Volume 136 — New York Appellate Division Reports

<p>Appeal by the defendants, Max J, Shapiro and another, from an . interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the. cleric of the county of Kings on the 30th day of April, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term overruling the defendants’ demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action; that there are other actions pending between the same parties for the same causes of action, and that causes of action have been improperly united.</p>

Appeal by the plaintiff, Abram Friedland, from an order of the Supreme Court, made at the Kings County Special Teym and entered in the office of the clerk of the county of Kings on the 26tli day of October, 1909.

Appeal by' the relator, Alessandro Rota, 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 November, 1909, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendants, Barnet Abramowitz .and another,. from an order of the Supreme Court, made at the Sings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of August, 1909, vacating an order entered on the 19th day of May, 1909.

<p>Executors and administrators — accounting — refusal to account to ancestor of decédent on the ground that posthumous child was born— burden of proof.</p> <p>Where a widow, as administratrix of her deceased husband who died without issue, resists a compulsory accounting instituted by the father of the decedent upon the ground that after her husband’s death she. gave birth to a posthumous child,'she is under the burden of showing that the child was bom alive.</p> <p>Evidence examined, and held, insufficient to show that the posthumous child was bom alive.</p>

Appeal by the plaintiffs, Theodore Baker 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 Bichmond on the 10th day of May, 1909, upon the dismissal of the complaint by direction of the court'at the close of the plaintiff’s ease on a trial at the' Bichmond Trial Term, and also from an order bearing date the 7th day of May, 1909, and entered in said clerk’s office denying the plaintiffs’ motion…

Appeal by the defendant, The Long Island 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 Nassau on the 8th day of April, 1909, upon the verdict of a jury for $6,000, and also from an order entered, in said clerk’s office onthellth day of April) 1909, denying the defendant’s motion for a new trial made upon the minutes.. ' .

<p>Appeal by the defendant, Joseph Balaban, from a judgment of the Supreme Court in favor of' the. plain tiff, entered in the office of the clerk of the county of Westchester on the 12th day of January, 1909, upon the verdict of a jury for S3,000, and also from an order entered in said clerk’s office on the 21st day of January 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Principal and agent — evidence — proof of undisclosed agency — sale — suit by undisclosed principal for breach of implied warranty — effect of execution of contract — when implied warranty survives acceptance — latent defects — pleading — contract made through agent.</p> <p>An undisclosed principal suing on a contract made by his agent may give evidence of conversations between them to establish the agent’s authority to make the contract in the absence of a written contract of employment.</p> <p>One who has executed a contract of sale made with the agent of an undisclosed principal by delivering the goods to the principal, cannot escape liability for a breach of an implied warranty as to the quality of the goods on the theory that he would not have contracted with the principal, if he has not been prejudiced by having dealt with the agent as a principal.</p> <p>One who deals with the agent of an undisclosed principal occupies a contract relation with the principal, so that he may be held upon an implied warranty when the contract has been executed.</p> <p>One who manufactures goods to be used for a certain purpose impliedly warrants that they are free from latent defects and suitable for the purpose intended.</p> <p>Hence, where the buyer sues for a breach of such implied warranty it is error for the court to limit the proof to a comparison of the goods with other goods manufactured by the seller.</p> <p>An implied warranty arising upon the sale of goods to be manufactured does not survive acceptance where the defects are discoverable upon inspection, but by inspection is meant the customary and ordinary inspection. Hence,- where asphalt blocks manufactured for paving a certain street were not properly compressed so that they crumbled when put into use, the implied warranty survives the acceptance of the goods if the defect was not discoverable upon inspection, and it was not customary to test the specific gravity of the blocks, the only means by which the defect could have been discovered.</p> <p>An undisclosed principal suing for the breach of an implied warranty as to the quality of goods sold need not allege the agency through which the sale was effected.</p>

Appeal by the defendants John Williams and others from a judgment of the Supreme Court, and cross-appeals by the defendants American Radiator. Company and others from parts of said judgment, entered in the office of 'the clerk of the county of Kings on the 6th day of December, 1907, upon the decision of the court rendered after a trial at the Kings County Special .Term.

<p>Appeal .by the defendant, the Helvetia Swiss Fire Insurance Company of St. Gall, Switzerland, 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 18th day of November, 1909, denying the defendant’s motion to vacate the service of the summons herein.</p>

<p>Appeal by the plaintiff, .Swift & Company, 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 7th day of April, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, the verdict of a jury in favor of the plaintiff being set aside, and also from an order entered in said clerk’s office on the 10th day of April, 1909-, granting the defendant’s motion to set aside the verdict of the jury.</p>

Appeal by the plaintiff, Gouverneur Village, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in tlie office of the clerk'of the county of St, Lawrence on the 2d day of April, 1909, upon the decision of the court, rendered after a trial at the Washington Special Term, overruling the plaintiff’s demurrer to tile, first defense set up in the defendant’s answer.

