, will compel the directors to make restitution. Directors of a corporation are trustees, and must manage its affairs with honesty ■ and fidelity in the interest of stockholders.</p> <p>Under the circumstances aforesaid, restitution will be decreed, although each-salary was voted upon separately and no director personally voted on the. resolution to increase his own salary as officer.</p> <p>As directors of a corporation who vote themselves salaries are in the position of trustees dealing with themselves to their own advantage, it is presumed that they acted'in their own interest to the prejudice of the corporation, and the i burden is upon them to overcome the presumption.</p> <p>Although a minority stockholder has no part in. the management of his corporation, he has a right to prevent -the directors from misappropriating the corporate funds under the guise of voting salaries.</p> <p>It seems, that the court, in decreeing restitution under the circumstances afore said, should not have permitted the directors to retain an amount equivalent to the salaries received by officers before the increase.</p>

Appeal by the defendants, Edward D. Stair and another,- copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the cleric of the county, of New York on the 13th day of January, 1909, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 14th day-of January, 1909, denying the said defendants’ motion for a new. trial made upon the minutes. e

Appeal by the plaintiffs, James Meadows and another, from a judgment of the Supreme Court in favor of the defendant, entered' in the office of the cleric of the county of New York on the 23d day of April, 1909, upon, the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant^ Thé City of Hew York, from- an order ■ of the Appellate Term of the Supreme Court, entered in the office of theclerk of- the. county of Hew York .on thelth day of May, 1909, reversing a judgment of the Municipal Court of the borough of Manhattan in favor of the defendant,, entered on the 12th day of December, 1908, and directing judgment for the- .plaintiff;', and also¡ from the judgment entered in the office of the clerk of the,said Municipal Court…

Appeil by the defendant, Edmond J. Butler, as commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the qlérb of the county of New York on. the. 6th day of April, 1909, .granting the relator’s motion, for.a peremptory; writ of mandamus.'

.Appeal by the defendant, Simon Katzenstein, from an order of the Supreme Court, made at the New York Special Term, dated the 16th day of September, 1909, and entered in the office of the clerk of the county of New York, granting an injunction pendente lite.

Appeal by the defendants, Mathew Hilgert 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 Mew York on the 14th day of January, 1909, upon the verdict of a jury for $3,000, and also from an order entered, in said clerk’s office on the 21st day of January, 1909, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Phoenix Construction 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 11th day of January, 1909, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s.office on the 13tli day of January, 1909, denying the defendant’s motion1 for a new trial made upon the minutes.

Appeal by the defendant, Nathaniel Fisher & Company, 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 1st day of October, 19G9, upon the decision of ■ the court, rendered after a trial at the New York, Special Term, overruling the said defendant’s demurrer to-the complaint.

Appeal by the plaintiff, The City of Yew York, from a judgr ment of tile Supreme Court in favor of the .defendants, entered in the office-of the clerk óf the county of Yew York on the 8th day of January, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Yew York Trial Term.

Appeal by the defendants, James M. Leopold and another, as copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff against the said defendants, entered in the office of the clerk of the county of New York on the 4th day of March, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, The City of New York, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of tlie clerk of the county of New York on the 31st day of October, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the first separate and complete defense contained in the answer.

<p>■ Injunction — charitable corporation — usurpation of name — similarity tending to deceive public — laches.</p> <p>The right to injunctive relief is not limited to business or trading corporations, ' but may be claimed by charitable, benevolent and patriotic societies.</p> <p>The plaintiff’s predecessor, the Salvation Army, an association organized on a military basis, was established in the United States in 1880. It issued a weekly publication called the “ War Ory.” The plaintiff, a branch of the association in this country, was incorporated in the State of New York in 1899, under the name of “ The Salvation Army in the United States.” It depends for -its support solely upon voluntary contributions. In 1896 the defendant was incorporated in Pennsylvania under the name of “ The American Salvation Army.” It was an entirely new organization, not connected with any previous movement. It is organized on a military basis with uniforms similar to those of plaintiff and issues and sells a paper called the “American War Cry" and many of its employees and agents have falsely represented themselves to be connected with the plaintiff and have received donations intended for it.</p> <p>Held, that the use of the names “ American Salvation Army ” and “American War Cry ” by defendant is calculated to deceive the public;</p> <p>That a complaint asking an injunction restraining the defendant from using its corporate name or any name so nearly resembling it as to be calculated to deceive the public, from using badges and military insignia similar to those of plaintiff, from printing and selling a paper known as the “ War Cry” or using that term in connection with its publications and from making representations leading the public to believe that defendant is the plaintiff for the purpose of securing credit or subscriptions, should not be dismissed on the ground that plaintiff is not entitled to the relief demanded.</p> <p>Where the defendant did not enter New York State until April, 1907, and it appears that plaintiff strenuously objected to its use of the name “ Salvation Army ” and the title “ War Cry” for its paper and began suit in November, 1907, it is not guilty of laches so as to preclude equitable relief.</p>

Appeal by the relator, Frank Zotti, 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 April, 1909, dismissing a writ of habeas corpus- theretofore issued in liis behalf and remanding the relator to the custody of the respondent.

Appeal by the defendant, O’Neill-Adams Company, and by Louis Stewart and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of December, 1909, denying the appellants’ motion to vacate an order for the examination of the defendant and its officers before trial.

Appeal by the defendants, Abraham Boehm and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 16th day of December, 1908, upon the verdict of a jury rendered by direction of the court, and also- from an .order bearing date the 4th ■ day of January, 1909, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes, in an action brought to…

Appeal by the defendants, Adrian H. Joline and another, 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 New York on the 26tli day of January, 1909, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 20th day of January, 1909, denying the defendants’ motion for a new trial made upon the minutes.

<p>Insurance — warranties made on former application embodied in subsequent application — application for other insurance — breach of warranty.</p> <p>Where the medical examiner of an insurance company instead of asking certain questions appearing in the application, inserted a note that the applicant ' asserts that statements made in a certain prior application for another policy still hold good and valid in regard to the present examination, there is a reiteration of the truth of the answers given on the former examination.</p> <p>Where on such prior application the applicant denied that he had applied to any other company for life insurance and had been rejected when in fact he had made such application for insurance, and, although his case was postponed for a further examination, the policy was refused' before his second application, there is a breach of warranty in the policy issued on his third application which' bars a recovery by his beneficiary.</p>

Appeal by the plaintiff, Fréd Fairbanks, 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 24th day of June, 1909, upon the verdict of a jury rendered by direction of the court.