<p>Appeal by The People of the State of New York through the district attorney of Tioga county, from an order of the county judge of Tioga county, entered in the office of the clerk of said county on the 16th day of November, 1908, releasing George H. Goff from imprisonment upon a writ of habeas corpus.</p> <p>The State Commissioner of Health pursuant to section 70 of the Public Health Law promulgated a rule for the protection from contamination of the public water supply in the village of Waverly, which provided that the public reservoirs shall not be u,sed to supply ice for public or private purposes, and teams, cattle or men shall not enter upon the pond in winter for the purpose of cutting or removing and storing ice.</p>

<p>Appeal by the defendant, L. Frank Lake, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 15th day of May, 1909, upon an order entered in said clerk’s office on the same day granting judgment on the pleadings, and also from the said order pursuant to which such judgment.was entered..</p> <p>Plaintiff brings this action in equity against her former husband, against whom she has procured a judgment of divorce, to have vacated and declared null and void a contract executed between them pending the action for divorce. The contract is' set forth in full in the complaint and is admitted by the defendant. After reciting that differences existed between the parties by réason whereof they were living separate and apart from each other, and that the plaintiff had on the same day when the contract was executed commenced an action for divorce, it provided that the defendant would permit his wife to reside where she might elect, and would not make any claim to her services or society or property; that the plaintiff would not make any claim to any property which the defendant then might have or might thereafter acquire; that-she would accept the provisions of the contract in full satisfaction of all claims against the defendant, past, present and future; that she would make no claim, “ either before or after judgment, for attorney fees, counsel fees, alimony or support in any. action pending ” or that might be thereafter brought for divorce or separation; that she should have as her own property certain specified household furniture; that the defendant should pay the sum of $2,000 in full satisfaction of the matters mentioned in the contract, and provision was therein made whereby said amount was to'be held and retained until a judgment of divorce should be entered, and immediately upon the entry .thereof paid to the plaintiff. Subsequent to the execution of this contract a judgment of divorce was procured. It appears, also,, both from- the complaint and the answer, that the contract has been fully executed by payment to plaintiff of the entire consideration thereof..</p> <p>At the trial of this action the court directed a judgment on the pleadings in favor of plaintiff on the ground that it appeared therefrom that the contract was executed for the purpose of procuring a divorce, and was for that reason void as against public policy.</p>

Appeal by tiie defendant, the American Carbide Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the ,17th day of May, 1909, upon the verdict of a. jury for $1,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Henry H. Fisher, from a judgment of the County Court of Ulster county, rendered on the 21st day of ^November, 1908, convicting the defendant of the crime of arson in the second degree, and also from an order entered in the office of the clerk of said county on the 21st day of December, 1908, denying the defendant’s motion for a new trial.</p>

Appeal by the plaintiff, Viola H. Ferry, and the defendants Solomon Williams and others, from an interlocutory judgment of the Supreme Court in favor of the defendants Sarah Green and others, entered in the office of the cleric of the county of Saratoga on the 9th day of April, 1909, upon the decision of the court rendered after atrial before the court without a jury at the Saratoga Trial Term. '

<p>Decedents’ estates—contract — claim against estate — alleged promise of decedent in compromise of suit — insufficient evidence.</p> <p>When claims are presented against decedents’ estates, the courts will scrutinize sharply testimony as to transactions long past and will require a high degree of probability to establish obligations made out chiefly by statements in the form of admissions, which are easily capable of being misunderstood.</p> <p>Action against an executor to recover sums unpaid on an alleged contract made by his testatrix to compromise a suit threatened by her sister, the plaintiffs intestate, to set aside certain transfers of real estate to testatrix. It appeared that certain sums had been paid to plaintiffs intestate by testatrix, but defendant claimed the payments were a pure gratuity. Evidence of the alleged contract examined, and held, insufficient to support a- verdict for the plaintiff.</p>

<p>Appeal by the plaintiffs, Henry Willard. Bean and others,- as reorganization committee, etc., from, an order of the Supreme Court, made at the Broome Special Term and entered in "the office of the clerk of the county of Otsego on the 7tli day of September, 19.09,-granting a motion for a reárgument and vacating in part an injunction order theretofore made herein. ", .</p> <p>This actio.n is brought to construe á trust deed dated . June 25, 1906, and an agreement dated April 7, 1908, executed between the parties hereto, and to enjoin the defendant from doing anything in violation of what is claimed to be its trust obligation, and to" compel the -return to the plaintiffs of certain property if the trust shall be declared by the .court, to have been terminated. The plaintiffs are a committee of a majority of the first mortgage bondholders of the Oneonta, Cooperstown and Richfield Springs Railway Company. Upon the foreclosure of that mortgage the property was-bid in by the Oneonta and Mohawk Valley Railroad Company; which was a corporation organized for the purp'osé of takingsaid property by this committee. The amount bid was $900,000-. The property was taken subject to the prior lien, if any, of receiver’s certificates aggregating $250,000, which had been issued by the receiver under the order of the court prior to the sale in foreclosure'. These receiver’s certificates were held by the Rochester Trust Company and amounted with interestto about $325,000. After the foreclosure these certificates were sought to be foreclosed by the. Rochester Trust.Company, which procured a judgment of foreclosure from the Special Term, which. judgment was affirmed in this court.. (Rochester Trust & Safe Deposit Co. v. O., C. & R. S. R. Co., 122 App. Div. 193.) An appeal was then taken to the Court of Appeals. After the Oneonta and Mohawk Valley Railroad Company had bid off this property and taken possession, nearly $200,000 was expended in additional rights of way and in betterments to the road, and .nearly $300,000 in the acquirement of a water power at Colliers, which is called the Hydro-Electric plant. Also preferred claims against the company had been purchased by the committee to the amount of $31,000. Neither these preferred claims nor the title deeds of the HydroElectric Company had ever been transferred to the' defendant, although the defendant furnished the consideration therefor. In this situation it apparently occurred to the Oneonta and Mohawk Valley Railroad Company that their bid for the property was too large, and they failed to complete their bid and entered into the agreement of April 7,1908, which is the agreement it is here sought to have construed. This agreement recites: The appointment of the plaintiffs as committee of the first mortgage bondholders for the Oneonta, Cooperstown and Richfield Springs Railway Company; that the said bondholders have borrowed from the Colonial Trust Company, which is the predecessor of the defendant and legally identical therewith, the- sum of $554,500 and had made further advances of $38,457.15; that for the purpose of securing the said moneys so borrowed the said committee had deposited with the said trust company 17,850 shares of the capital stock' and $1,300,000 par value of the bonds of the Oneonta and Mohawk Valley Railroad Company. It recites default in the payment of-said loans and proper demand, and the request by the committee not to foreclose its lien upon the pledged securities and contains the following obligations:</p> <p>First. The property of the Hydro-Electric Company should be transferred to a corporation to be organized to be called the Susquehanna River Power Company, for which the committee were to receive $200,000 par value of full-paid capital stock of said power company.</p> <p>Second. The stock so issued should be delivered' to the defendant as additional security for the loans already made and for those to be made under the agreement.</p> <p>Third. The trust company was given the power of ownership over said stock for any necessary purpose.</p> <p>Fourth. If, in its unrestricted discretion such course should be necessary and advisable, the trust company should use its best efforts to procure a sale of the property and franchises of the Oneonta and Moliawlc Valley Railroad Company, either under the judgment of foreclosure and sale obtained in the pending action wherein Knickerbocker Trust-Company, trustee, was plaintiff, and the Oneonta, Cooperstown and Richfield - Springs Railway Conk pany and others were defendants* or under the judgment of foreclosure and sale in the pending action wherein the Rochester Trust Company was plaintiff and the Oneonta and Mohawk Valley Railroad Company and others were defendants, or under both of said judgments, “the Trust Company reserving to itself the exclusive right to determine, under the advice of counsel, which method of procedure shall be adopted, the most effective method for carrying out any method of procedure that may be adopted, or the alternative right to' proceed without a sale under paragraph Ninth hereof, or in accordance with any other, plan which may in the discretion of the Trust Company be deemed necessary or advisable.”</p> <p>Fifth. For the purpose of carrying out the agreement-it was provided that the committee should procure a substitution of counsel in the Rochester Trust Company case, or in the alternative a withdrawal of the appeal to the Court of Appeals from the judgment entered in said action.</p> <p>Sixth. The provision was therein made for the transfer to the •company of $31,240.17 of preferred claims theretofore purchased by the committee.</p> <p>Seventh. “The Trust Company undertakes to become a bidder at' any sale of the property, that may be ordered, and to become the purchaser of the property, if the same can be purchased at a reasonable figure, the Trust Company reserving to itself the unrestricted right to determine the amount of the maximum bid to be made by it.”.</p> <p>Eighth. Provision was made in-case of purchase for a mortgage to be issued upon the Susquehanna Power Company for the purpose of paying the Rochester Trust Company.</p> <p>The 9th, 10th, 11th, and 12th paragraphs provide for a contingency of a reorganization and the details for action thereupon. The 13th paragraph read as follows:</p> <p>“ This agreement shall continue in full force and effect until the plan of reorganization herein contemplated shall have been carried out, or until it shall have become apparent to the Trust Company, in its unrestricted discretion, that the Plan of Reorganization herein contemplated cannot be carried out, in which event the Trust Company shall give the Committee thirty days’ written notice, that it intends to abandon the Plan of Reorganization, and at the expiration of thirty days after said written notice shall have been given the parties hereto shall be relegated to their present respective positions of pledgors and pledgees.”</p> <p>Thereafter the defendant purchased the Rochester Trust Company judgment for upwards of $300,000. The title deeds of the Hydro-Electric Company were held by the First Rational Bank of Cooperstown as collateral to a note of upwards of $18,000. This note was paid; the Susquehanna River Power Company was formed; stock issued to the committee, and the committee transferred the stock to this defendant in pursuance of the aforesaid' agreement. One hundred thousand dollars was paid out for the purchase of additional rights of flowage incidental to the Hydro-Electric plant, and for the purchase of the pole line connecting said plant with the said railroad, so that this defendant had advanced upon these properties about $1,000,000. Default having been made in the completion of the bid of the Oneonta and Mohawk Valley Railroad Company, the defendant under the power contained in this contract chose to allow a resale of the property under the original foreclosure judgment Obtained by the Knickerbocker Trust Company. Under the terms of the original sale the property could not be bid except at a minimum bid of $200,000. Upon that resale the property was purchased by one Starrett, who represented in fact the minority bondholders, while the plaintiffs as the committee represented the majority bondholders under the first mortgage bonds secured by the mortgage to the Knickerbocker Trust Company. Thereafter the defendant gave notice to the committee under subdivision 13 of the aforesaid agreement that it intended to abandon the plan of reorganization. This notice was dated March 2, 1909. To this the plaintiffs responded, protesting that the defendant had no right to abandon the plan of reorganization without the return of the securities which were received at the time of the making- of the contract. This action was then brought and a preliminary injunction granted by Mr.. Justice Lyok as before stated. Thereafter, and in June, 1909, the defendant served its answer. As a separate defense in that answer 'it alleged that on the 25th of May, 1909, the defendant obtained an option to purchase the property of the Oneonta, Cooperstown and Richfield Springs Railway Company bid in by one Starrett at a resale thereof held at the village of Cooperstown in the county of Otsego on the. 3d day of October, 1908, and granted to the plaintiffs the option to acquire said property as well as the property covered by the mortgage of the'Oneonta and Mohawk Valley Railroad Company and the Hydro-Electric development at' Colliers, at any time, within ninety days from the 1st day of June, 1909, at and for a sum equal to the face amount of the said Starrett’s bid, plus the amount of the advances made to the plaintiffs or to be made to the plaintiffs by . the defendant, together with interest thereon at the rate of six per cent per annum from the dates of the several advances, and the defendant further offered to loan to the plaintiffs the money necessary to exercise said option upon the .terms of a certain letter “theretofore sent on April 9, 1908. This option was declined. After the service of said answer application was made to modify the preliminary injunction, and the same was modified by permitting the sale.of the stock and bonds of the Oneonta and Mohawk Valley Railroad Company. It is from this order of modification that the appeal is taken.</p>