Appeal by tbe defendants, Thomas F. Russell and another, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tbe office of tbe cleric of tbe county of Hew York on the 5th day of January, 1909, upon tbe verdict of a jury rendered by direction of tbe court, and also from an order entered in said clerk’s office on the lltii day of January, 1909, denying the defendants’ motion for a new trial made upon tbe minutes.

Appeal by the plaintiff, Katharine McDuffie, 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 25th day of March, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office ón the 23d day of March, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Knickerbocker Trust Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Hew York on the 15th day of May, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.</p>

Appeal by the defendant, the Mew York Transportation Company, 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 30th day of December, 1908, upon the verdict of a jury for $5,500 in an action to recover damages for the death of plaintiff’s intestate caused by the negligence of the defendant, and also from an order entered in said cleric’s office on the 4th day of January, 1909, denying the…

Appeal by the plaintiff, The Hew York Central and Hudson Eivar Eailroad Company, from an order of. the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2oth day of October, 1909, striking out certain portions of the complaint as irrelevant.

Appeal by the plaintiff, Eliza C. B. Montant, 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 25th day of June, 1909, upon the decision of the court, rendered after a trial at-the New York Special Term, dismissing the complaint upon the merits, and dismissing- the counterclaim of the defendant Moore, but not upon the merits.

Appeal by the defendant, the O’Rourke Engineering Construction 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 24th day of March, 1909, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 18th day of March, 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 19th day of June, 1907, directed to Theodore A. Bingham, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in relation to his imposing a fine upon the relator.

Appeal by the defendant, Burnett Y. Tiffany, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of December, 1909, denying the said defendant’s motion to dispense with printing certain papers on an appeal from an order entered herein on the 29th day of October, 1909.

<p>Appeal by the defendant, W. & J. Sloane, 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 3d day of February, 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. - v ■</p>

<p>Vendor and purchaser — broker’s commissions — sale of land—special contract — evidence.</p> <p>Evidence in an action to recover commissions on the. sale of real property, wherein the complaint was dismissed at the close of the plaintiffs’ case on the ground that there was no proof that plaintiffs were the procuring cause of the sale, examined, and held, that there was evidence of a special contract by the defendants to pay the commissions sufficient to raise a question for the jury.</p>

Appeal by the defendant, The Sun Printing and Publishing Association, 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 10th day of March, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

<p>Pleading — amendment after demurrer sustained — only portions attacked can be amended — practice — return of pleading containing unauthorized amendment.</p> <p>Where the court sustains a demurrer to a second separate defense with leave to plead over, the defendant is only entitled to amend the portion demurred to. Where the time to amend as of course-, has expired, the new pleading should contain the allegations of the former pleading not attacked together with such amendment to the portions held to be insufficient as the defendant desires to make.</p> <p>Where a party having leave to amend serves a pleading clearly not authorized by the leave granted, the party upon whom it is served may return it. On motion he will be required to accept the pleading if the amendment was authorized, but if the amendment or a portion thereof was not authorized he will not be required to accept it.</p>

Appeal by the plaintiff, the Erie Basin Improvement Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew 'York on the 30th day of March,. 1909, upon the decision of the court dismissing the complaint on the opening of plaintiff’s counsel upon a trial at the Hew York Special Term.

Appeal by the defendants, The Sun Printing and Publishing Association and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 26th day of February, 1909, upon the decision of the court rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of…

<p>Ahpeal by the plaintiff, Paul Shalet, 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 2d.day of November, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of November, 1908, denying the plaintiff’s motion for a new trial made upon the minutes. .</p>

Appeal by the defendant, Frank Kenney, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 3Qth day of December, 1908, convicting the defendant of the crime of petit larceny.

Appeal by the defendant, Milton Schnaier, 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 9 th day of February, 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.

Appeal by tk'e defendant, Peter Otten, 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 21st day of September, 1909, appointing a receiver of the rents and profits issuing out of the premises mentioned in the complaint.

Appeal by the plaintiff, the Uvalde Asphalt Paving Company, 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 22d day of June, 1909, upon .the verdict of a jury, 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, upon the minutes.

Appeal by the plaintiff, Wyckoff, Church & Partridge, 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 20th day of April, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, the verdict of a jury theretofore rendered in favor of the plaintiff having been set aside, and also from an order entered in said clerk’s office on the 13th day of…

Appeal by the defendant, The Clendening Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 23d day of April, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, directing an accounting.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 22d day of June, 1909, reversing an order entered on the 22d day of December, 1908, fixing a transfer tax upon the estate of the decedent.

<p>Mortgage — foreclosure — parties — administrator Of deceased mortgagor — creditors of deceased mortgagor — vendor and purchaser — marketability of title.</p> <p>On the death of a mortgagor intestate her heirs are necessary parties to a suit of foreclosure, but not her administrator. The administrator as such has no interest in the lands of his intestate, nor does he represent her general creditors in such sense as to make him a necessary party to foreclosure even if the personalty be insufficient to pay the debts. , ' • ■</p> <p>But such administrator is a proper, as distinguished from a necessary defendant on foreclosure, as the estate is liable for a deficiency.</p> <p>Although the estate of a deceased mortgagor be insufficient to pay his debts, general creditors have no such lien upon lands as to make them necessary parties to foreclosure.</p> <p>Hence, one who has bid in lands on foreclosure cannot refuse to take title upon the ground that the administrator was not made a party defendant even though the personalty be insufficient to pay debts.</p> <p>Nature of the statutory right of creditors to subject lands to the payment of debts where the personal estate is insufficient/stated per Houghton, J.</p>

<p>Appeal by the defendant, the Utah Gold and Copper Mines Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of September, 1909, as resettled by an order bearing date the oth day of October, 1909, and entered in said clerk’s office,, directing the issuance of a peremptory writ of mandamus'.</p>

Appeal by the defendant, Hyman Friedman, 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 October, 1909, denying the said defendant’s motion for judgment upon the pleadings.

Appeal by the defendant, John IT. Wright, 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 Hew York on the 6th day of October, 1909, granting an in] unction pendente lite.

Appeal by the plaintiff, Theodore A. Bingham, from an order of the Supreme Court, made at the Rev/ York Special Term, and entered in the office of the clerk of the county of Rew York on the SR tli day of September, 1909,striking out portions of the complaint as irrelevant, redundant and, in part, scandalous.

Appeal by the' plaintiffs, Leopold Zimmermann and others, copartners, etc,, from a judgment of the Supreme Court in favor of the plaintiffs for three dollars and twelve cents, entered in the office of the cleric of the county of New York on the 3d day of March, 1909, upon the verdict of a jury rendered by direction of the courts and also from an order entered in said clerk’s office on the lltli day of March, 1909, denying the plaintiffs’ motion for a. new trial made upon the…

Appeal by the plaintiffs, Clara Zweclter 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 Hew York on the 17th day of May, 1909, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term.

<p>Practice—motion for judgment on pleadings after issue joined — sufficiency of pleadings maybe tested—partnership—nature of partnership realty — partition — sufficiency of complaint.</p> <p>On a motion for judgment on the pleadings after issue joined made under section 547 of the Code of Civil Procedure the sufficiency of the pleadings may be tested as upon a demurrer, and the party whose pleading is found to be insufficient may be permitted to amend upon proper terms.</p> <p>The section is designed, to enable either party to test his right to judgment on the pleadings without waiting for the cause to be reached on the trial calendar, and the practice is analogous to that on a motion to dismiss at the opening of a trial.</p> <p>Partnership real estate retains its character as realty with all the incidents of that species of property as between the partners themselves, and also as between the surviving partner and the representatives of a deceased partner in the absence of an agreement to the contrary, express or implied'^ between.the partners, subject only to the liquidation of partnership obligations.</p> <p>Hence, the complaint of one claiming as heir or devisee of a deceased partner seeking to partition lands owned by the partnership should not be. dismissed as insufficient where it is alleged that all the partnership debts have been paid in full except certain mortgages upon the lands and the title to at least one of the parcels stood in the name of all the partners. Where the nature of the partnership business is not disclosed it will not be assumed that it was engaged in the business of buying and selling lands.</p>

Appeal by the defendant, Herman Rosenthal, 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 15th day of March, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of March, 1909, denying the defendant’s motion for a new trial made upon the minutes. v

Appeal by the plaintiff, The Carey Printing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of May, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term.

<p>Appeal by the defendant, Lancelot M. Berkeley, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19th day of March, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, directing an accounting.</p>

<p>Corporations — power of Legislature to annul or amend charters — constitutional law—Insurance Law, section 96, limiting new business of insurance companies not unconstitutional — act not private or local bill—no grant of exclusive privilege to corporations excepted—no denial of equal protection of law—contract with insurance agents — recovery for new business procured but not accepted.</p> <p>By virtue of the power reserved in section 1 of article 8 of the State Constitution the Legislature may amend or annul the charter of a domestic corporation. In amending the charter a corporation may be given greater or less powers than other corporations of the same class without violating any rights'secured by the State or Federal Constitution. •</p> <p>Section 96 of the Insurance Law, which limits the amount of new business which 1 a domestic insurance corporation may do yearly, is not a local or private bill; nor is it unconstitutional as granting an exclusive privilege, immunity or. franchise contrary to section 18 of article 3 of the State Constitution because corporations, one-half of whose outstanding insurance at a certain date consists of industrial insurance, are excepted from its operation.</p> <p>Said section does not violate section 16 of article 3 of the State Constitution, providing that no local or private bill shall embrace more than one subject and that shall be expressed in the title. This because said section is not a private. or local bill but an addition to the General Insurance Law.</p> <p>The Legislature may annul or amend the charter of any domestic corporation without infringing the provision of the Federal Constitution guaranteeing equal protection of the law. ♦</p> <p>Where the agreement of an insurance company with an association of its agents allows them certain compensation if they write a specific amount of new insurance each year, a member of that association may recover the agreed compensation in an action at law although the company refuses to accept- certain insurable risks obtained by him upon the ground that by so doing it would exceed the statutory limit placed upon new business.</p> <p>A breach of such contract with the association of agents, as it does not affect the right to recover in a legal action, gives no right to a suit in equity to restrain the defendant from refusing to recognize the obligations of its contract.</p>

<p>Appeal by the defendants, William Pierson Hamilton and others, from an order of thé Supreme Court, made at .the New Yorb Special Term and .entered in the office of the clerk of the county of New York on the 16th day of June, 1909, directing the substitution of the executors and trustees of the plaintiff as parties plaintiff in Ms stead.</p>

Appeal by the defendant, Mary Gallagher, from a judgment of • the Supreme Court'in.favor of the plaintiff, entered in the office of-the clerk of the county of New York on the 20th day of-August, 1908, upon the decision of the cpurt, rendered after a trial at the New York Special Term in an action to compel the . specific performance of a contract to convey -real estate.

<p>Mortgage — funding outstanding indebtedness of corporation—reserva-, tion of bonds to be issued to mortgagor in proportion to retirement of prior bonds—when trustee must issue bonds on receipt of prior bonds canceled or uncanceled.</p> <p>A corporation, having a portion of its property mortgaged to secure its bonds, executed a new mortgage specifically designated as a refunding mortgage, . designed to fund its indebtedness and to raise additional moneys. The prior mortgage required the mortgagor to pay to the trustee annually a certain sum in cash to redeem the outstanding bonds or to repurchase a similar amount of bonds yearly and deposit them with the trustee for cancellation in lieu of cash.</p> <p>The new mortgage required the trustee to reserve a certain proportion of the new bonds to be delivered to the mortgagor in exchange for or to take up at maturity or before maturity the bonds issued under the prior mortgage, and provided that when the mortgagor delivered any of the prior bonds to the trustee it should give back to the mortgagor new bonds of an equal face value. It was further provided that the mortgagor might sell thereserved refunding bonds in order to obtain money to purchase the prior bonds, and that the trustee should deliver the refunding bonds to the mortgagor upon a deposit of their face value in cash, the' cash to be returned upon a subsequent delivery of the prior bonds.</p> <p>Held, that it1 was the intention of the parties not only that all of the new bonds should be finally issued, but that the reserved portion thereof should be issued to the mortgagor as fast as the prior bonds were presented to the trustee, to the end that the prior bonds should be canceled and the mortgage securing the same discharged;</p> <p>That the mortgagor, having deposited cash with the trustee and received therefor a portion of the reserved bonds, which it sold and devoted the proceeds to the purchase of the prior bonds, was entitled to a return of the money so deposited on canceling the prior bonds and depositing them with the trustee;</p> <p>That the trustee was not entitled to receive the prior bonds uncanceled before delivering an equal amount of the refunding bonds or returning cash deposited by the mortgagor to purchase the same for purposes of sale.</p> <p>The word “ funding ” as used in such mortgage means the process of collecting together outstanding debts and substituting therefor a single form of indebtedness payable at periods comparatively remote.</p> <p>Ingraham and Houghton, JJ., dissented, with opinion.</p>