<p>Principal and agent—when corporation holding trust mortgage liable for false representations of officer — purchase of bonds induced by representation that mortgage was first lien—party — suit by trustee of express trust — measure of damages.</p> <p>A corporation which is trustee of a mortgage securing bonds which upon their face refer to the mortgage for a statement of the nature of the security, is liable for the act of its vice-president in inducing a person to purchase bonds by falsely-stating that the mortgage was a first lien when in fact there was a prior mortgage under which the property was subsequently sold, leaving, no surplus subject to the lien of the second mortgage.</p> <p>Where bonds purchased with partnership funds are registered in the name of one partner, he becomes a trustee of an express trust within the meaning of section 449 of the Code of Civil Procedure and may maintain an action thereon without joining his copartner as a party plaintiff.</p> <p>The measure of damages in such action must be determined by treating the representation that the mortgage was- a first lien as, true, and where the actual value of the property supposed to be .covered by the mortgage was less than the face value of the bonds issued, the purchaser is entitled to recover only that portion of the actual value of the property represented by the number of bonds purchased by him, with interest.</p>

Appeal by the plaintiff, Maynard FT. Clement, as State Commissioner of Excise, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the 26th day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of February, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 7th day of October, 1908, upon the verdict of a jury for $3,500, and also from an order bearing date the 5tll day of October, 1908, and entered in- said clerk’s office, denying •the defendant’s motion for a new trial made upon the minutes.

<p>Practice — default in pleading — service of unverified answer — opening default. .</p> <p>Where, after various extensions of time to answer a verified complaint, the defendant served an unverified answer which was return'ed, the default should not be opened with, permission to answer without proof that there is a meritorious defense. " '</p>

<p>Appeal by the defendants, Samuel Klar and another, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Schenectady on the 13th day of September, 1909, denying the defendants’ motion to change the place of trial.</p>

<p>Bills and' notes — note marked “Hot transferrable”— when maker not. liable to transferee — facts not showing negligence or fraud.</p> <p>One who takes negotiable -paper is bound by any agreement written upon the instrument! Thus, he is bound by- a written statement that the note is “ not transferrable.”</p> <p>One who buys a note marked not transferrable ” can recover against the maker only upon the ground- that he was guilty of fraud or negligence in making the words too small to be legible.</p> <p>Evidence examined, and held', that • a .finding that the maker was not.guilty of fraud or negligence in writing the words “ not transferable ” was justified.</p> <p>Kellogg and Sewell, JJ., dissented, with opinion.</p>

<p>Agricultural association—injury to spectator at fair—independent contractor—failure, of association conducting fair to provide safe place.</p> <p>An agricultural society holding a fair which sells tickets admitting spectators to all parts of the grounds may .be held liable for injuries caused to a spectator by an independent contractor exhibiting a balloon ascension, if the injury was attributable to its negligence in failing to provide a safe place in which to watch the ascension.</p> <p>^Evidence in an action brought to' recover damages for injuries received by a spectator at a fair who was caught and carried into the air by an ascending balloon operated by an independent contractor, examined, and held, to justify a judgment for the plaintiff based on a finding that the association conducting the fair had failed to provide a safe place from which to see the exhibition.</p>

<p>Appeal by the defendant, the Union Bag and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington, on the 19th day of May, 1909, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 9th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Simon Bishop, from' a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the lYth day of February, 1909, upon the decision of the court rendered after a trial at the Warren Special Term in the above entitled foreclosure action.

Appeal by the plaintiff, Eva Hebert, by George A. Rice, her guardian ad litem, from, a judgment of the Supreme Court-in favor of the defendant, entered in the office of the clerk of the county of Saratoga, on the 27th 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 Saratoga Trial Term.