<p>Court —jurisdiction to impose sentence tested by habeas corpus — crime — seduction —marriage after .conviction.</p> <p>It seems, that the jurisdiction of the Court of General Sessions to impose a sentence may be tested by writ of habeas corpus. - One who has plead guilty to a charge of seduction under promise of marriage and has been convicted with sentence suspended may thereafter be sentenced; although after the plea of guilty he married the complaining ■witness'. . - '■</p> <p>Section 2176 of the Penal Law, providing that the subsequent intermarriage of parties before the finding of an indictment for seduction under promise of marriage is1 a bar to-a prosecution, applies , only where the marriage takes ■place-before arraignment and conviction. -'. "</p> <p>Clabic® and .Houghtok, JJ-.,-dissented, with opinion. .</p>

Appeal by the defendant, The /Etna Indemnity 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 28th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of November, 1908, denying the defendant’s motion for a new trial made, upon the minutes. . ■

Appeal by the defendant, the United States Mortgage and Trust Company, from a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of .the cleric of the county of New York on the 1st day of February, 1909, upon the verdict of a jury • rendered by direction of the court. The printed case on appeal contains also a notice of appeal from the same judgment by the plaintiff Julia W. Porges. ■

Appeal by the defendant, Josephine Delano, individually and as trustee, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8tli day of March, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, The Helderberg Cement 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 10th day of February, 1909, upon the verdict of a.jury, and also from an order entered in said- clerk’s office on the 15th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Milica Blitz,, 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 15th day of May, 1909,. upon the decision of the Court rendered after an order made at the New York Special Term granting judgment on the pleadings.

Appeal by the defendant, the M. Philipsborn Company, from an interlocutory judgment of the Supreme Court in fayor of the plain- • tiff, entered in the office of the clerk of the county of New York on -the 13tli day of May, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint

Appeal by the plaintiff, The-Rector, Church Wardens and Vestrymen of the Church of the Transfiguration in 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 2d day of December, 1909.

Appeal by the defendants, Abraham P. Miller and others, from from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bew York on the 31st day of July, 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 21st day of July, 1909, denyingthe defendants’ motion for a new trial made upon the minutes.

Appeal by. the plaintiff, Isidore Ouba, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day- of. January, 1909, affirming a judgment of the Municipal Court of the city of New York in favor of the defendants,'rendered on the 5th day of Decemr her, 1907.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the lltli day of February, 1909, upon the verdict of a jury for §650, and also from an order entered in said clerk’s office on the 8th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Ignatz Roth, from an interlocutory 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 10tli day of August, 1909, pursuant to an order made at the Hew York Special Term and entered in said clerk’s office on the 9tli day of August, 1909, referring the issues to a referee, and also, from the said order directing the entry of such interlocutory judgment.

<p>Appeal by the defendant, the Star Company, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 30th day of April, 1909, convicting the defendant of libel.</p>

Appeal by the Portland Realty Company from 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 10th day of March, 1909, confirming the report of commissioners of estimate and assessment herein as to awards made for damage parcels Nos. 3 and 4.

<p>Trial—verdict rendered oh evidence repudiated by plaintiff— receiver of partnership pendente lite not liable to creditors — appeal — dismissal of complaint on reversal of judgment for plaintiff.</p> <p>Where a plaintiff gave evidence which entitled her to a verdict for a cer- . tain sum or for nothing, but the jury rendered a verdict for a smaller sum based, upon admissions contained in a former affidavit made by her, .but which she repudiated on the ground that it was made by mistake, it is evident that | the jury disbelieved the plaintiff’s testimony, and the verdict will be set aside as against the weight of evidence.</p> <p>A receiver appointed merely to bold the assets o£ a partnership pendente lite takes no title, nor does he stand in tire shoes of either the partners or creditors. Hence a creditor of the firm cannot sue such receiver on a partnership debt, but can proceed only against the partners who are not absolved from liability by the appointment of the receiver.</p> <p>It seems, that a judgment obtained against the partners cannot be enforced by execution on property held by the receiver, but entitles the judgment creditor to share in the assets upon a proper application to the court.Where no change in the pleadings or evidence can establish a cause of action, the appellate court will dismiss the complaint on reversing a judgment in the plaintiff’s favor.</p>

Appeal by the defendant, Jules S. Ehrich, doing business under the firm name, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 10th day of April, 1909, upon the decision of the court rendered after a trial at tire New York Trial Term before the court without a jury.

Appeal by the defendant, Jolin'B. McDonald, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of November, 1908,. lipón the verdict of a jury for $1,000, and also from an order' entered in said clerk’s office on the 16th day of November, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Herman D. Tesohmacher,. from .an order of the Supreme Court-, .made at the Hew York Special' Term and entered in the office of the clerk o'f the county of Hew York on- the Sth day of Hovember, 1909.

Appeal by the defendants, Morton L. Mortimer and others, from an order of the Supreme Court, made at the Mew York Special Term, bearing date the lltli day of September, 1909, and entered in the office of the clerk of the county of Mew York.

Appeal by the plaintiff, William H. Harrison, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 18th day of June, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Hew York Trial Term.

' Appeal by the defendants, Charles II. Ellingwood and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 31st day of March, 1909, upon the verdict of a jury, and also from all order entered in said.clerk’s office on the 5th day of April, 1909, denying the defendants’ motion for a new trial' made upon the minutes.

Appeal by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1908, denying a motion to confirm the additional and amended supplemental and separate partial report of the commissioners of estimate herein as to certain damage parcels and returning said report with instructions, with notice of an intention to bring up for review an order entered…

Appeal by the plaintiff, Donald Mitchell, from a judgment of the Supreme Court in favor of the defendant, The Dunmore Realty Company, entered in the office of the clerk of the county of Mew' York on the 12th day of May, 1909; dismissing the complaint as to the said defendant, with notice of an intention to bring up for review an interlocutory judgment entered in said clerk’s office on the 12th day of May, 1909, and such part of the intermediate order, entered in said clerk’s…

<p>Pboceeding to disbar the respondent.</p>

<p>Attorney disciplined.</p> <p>Attorney at law disciplined by suspension from practice for two years for fraud and chicanery designed to impede the course of justice, in that he drew an answer denying knowledge or information of facts which were'true to his own knowledge, attempted to indude the court to accept false answers to impede ,a recovery of judgment where there was no defense, and - drew deeds whereby his client attempted to place his property beyond the reach of creditors.</p>

Separate appeals by the defendants, Jerome A. Jackson and others, from portions of a judgment of the Supreme Court in favor of the defendants The City of New York and James D. Murphy Company, entered in the office of the clerk of the county of New York on the 26th day of March, 1909, upon the decision of the court rendered after a tidal at the New York Special Term.

<p>Appeal by the defendants, Edward D. Shepard and another, as copartners, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 17th day of December, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s -office on the day of December, 1908, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant,- the Improved Property Holding 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 29th day of March, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the oth day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the Estate of Isaac G. Johnson and others from an ' . order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of March, 1909, confirming the supplemental and amended report of commissioners of estimate and assessment herein.

<p>Attorney disbarred — prosecution of case founded upon perjured testimony — corroboration of accomplices — commission of crime not essential to disbarment.</p> <p>Attorney at law disbarred because, when retained on a contingent fee, he continued to .prosecute the trial of an action and asserted his client’s right to. a verdict after .having discovered that the cáse was founded upon perjured testimony.</p> <p>The rule that a person cannot be convicted upon the uncorroborated testimony of an accomplice does not obtain in its strictness in a proceeding to disbar an attorney. " , ' ■</p> <p>. In a proceeding to disbar an attorney the court may determine the extent to which the testimony of his accomplice must' be corroborated in each particular ■ case.</p> <p>. An attorney may be disbarred for continuing the trial of á cause after obtaining knowledge that it is founded upon perjured testimony even though he has not been guilty of the crime of subornation of perjury, for an attorney may be disbarred although guilty of no crime-. .' • • •</p> <p>The offense of prosecuting a case, with knowledge that it is founded'upon perjured testimony is much greater where the attorney is interested in the controversy by reason of a retainer making his fee contingent.</p> <p>It seems, that where an attorney at trial discovers that the case is based upon perjured testimony, it is his duty to disclose that fact to the court and to withdraw from the case. Even though it be assumed that his obligations to his client do not justify his revealing the facts, that obligation does not justify him in deceiving the court by continuing to prosecute the claim.</p>

<p>Tax — machinery annexed to realty taxable as land—fact that title had not passed immaterial. .</p> <p>Electric light machinery installed in a building erected for the purpose of pfo'ducing electricity for distribution is taxable as real -estate.</p> <p>Such machinery when' installed in the building and affixed to the realty is taxable as real estate, even though a portion,of the purchase price was retained ■ pending a test of its efficiency, and although the title had not yet passed.</p>

Cboss-appéals by the relator, The New York Edison Company, and the defendants, James L. Wells and others, commissioners, 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 l'9tli day of November, 1908, reducing an assessment for purposes -of taxation-.

Appeal by the defendant, The Central Insurance Company, Limited, 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 8th1 day of February, 1909, upon the verdict of a jury, 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 defendants, George B. McClellan, as mayor, etc., and others, 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 11th day of December, 1909.

Appeal by the defendants, John B. Bartlett and others, from a judgment of the Supreme Court in favor of the plaintiff against said defendants, entered in the office of the clerk of the county of Mew York on the 16th day of March, 1909, upon the decision of the court rendered after a trial at the Mew York Special Term, except in so far as said judgment dismisses the complaint as to the defendant Edward B. Peet.

<p>Guaranty and suretyship—debtor and creditor — extension of credit — evidence — charge.</p> <p>Where in an action to recover from the guarantor of certain accounts it appears that the debtor being in default, the creditor telephoned to the .guarantor and told him that he was contemplating suit against the debtor and asked if he wished it brought,' to which the guarantor replied that the creditor could use his own judgment as to whether to sue or not or whatto do with the matter, and subsequently the creditor accepted the debtor’s time notes for the debt, which were not paid at maturity, the authority given to the creditor over the telephone is not sufficient to justify a finding that defendant consented to the creditor’s extending the time of payment.</p> <p>Houghton, J., dissented, with opinion.</p>

<p>Will construed — devise in trust with contingent remainders — costs — action to determine claim to lands — extra allowance.</p> <p>A will conveyed lands in trust, the net income, or so much thereof as the trustee should deem necessary, to be paid to the use of two sons during their respective lives, not more than one-half to the use of each. It was further provided. that such portion of the income as the trustee did not deem necessary for the use of the sons should be accumulated during the infancy of any children that might be born to the sons, the accumulation to be divided pro rata among such grandchildren when the first of them should attain his majority. It was further provided that should either of the sons die leaving issue surviving, the income from the principal of his portion of the trust should be applied to the use of such; issue in equal shares until they respectively attained majority — the principal as each grandchild attained majority to be divided;—and each to receive an equal share thereof. If either of the sons should die without issue surviving, the income which had been applied to his use, or so much thereof as the executor deemed necessary, was directed to be applied to the use of the other son, any surplus to be accumulated for the grandchildren. By a residu- . ary clause the testator left the rest of his property to his widow. The two life beneficiaries died, one with and the' Qther without issue surviving, the one without issue dying last.</p> <p>JHeld, that the half interest in the lands of the life beneficiary who died without issue did not fall into the residuary estate, but on the contrary went to -the issue of the other son.</p> <p>In an action to determine a claim to real property brought under sections 1638-1650 of the Code of Civil Procedure, where a will is construed so as to support the plaintiff’s claim, he is entitled to costs but not to an extra allowance. The defendants are not entitled either to. costs or extra allowance. The costs awarded to the plaintiff should be charged against the defendants, not made payable out of the property.</p>

Appeal by the defendant, Edward S. Moore, from a judgment of the County Court of Herkimer county in favor of the plaintiff, entered in the office of the clerk of said county on the 8th day of April, 1909, pursuant to an order of said County .Court entered in said clerk’s office on the same day reversing a judgment of a justice of the peace of the town of Herkimer in favor of the plaintiff and directing a new trial before the justice who tried the action, and also (as stated…

<p>Crime — expiration of time set for execution during stay — fixing new date.</p> <p>Although the week within which one convicted- o£ murder was to be executed expired after the granting of a stay by the Court of Appeals, a new-date for the execution can be fixed by the Court of Appeals, or by the Appellate Division of the department in which the conviction was had, pursuant to sections 503 and 504 of the Code of Criminal Procedure.</p>

Appeal by the petitioner, Grace S. Sloane, as administratrix, etc., from a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 31st day of July, 1909, settling the accounts of the said administratrix.

Appeal by the defendant, Maggie McCrea, 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 18th . day of September, 1909, nunc pro tuno, as of the 24tli day of June, 1909, denying the said defendant’s motion that an additional party be brought in as defendant.