.Appeal by the plaintiff, Joseph Makoski, as .administrator, etc., from a judgment of the Supreme Court in favor of .the defendant, entered in the office of the clerk of the county of Saratoga on the 26th day of February, 1909, upon a verdict of no cause of' action rendered by direction of the court, and also from ah order entered in said clerk’s office on the 25th day of February, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the .defendants, Robert Dunlop and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 21st day of May, 1909, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling the defendants’ demurrers to the complaint, alleging : (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that causes of…

Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the County Court of Ulster county in favor of the plaintiff, entered in the office of the cleric of said •county on the 24th day of July, 1909, upon the decision of the court, the case having been taken from the jury. By the judgment the plaintiff recovered upon a life insurance policy upon the life of Julia Yandermark, payable to her estate.

Certiorari issued out of the Supreme Court and attested on the 10th day of August, 1908, directed to The City of Schenectady, commanding it to certify and return to the office of the clerk of the county of Schenectady all and singular the proceedings had in the matter of assessing the relators for a local improvement.

Appeal by the defendant, Webster Bailey, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 27th day of April, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of Hay, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Evidence — admission in pleading superseded by amended pleading — pleading — action against president of unincorporated association — admissions.</p> <p>An admission of fact in an original pleading does not lose its effect as an admission because the pleading has been superseded by an amended pleading.</p> <p>Where the complaint in an action under section 1919 of the Code of Civil Procedure against the president of an unincorporated association consisting of more than seven members _does not allege that all the members are jointly or severally liable for the claim, an answer which admits that the association is ' unincorporated, consists of more than seven members, and that the association-is indebted for part of the claim, does not admit that the members are jointly or severally liable so as- to entitle the plaintiff to judgment.</p> <p>Moreover, where such admission was made by the attorney of the association without its knowledge, it is error to exclude his testimony showing the circumstances under which the admission was made and that it was made merely as a matter of form without information as to its truth in order to raise a legal question.</p>

Appeal by the defendant, the Hudson Eiver Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the '21st day of ¡November, 1908, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 10th day of December, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal b.y the plaintiff, Albert Mott, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 7th day of June* 1909, upon the report of a referee.</p>

Appeal by the defendant, Lucian L. Nunn, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 27th day of September, 1909, denying the defendant’s motion to vacate a warrant of attachment.

Appeal by the defendants, .The Otselic Valley Railroad ¡Company and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of -the county of Madison on the 20th day of July, 1908, upon the decision of the court rendered after a trial at the Madison Special Term. The action was brought to foreclose a mechanic’s lien upon certain rights of way owned by the railroad company.

Certiorari issued out of the Supreme Court and attested on the 6th day of Hovember, 1909, directed to William H. Hotchkiss, as Superintendent of Insurance of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to his denial of the relator’s application to purchase lands to be used as a hospital for the care and treatment of its employees who are afflicted with…

Cross-appeals by the relator, The Third Avenue Railroad Company, and the defendant, State Board of Tax Commissioners, and by the City of New York, from a final order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the'4th day of November, 1908, modifying and confirming as modified the assessment of a special franchise tax against the relator’s property made by the State Board of Tax Commissioners.

Appeal, by the defendant, Daniel W. Coon, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 3d day of September, 1909,. denying the said defendant’s motion to strike out certain portions of the -complaint as irrelevant. and redundant..

<p>Ceetiobabi issued out of the-Supreme Court and attested on the ,24th day of August, 1909, directed to Charles II.. Gaus, as Comptroller of the State of Hew York, commanding him to certify and return to the office of the clei'k of the county of Albany all and singular his proceedings had in refusing to resettle a franchise' tax imposed upon the relator.</p>

Ceetioeaei issued out of the Supreme Court and attested on the 5th day of October, 1905, directed to the 'board of town auditors of the town of Horicon, Warren county, H. Y., and the several persons composing the said board, directing them to certify and return to the office of the clerk of the county of Warren all and singular their proceedings had in disallowing and rejecting the claim of the relator.

Appeal, by the defendant,. Fred E. Piirdy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 21st day of November, 1908, 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' motio'n for a new'trial made, upon the minutes.,

Appeal by the plaintiff, William H. McFarland, as sole adminis trator, etc., from a judgment of the Supreme Court in favor of the defendant,. entered in the office of the clerk of the county of Chemung on the 2d day of February, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Chemung Trial Term.

Appeal by the defendant, Joseph May, from a judgment of the County Court of Tompkins county, entered in the office of the clerk of said county on the 25th day of January, 1909, upon the verdict of a jury in favor of the plaintiff, and also from an order entered in said clerk’s office on the 12th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the. Cohoes Railway Company, from. a. judgment of the Supreme. Court in favor of the plaintiff and against, said defendant,, entered in the. office, of the clerk of the county of Rensselaer on the 1st day of June, 1909,. upon, the verdict of a jury for $1^,000, and also from an order entered in said clerk’s office on the 3d day of June, 1909, denying the. said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Rochester Railway Company, from ' a judgment of the Supreme Court in favor of the plaintiff, entered ' in the office of the clerk of the county of Monroe on the 3d day of August, 1909, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Roebling 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 Monroe on the 20th day of February, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, the Geneva-Seneca Electric Company, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ontario on the 22d day of January, 1909, upon the decision of the court rendered after a trial at the Monroe Special Term sustaining the defendants’ separate demurrers to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

. Appeal- by the defendant, Gharles Albert, from a judgment- of the County Court of Erie county in favor, of the -plaintiff,, rendered on the 16th day of March, 1908,. upon the verdict of a jury convicting the defendant of violating section 351 of the Penal Code, in feloniously keeping and occupying . a room in the city of , Buffalo with devices, books,, papers, apparatus and. paraphernalia for the purpose of recording and registering bets and wagers.