<p>Negligence — involuntary act — facts not showing negligence.</p> <p>The law presumes that an act done.under.the influence of pressing danger was involuntary.</p> <p>Where in a negligence action it appears that a contractor in trying to get upon a runway stepped upon a barrel which turned over and in order-to save himself from falling the contractor caught hold of the feet of plaintiff, a mason employed on the work, causing him to fall into the excavation, no actionable negligence is shown.</p> <p>Hirsohberg, P. J., and Miller, J., dissented</p>

<p>Master and servant — negligence — capsizing of piledriver — hiring of unseaworthy vessel — questions for jury — cross-examination.</p> <p>Where in an action to recover for the death of a servant caused by negligence, it appears that the deceased was employed on a floating piledriver chartered by the defendant, which when inspected by the defendant at the time of hiring was found to be in bad condition, and which capsized because of unseaworthiness drowning the intestate, it is for the jury to say whether or not the defendant was negligent in assigning the deceased to duty on the boat.</p> <p>It was the defendant’s duty to furnish plaintiff’s intestate with a safe place to work and it is for the jury to determine whether or not .the act of the foreman in directing the deceased to go aboard the piledriver was in the course of his duty to the defendant.</p> <p>Where a witness was called by the plaintiff solely to prove the hiring of the pile-driver, testimony as to the seaworthiness of the boat elicited by the defendant is not proper cross-examination and he becomes the defendant’s witness as to that.</p>

Appeal by the plaintiff, Maurice Jacobs, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 30th day of October, 1908, upon the decision of the court rendered after a, trial at the Queens County Special Term.

Appeal by the defendant, Edward Jordan, from a judgment of the Municipal. Court of.the city of New York in favor of the plaintiff, rendered on the 27th day óf May, 1909, in an action brought to recover damages for a personal injury alleged to have been sustained through the negligence of defendant’s foreman in failing to inspect materials given the plaintiff for his work, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Kascsak, 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 July, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.

<p>Judgment — intoxicating liquors — res adjudicata — identity of issues.</p> <p>It is not the identity of the thing sued for or of the causes of action which determines the conclusiveness of a former judgment but merely the identity of the issue involved in the two suits.</p> <p>In an action brought by the State Commissioner of Excise to recover the penalty of a bond given on an application for a liquor tax certificate; an allegation of the answer that the plaintiff had been defeated in a former action brought to recover the penalty given by the statute for the same violation set forth in the complaint is not demurrable. The result in the first proceeding bars the subsequent action in so far as it rests on the same alleged violation.</p>

<p>Railroad—master and servant —negligence — injury crossing tracks — duty to guard employees.</p> <p>Where in an action by a car repairer to recover for personal injuries, it appears that it was necessary and customary for him and other workmen in going from the tracks where they worked to the toolhouse to cross track No. 13, on which stood a number of disabled cars temporarily out of use; that it was customary for the men to board an engine at this point to be taken home; that the foreman had authorized the practice; that to reach this engine it was necessary to recross track No. 13 from the toolhouse; that while plaintiff was crossing between the disabled cars in order to board the engine to go home they moved and injured him by reason of the impact of other cars which were being shunted in on that track, an order setting aside a verdict for the plaintiff will be reversed and the verdict reinstated.</p> <p>The railroad having created and maintained the condition should have used suitable precautions to protect its employees, whose duties required them to cross the track.</p> <p>The plaintiff had a right to assume that cars which were designated “disabled ” and “ crippledwould remain stationary until proper warning of an intention to move them.</p>

Appeal by the defendant, Chelsea Fibre Mills, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 8th day of July, 1909, denying the defendant’s motion to change the place of trial.

<p>Appeal by the defendant, Maria A. Bird, 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 9th day of January, 1909, upon the decision of the court rendered after a trial at the Nassau Special Term.</p>

Appeal by tlie defendants, the Lotus Realty Company 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 22d day of September, 1909, reducing the amount of plaintiff’s bid on a foreclosure sale.

<p>Appeal by the defendant, the Metropolitan Life Insurance.Conn ■pany, from a judgment of the Municipal Court of the city-of. Hew York, borough of' Brooklyn, in favor of the plaintiff, rendered on the 3d day of June, 1909.</p>

<p>Injunction — real property— restrictive covenants —injunction denied.'</p> <p>Where the'owner of certain lots subject to restrictive covenants that no structure for business purposes should be erected thereon, and. tliat no building should be placed within fifteen feet of the street line, sells some of his lots to a contractor constructing a railroad through the territory knowing of the construction of the road and that the lots were to be used for railroad purposes, he is not entitled to a temporary injunction restraining the railroad company from constructing its road over the tract.</p> <p>That the defendant-had erected a temporary building made necessary by. the-construction work within fifteen feet, of the street line, is not ground for granting such an injunction. 1</p>

<p>Appeal by Frank W. Baum from a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 16tli day of January, 1909, admitting to probate a paper alleged to be the last will and testament of Benjamin F. Curtis, deceased.</p>

Appeal ,by the defendants, Otto Katnpfe and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of March, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the plaintiff, Michael Pratt, 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 4th day of May, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

<p>Appeal by the defendant, Henry Haab, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 29th day of January, 1909, upon the decision of the court rendered after a trial at-the Suffolk Special Term, and also (as stated.in the notice of appeal) from an order denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The. Maintenance Company, 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 11th day of October, 1909, denying the defendant’s motion for judgment upon the pleadings pursuant to section 547 of the Code of Civil Procedure.</p>

Appeal by the defendant, Max Kxirzrok, 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 Jxxly, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of June, 1909, denying the defendant’s, motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Benjamin Chubin, a tenant, from a judgment of the Municipal Court in favor of the plaintiff, rendered on the 26th day of May, 1909, in summary proceedings.</p>

<p>Constitutional law—interstate commerce—rights of State and Federal Legislatures — carrier — limiting hours of employment of telegraph operator — when Federal act exclusive.</p> <p>The jurisdiction of the State and Federal Legislatures over interstate commerce within the State is concurrent, but when Congress has dealt with the subject its action is supreme and exclusive. Congress having passed an act that no telegraph operator on a railroad who delivers orders pertaining to trains shall remain on duty more than nine hours in twenty-four, and which provides that the act shall not become effective for a year from its passage, the State Legislature is without power to enact within the year a statute covering the same subject and limiting the time of employment to eight hours.</p> <p>Although the Federal act prescribes a maximum time, a provision of said State statute limiting the time to a shorter period is inconsistent therewith.</p> <p>The Federal act was effective as a declaration of the purpose and intention of Congress as soon as passed, and the fact that it did not take effect until a year later did not give the State Legislature power to pass an act in the-meanwhile. The fact that telegraph operators have to do with the movements of both interstate and intrastate trains does not make the Federal act unconstitutional.</p>

Appeal by the defendant, Joseph A. Flannery, from a judgment of the Supreme Court in favor of the plaintiff and the defendant corporation, entered in the office of the clerk of the county of Westchester on the 10th day of March, 1909, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, The Hew York Central and Hudson River 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 Westchester on the 15th day of January, 1909, upon the verdict of a jury for $3,500,'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.