Appeal by the defendant, Harold G. Meadows, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 9tli day of March, 1909, after a trial at the Erie Trial Term, convicting the defendant of the crime of grand larceny in the first degree, and also from orders denying the defendant’s motions for a new trial and in arrest of judgment.

Appeal by the defendants, William J. Muckle 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 Monroe on the 9th day of April, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the said defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Frank FT. Wright and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 18th day of February, 1909, upon the decision of the court, rendered after a trial at the Ontario Special Term, adjudging to be null and void a certain' conveyance and transfer of property.</p>

Appeal by thé plaintiffs, George L. Boardman and others, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Wayne on the 24th day of April, 1909, upon the decision of the court, rendered after a trial at the Wayne Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, James 0. Tabor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 28th day of January, 1909, upon the verdict of a jury of no cause of action, 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.

<p>Practice — new trial — newly-discovered evidence after affirmance by Appellate Division — conditions — appeal — presumption — appointment of new referee.</p> <p>The court may grant a new trial on the grounds of newly-discovéred evidence, although the judgment on a first trial has been affirmed by the Appellate Division.</p> <p>But where, after an affirmance of judgment for the defendant, a new trial is granted on the ground of newly-discovered evidence, it should be on the condition that the plaintiff pay costs and disbursements of the first trial and of the appeal therefrom, with costs of the motion for the new trial.</p> <p>It will he assumed by the Appellate Division that it was proper for the court to appoint a new referee as required by section 1011 of the Code of Civil Procedure on granting a new trial for newly-discovered evidence if the record does not show that there was any stipulation expressly providing otherwise.</p> <p>McLennan, P. J., dissented.</p>

<p>Appeal by the plaintiff, Hiram E. Wanamaker,. from a judgment of the Supreme .Court in. favor of the defendant, entered in the office of .the clerk of the county of Onondaga on the 30th day of April, 1909, upon the dismissal of the' complaint by' direction of the court on the opening- upon a trial at the Onondaga Trial Term, and also from an order made on the 12tli day of April, 1909, directing' the dismissal of the complaint.</p>

Appeal by the defendant, the L. K. Hirsch Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 16th. day of February, 1909, upon the report of a referee. .

Appeal by the defendants, The Delaware, Lackawanna and Western Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 10th day of November, 1908, upon the decision of the court rendered after atrial at the Erie Special Term, among other things, restraining-the defendants from building a certain fixed bridge.

■ Appeal'by tbe plaintiff, Michael Herman, from a. judgment of the Supreme Court in fayor of the defendant,, entered, in the office of the-clerk of the county of Oswego on the 31st day of October, 1908, upon the dismissal of the complaint by direction ,of the court after a trial at the Oswego Trial Term, certain questions of fact having been submitted.to the jury.

Appeal by James McManus from a judgment of the- County Court, of Steuben county in favbr of the plaintiff, entered in the office of the clerk of said county on the 16th day of November, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order denying the appellant’s motion to set aside the verdict and for a new trial.

Appeal by Frank J. Maher from an order of the Supreme Court, made at an adjourned term of the Cattaraugus Special Term and entered in the office of the clerk of the county of Wyoming on- the 14th day of June, 1909, denying the appellant’s motion to dismiss the complaint and to vacate and set aside a warrant issued herein and a seizure made under said warrant.

Appeal by the defendant, Putherford W. Kathan, from a judgment of the Supreme Court, rendered against the defendant On .the 27th day of April, 1909, after atrial at the Kings County Trial Term, upon the verdict of a jury, convicting him of the crime of bribery. ■

Appeal by the. defendant, Waterbury Company (sued herein as Waterbury & Company), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of April, 1909, upon the verdict of a jury for $7,000; and also from an order entered in said clerk’s office on the 26th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William H. Holdsworth and another, 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 clerk of the county of Kings on the 8th day of December, 1908, upon the verdict of á jury for $30,000, and also from an order entered in said clerk’s.office on the 14th day of December, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the New York, New Haven and Hartford 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 6th day of May, 1909, upon the verdict of a jury for $10,000, and also from an order entered in - said clerk’s office on the 21st day'of May, 1909, denying the defendant’s motion for a new trial made upon the minutes.'

Appeal by the defendants, Edward F. Lathrop and another, from a judgment of the Supreme Court in favor of the plaintiff against the said defendants (the complaint having been dismissed by the court as to the defendant railroad company), entered in the office of the clerk of the county of Westchester on the 20th day of July, 1909, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 23d day of July, 1909, denying the said…

. Appeal by the defendant, the Brooklyn, Queens County and Suburban Baüroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of' the plaintiff, rendered on the 12th day of March, 1909, and also from an order denying the defendant’s motion for a new trial.,

Appeal by the defendant, The Delaware, Lackawanna and Western 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 17th day of June, 1909, upon the verdict of a jury for $800, rendered by direction of. the court, and also from an order entered in said clerk’s office on .the 17th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William H. Woolverton, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of June, 1909, pursuant to an order entered in said clerk’s office on the 19th day of May, 1909, which set aside the verdict of a jury rendered by direction of the court subject to the opinion of the court; also from an order entered in said clerk’s office on the 27th day…

Appeal by the plaintiff, Andrew Glum, 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 26tli day of October, 190.9, granting the defendant’s motion for a bill of particulars in a negligence action.