Appeal by the defendant, the John Hancock Mutual Life Insurance Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of thé plaintiff, rendered on the 23d day of June, 1909, after a trial by the court without a jury.

Appeal by the defendant, Edward F: Schlichter, from an order of the Supreme Court, made at the Kings County Special Térm and entered in the office of the clerk of the county of Kings on the 20th day of August, 1909.

<p>Will construed — devise in trust, proceeds of sale to class.</p> <p>A will which devises certain lands in trust to be sold and the proceeds divided equally between the nephews and nieces of the late husband of the testatrix, being children of the husband’s brother, who were living at his decease, and also to the children of the husband’s sister, share and share alike, will be construed as a gift to the nephews apd nieces as a class, rather than as a gift to them nominatim, and, hence, the proceeds should be divided among such nephews and nieces as were living at the death of the testatrix.</p>

<p>Beargumeht of ah appeal by the defendants, Frieda Hart 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 Queens on the 19th day of February, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 10th day of March," 1908, denying the defendants’ motion -for a new trial made rqDon-the mimit-es. . .</p>

<p>Appeal by the plaintiff, Patrick Wynn, from á judgment of the Supreme Court in favor of the defendant Thomas G. Carlin? entered in the office of the clerk of the county of Kings on the 5th day of April, 1909, upon the dismissal of the complaint as to said defendant by direction of the court at the close of the .plaintiff’s case on a trial at the Kings County Trial Term,. the. action against the other defendants having been discontinued in open court.</p>

<p>Pleading—labor and materials—bill of particulars.</p> <p>A defendant sued for labor performéd and materials furnished, who admits that , some work was done, but alleges that it was so improperly done that he had to do it over again and counterclaims for the expense thereof,' will not be required to furnish a bill of particulars of the work actually done by the ■ plaintiff. "</p>

<p>Landlord and tenant — contract creating relationship—lease of dock privileges — bolding over—principal and agent — authority to grant verbal renewals on different terms.</p> <p>A contract, by its terms called a lease, granting space on a dock for the mainte- . nance of an ice bridge and scales and an office to be constructed and maintained at the expense of the lessee at an agreed price for a term of one year, with a privilege of. renewal, creates the relation of landlord, and tenant. Such an occupation is distinguishable from that of a mere licensee having the privilege of using'the wall of a building for advertising purposes or of' placing • advertisements in street cars. The tenant having remained in possession after the expiration of the term, the landlord at his option may treat him as a trespasser or as a tenant for another year. It is immaterial that the tenant did not serve the formal written notice of intention to renew required by the lease.</p> <p>The right of the landlord to treat the'holdover as a renewal for a new term does not spring from the contract, but is the penalty imposed by law upon the trespassing tenant. The new term is separate and distinct from the preceding one, and they are only related to each other in respect to the conditions of the original lease which, except as to its duration, the' law reads into the new tenancy.</p> <p>' A conversation had by a representative of the lessee with a mere employee of the landlord, which does not appear to have been reported to the latter, in. which the employee stated that, so far as he was concerned, there was no objection to the rent being computed for the next year on the basis of business actually done, does not amount to a contract reducing the rent, especially where the same representative of the lessee when rent was subsequently demanded wrote a letter in regard to the holding over, in which he made no reference to the agreement.</p>

Appeal by the plaintiff, Angelo Ciccarelli, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Queens on the 30th day of January, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Queens County -Trial Term.

Appeal by the defendant, the Firestone Tire. and Rubber Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of June, 1909, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the amended complaint.

Appeal by the defendant, the Wakefield Park Bealty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of January, 190.9, upon the verdict of a jury, and also from an order entered in said clerk’s- office on the 13th day of March, 1909, denying the defendant’s motion to set aside, modify or correct the verdict.

Appeal by the defendant, Quincy Ward Boese, 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 28th day of May, 1909, upon the decision of the court rendered after a trial at the Dutchess County Trial Term before the court without a jury.

Appeal by the relator, Ernst Lindemann, from, an order of the Supreme Court, made at the. Kings County Special Term and entered in the office of the clerk of- the county of Kings on the 17th day of May, 1909, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendants, the Hein Construction Company and others, from a judgment of the Supreme Court in favor of the defendant Bucldey, Woodhull & Burns, entered in the office of the clerk of the county of Kings on the 11th day of November, 1908, upon the decision of thé court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, The Park Terrace Company, from, a final judgment of the Supreme Court in favor of the plaintiffs, entered in the-office of the' clerk of the county of Queens, on the 9th day of June, 1909, confirming the report, of a referee and directing the sale of certain real property under foreclosure proceedings, with notide of an intention to bring up for review an interlocutory judgment and order of reference entered herein on the 1st day-of May, 1909, and an…

<p>Aliens — naturalizations—jurisdiction appeal.</p> <p>A declaration by. an alien of an intention to become a citizen does not initiate a judicial proceeding to that end. The first step in the judicial proceeding for naturalization is the petition.</p> <p>Where a petition for naturalization has been filed, in the Supreme Court of the district where the alien resided for the required time, the court does not lose jurisdiction to grant naturalization because before the hearing he changed his ■ residence to another district.</p> <p>This is true although it be assumed that, the Federal statute, conferring jurisdiction on certain courts and limiting them to the naturalization of aliens resident within their respective “ judicial districts,” intended to restrict the jurisdiction of the co-ordinate branches of our Supreme Court to their respective judicial districts, as to which, qumre. ■</p> <p>There is a right df appeal in naturalization proceedings originating in the State courts. ■ .</p>

Appeal by the defendant, The City of Mew York, from a judgment of the.Supreme Court in favor of the plaintiff, entered:in the office of the'clerk of the county of Richmond on the 20.th day of Movember, 1908, upon the verdict of a jury for $800, and also from an order entered in said clerk’s - office on the -11th day of Movember, 1908, denying the defendant’s motion for a new trial made upon the minutés.

Appeal by the defendant, Susan Hessen, 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 3d day of May, 1909, upon the decision of the court rendered after a trial at the Queens County Special Term.

Appeal by the defendant, the Church Charity Foundation of Long Island, from a judgment of the Supreme Court in favor of tile plaintiff, entered in the office of the cleric of the county of Kings on the 4th day of May, 1909, upon the verdict of a jury for $30,000, and also from an order entered in said clerk’s office on the 6th day of May, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Everett S. Hiscox and another, as executors,, etc., from a decree bf the Surrogate’s Court of the county of Suffolk, entered in said Surrogate’s Court on the 2d day of April, 1909, directing the said executors to amend their account.

<p>Party — effect of failure to object to defect of parties — necessary parties tó suit in equity — power of appellate court to bring in parties — debtor and creditor —fraudulent conveyance to corporation — stockholder procuring conveyance not necessary party.</p> <p>Where objection to a defect of parties -is not raised by answer or demurrer, or taken at the trial, the strict legal right to have the parties brought in is lost. But, it seems, where the suit is'in equity and a complete determination of the controversy- cannot be had without the presence of other parties, the court -of its-own motion may direct them to be brought in, and a party may urge that the presence of other parties is necessary for the first time on appeal, for tlie court will not render a fruitless judgment.</p> <p>A stockholder through whom an alleged fraudulent conveyance was made to liis corporation, while a proper, is not a necessary party tó a suit in equity to set aside the conveyance as in fraud of creditors, even though the original contract to convey was made with, him and the final conveyance was made to the corporation as bis appointee.</p> <p>This is true although the. conveyance is set aside upon a finding that an indebtedness owed by the grantor to the stockholder was fictitious, for if the indebted ness was not fictitious the stockholder, not being a party, is not bound by the decree; and although he furnished the only alleged consideration, by virtue of the statute there was no title or resulting use or trust in his favor or in the favor of any person except his creditors to the extent necessary to satisfy their just demands.</p> <p>Where lands are conveyed to a corporation in fraud of creditors, a stockholder has no equitable interest in the property which makes him either a necessary or a proper party to a suit to set aside the deed.</p>

<p>Evidence—fall of derrick:—cause of accident — prior malicious acts to produce similar result.</p> <p>Where the plaintiff, a non-union workman employed during a strike, was injured by the fall of a derrick supported by wedged- shoring which had proved sufficient by a use of several weeks, and which after giving way was found to be unbroken, his master, charged with negligence in failing to furnish a proper support for the derrick, is entitled to show that union men who were employed by other contractors in close proximity to the shoring had on previous occasions tampered with the derrick by cutting or weakening'the supporting guy ropes.</p> <p>Where there is a question as to the cause of an occurrence, the fact that similar occurrences have under like conditions been produced by a particular cause is relevant.</p> <p>The fact that the methods employed to weaken the derrick were not identical is immaterial, since the result sought to be effected is the same.</p> <p>Such evidence is admissible although it is not shown who tampered with the derrick on either occasion.</p>

<p>Will — revocation by later will — evidence — contents of lost will — secondary evidence — attorney and client — privileged communications.</p> <p>Where a testator destroys a will which revoked a prior will, the prior will is not revived'unless it be duly republished.</p> <p>The execution of a later will does not revoke a prior will except it contain express words of revocation, or except' in so far as the two are inconsistent.</p> <p>"Where probate is resisted upon the ground that the testator executed a later .will by which the prior will was revoked, secondary evidence of the. contents of the second will becomes admissible where the loss of the original has been established.</p> <p>But an attorney who drew the second and. lost will cannot, in the absence of a waiver of the privilege created by section 835 of the Code of Civil Procedure, testify as to its contents, nor is a copy of the instrument made and kept by him admissible, both being confidential communications.</p>

<p>Appeal by the relator, The Mew York Central and Hudson River Railroad Company, 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 Rockland on the 15th day of October, 1909, denying the relator’s motion to strike from the assessment roll of the village of Haverstraw a special franchise assessment against the West Shore Railroad Company, the relator’s lessor, and dismissing a writ of certiorari theretofore issued herein. '</p>

Appeal by the defendant, Louis B. Boudin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 1st day of Hay, 1908, upon the verdict of a jury rendered by direction of the court after a trial at the Suffolk Trial Term.

Appeal by the plaintiff, Sarah A. Carlin, as administratrix, etc., from separate judgments in favor of the respective defendants, entered in the office of the clerk of the county of Kings, one on the 1st day of Hay, 1909, and the other on the 28th day of June, 1909, upon the dismissal of the complaint by direction of .the court after a trial at the Kings Count}7 Trial Term, certain questions of fact having been submitted to the jury, and also from an order entered in said…

Appeal by the plaintiff, Frank Earle Parham, as assignee,, etc., 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 25th day of February, 1909, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits.

<p>Master and servant—negligence—proximate cause — act of fellow-servant. ■ •</p> <p>Where a cable used for hauling wagons containing excavated material up an incline was negligently attached to a wagon by a fellow-servant of the plaintiff's intestate, so that when the cable tightened it struck against a trunk of a tree which lay ten or twelve feet from the ordinary course of the cable, causing it to fall off the embankment and kill the intestate, the proximate cause of the accident was the act of the fellow-servant .rather than the negligence of the master in leaving the tree trunk in that position.</p> <p>Hence, there can he no recovery even though the action he brought under the Employers’ Liability Act in the absence of evidence that the person who attached the cable or the person who operated the winch on which it wound was cither a superintendent or' exercising acts of superintendence, or acted under the immediate direction of a superintendent.</p> <p>Bich and Miller, JJ., dissented.</p>

<p>Appeal by William A. De Groot from an order of the Supreme Court in the first above-entitled proceeding, entered in the office of the clerk of the county of Queens on the 8th day of November, 1909,. granting an application for a peremptory writ of mandamus, and from an Order in the second above-entitled proceeding entered in said clerk’s office on the 23d day of November, 1909, denying the relator’s application for a peremptory writ of • mandamus.</p>

Appeal by the defendants, Michael J. Tierney, as executor, etc.? 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 Kings, on the 17th day of June, 1909, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term.

Appeal by the plaintiff, Reginald E. A. Pitman, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the cleric of the county of Dutchess' on the 1st day of June, 1909, staying a sale under an execution.

<p>Appeal from a judgment entered on the 4th day of'June, 1907, upon a verdict, and from an order entered on the 5th day of June, 1907, denying a motion for a new trial.</p>

<p>Appeal from a judgment entered on the 15th day of February, 1909, after a trial at Special Term.</p>

<p>Appeal from an order of Special Term entered on the 8th day of. October, 1909, granting a motion for an additional undertaking.</p>

<p>Appeal from a judgment entered on the 7th day of May, 1909, after a trial at the Hew York Trial Term before the court without a jury.</p>

<p>Appeal.from an order entered on the 13th day of July, 1909, granting a motion to vacate and set aside a default.</p>

<p>Appeal from an order entered on the 7th day of October, 1909, resettled by an order entered on the 4th day of Hovember, 1909, opening a default and vacating an order dismissing the complaint.</p>

Judgment affirmed, with costs, on the opinion of the court below, with leave to defendants to withdraw demurrer and to answer on payment of costs.