Exceptions ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term on the 25th day of January, 1909.

Appeal by the defendants, Frederick Morgenthaler- 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 6th day of April, 1909, upon the decision of the court rendered after a trial at the Queens County Special Term.

<p>Appeal by the defendant, John A. Casey Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the offieéofthe clerk of the county of Kings on the 29th day of April, 1909, upon the verdict of a jury for $6,000, and also' from an order entered.in said clerk’s office on the 26th day of March, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal, in each of the above-entitled actions, by. the defendant, John Boyle and Company, Incorporated, from a judgment of the •Supreme Court in favor of the plaintiffs in each case, entered in the office of the clerk of the county of Kings on the 13th day of October, 1909, upon the decision of the court rendered after a trial at.the Kings County Special Term.

<p>Railroad — negligence — when verdict conclusive — credibility of witnesses — íailuré to move for direction of verdict — when verdict, should not be set aside. . .</p> <p>Where in an action to recover for the death of plaintiff’s intestate it appears that he was a passenger upon- one of defendant’s cars at midnight; that an hour and a half later he was found in the street severely injured and died the same day, and the evidence is conflicting as to how the injuries were received, a verdict in iavor of the defendant should not be set aside as against the weight of evidence, unless it can- be plainly seen that the preponderance in favor of plaintiff was so-great that the jury could not' have reached the conclusion they did upon any fair interpretation of the evidence.</p> <p>Where the right to a verdict depends upon .the' credibility of witnesses and the testimony is neither incredible nor insufficient as a matter of law, the finding of the jury is conclusive.</p> <p>Plaintiff by failing to move for the direction of a verdict conceded that the evidence presented a question for the jury.</p>

Appeal by the plaintiff, Barnet Waldman, from a judgment of the Municipal Court of the city of Sew York in favor of the defendant, rendered on the 21st day of October, 1908.

Appeal by the plaintiff, James Francis O’Hara, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17tli day of March, 1909, upon the report of a referee dismissing the complaint in an action for an absolute divorce. '

Appeal by the defendant, the Byron W. Greene, Jr., 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 Westchester on the 8th day of November, 1909, as resettled by an order entered on the 17 th day of November, 1909, denying thé defendant’s motion for leave to serve a supplemental answer.

<p>Debtor and creditor — fraudulent conveyances — intent of grantee — e payment of debts due relatives.</p> <p>A grantee cannot be charged with an intent to aid in defrauding creditors of his grantor merely because at a time of financial depression and when the grantor was in straitened circumstances he bought the land for cash at less than its value.</p> <p>While the payment of an alleged indebtedness to relatives or near friends by a person in failing circumstances justifies an inference of fraud and requires close scrutiny, there is no legal objection to a payment to such person if he be a creditor.</p> <p>Where a person in straightened financial circumstances, who subsequently went into voluntary bankruptcy, conveyed land subject to mortgages to a relative for one..dollar, and the grantee conveyed to his mother for the same consideration and she subsequently sold the premises so as to realize $1,200 over and above the mortgages, she will be compelled, at the suit of the trustee of the original grantor, to account for the proceeds of the sale. .</p>

Appeal by the defendant, Fred J. Davis, 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 22d day of May, 1909, upon the verdict of a jury for $275, and also from an order entered in said clerk’s office on the 17th day of May, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Herbert W. Hanan, from,a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Kings on the 25th day of June, 1909, upon the report of a referee.</p>

Appeal by the defendants, the New York, New Haven and Hartford Bailroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of January, 1909, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Trial Terrain an action of ejectment.

Appeal by the plaintiff, Arthur 0. Platt, 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 28tli day of June,. 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 Westchester Trial Term, and also from an order entered in said clerk’s office on the 2Tth day of May, 1909, denying the plaintiff’s motion for a new trial…

Appeal by the relator, Alden S. Swan, 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 l'9th day of October, 1909, as resettled by an order entered on the 16th day of .November, 1909, denying the relator’s motion .for a peremptory writ of mandamus.

<p>Judgment—modification — variance with, findings.</p> <p>A judgment foreclosing a mechanic’s lien based on findings showing that the plaintiff is entitled to recover a certain amount cannot, on the denial of a motion to vacate the judgment, be modified'.by reducing the amount unless new findings be made justifying the modification. A judgment must conform to the findings.</p>

<p>Reargument of an appeal by the plaintiffs, Frederick W. Wurster and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of thé clerk of the county of Kings on the 12th day of December, 1908, "denying the plaintiffs’ motion to continue pendente lite a temporary injunction.</p> <p>. Reargument of this appeal was ordered in Wurster v. City of New York (134 App. Div. 947).</p> <p>Order affirmed on reargument, with ten dollars costs and' disbursements, on the opinion of Mr. Justice Blackmar at Special Term. \. •</p>

Appeal by-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 5tli day of Hovember, 1909, discharging the relator from custody upon a writ of habeas corpus.'

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 10th day of June, 1909, upon the verdict of a jury for $2,000, and also from an order- entered in said clerk’s office on the 9th day of June, 1909, denying the ..defendants’ motion for a hew trial made upon the minutes.

Appeal by the defendants, Charles Haines,'individually, and as guardian, etc., and others, from an order of the Supreme Court, made at the Hew York Special Term, bearing date the 8th day of • December, 1909, and entered in the office of the clerk of the county of Hew York denying the said defendants’ motion to dismiss the action for want of prosecution.

Cross-appeals by the plaintiff, Selhnar M. Jacoby, doing business under the firm name, etc., and the defendant, Emile James, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New..York on the 22d day of September, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling ¡the plaintiff’s demurrer to two defenses set forth in the defendant’s answer, and sustaining a demurrer as…

Appeal by the defendant, Anthony Kelly, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 14th day of May, 1909, affirming a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, in favor of tbe plaintiff, entered on the 29th day of October, 1908, in an action to recover damages for trespass. •

Certiorari issued out of the Supreme Court and attested on the 23d day of Movembér, 1909, directed to William E. Stillings, chairman, and .others, commissioners, etc., directing them to certify and return to the office of the clerk of the county of Mew York all and singular their proceedings had in respect to certain claims for damages, in so far as the same relate to the respondents’ failure to allow interest as claimed.

Appeal by the defendant, George F. Lowe, 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 30th day of April, 1909, upon the yerdiet of a jury, and also from a,n order, entered in said clerk’s office on the 28th day of April, 1909, denying the defendant’s motion for a new trial made, upon the minutes. .

<p>Appeal by David Peltz and David Levinson, claimants, from an order of the Supreme Court, made at the New Yorlc Special Term and entered in the office of .the clerk of the county of New York on the 2d day of August, 1909, confirming the report of a referee.</p>

Appeal by the defendant, Charles W. Aschenbach 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 30th day of Hovember, 1909.

Appeal by the' plaintiff, Alfred ,W. Durante, 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 -5th day of March, 1909, affirming a judgment of the Oity Court óf the -city ¡of ¡New York in favor of the defendants, entered i-n the .office .of the ¡clerk of said court on the 11th day of November, 1908, and also affirming an order of the said City Court denying the plaintiff’s motion for a new trial,…

<p>Application to strike the name of the respondent from tire :ro!l of attorneys and counselors at law. ■</p>

<p>Motion to allow a notice of appeal to be served upon the attorney for the relator.</p>

Appeal by the defendants, George H. Calvert and another, as ancillary receivers, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of December, 1909, as amended by an order entered on the 28th day of December, 1909, granting upon terms the said defendants’ motion to cancel a Us pendens herein, and also from an order entered in said clerk’s office on the loth day of…

Appeal by the defendant, Anna Heins, as administratrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of .the clerk of the county of Hew York on the 23d day of March, 1909, upon the verdict of a jury, also from an order entered in said clerk’s office on the 28th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 9th day of February, 1909, granting the…

. Appeal by the defendants, Theodore W. Morris and others, 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 clerk of the county of Mew York on the 1st day of June, 1909, upon the verdict of a jury for $9,500, and also from an order entered in said dork’s office'on the 9th day of June, 1909, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles E. Bulkley, 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 5th day of November, 1909, granting the defendant’s motion to amend a .notice of appeal to the Court of Appeals and for leave to file and serve a new undertaking on. the appeal to said court.

Appeal by the defendant,' The Edelmeyer and Morgan Hod Elevator 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 27-th day of April, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 28th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Cornelius G. Coakley, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1909, vacating a warrant of' attachment theretofore.issued herein.

Appeal by the defendant, Walter J. Clarke, 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 30th day of June, 1909, upon: the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Alice R. Wyckoff, 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 19th day of April, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Ferdinand Sulzberger, from a j.udgof the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Flew 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 6tli day of April, 1909, as resettled by an order entered on the 19th day of April, 1909, denying the defendant’s motion for á new trial made upon the minutes.

Appeal by the plaintiff, The City of' New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office Of the clerk of the county of New York on the 12th day of June, 1909, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 25th day of June, 1909, denying the plaintiff’s motion for a new trial made upon the minutes. -

Appeal by the defendant, Andrew Mowbray, 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 27th day of December, 1909, denying the defendant’s motion to amend a final judgment of divorce herein.

Appeal by George Hoffman, individually and as administrator, etc., and another, from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on- the 7th day of June, 1909, settling the accounts of the said administrator.

<p>Appeal by Katharine Schnabel, as administratrix, etc,, from parts of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 2d day of October, 1907, modifying and, as modified, confirming the report óf' a referee and settling the accounts of the said administratrix.</p>

Appeal by the defendant, Samuel M. Biddison, from a judgment of the Court of General Sessions of the Peace in and for the county of New York in favor of the plaintiff, rendered on the 6th day of April, 1909, convicting the defendant of the crime of forgery in the first degree, and also from an order denying his motions for a new trial and in arrest of judgment.

Appeal by the. defendants, Martin Herman and another, from a judgment of the Supreme Court in favor of the plaintiff, entered iii the office of the clerk of the county of Hew York on the 30th day of June, 1909, upon the verdict of a jury for $2,000, reduced by the court to $1,333.33, and also from an order entered in said clerk’s office on the 30th day of June, 1909, denying the defendants’ motion for a new trial made upon the minutes. •

<p>Master and servant — negligence—when employee of railroad servant of independent contractor—negligence of fellow-servant.</p> <p>An employee of a railroad company assigned by it to assist an independent contractor installing a signal system in order to learn its operation is, for the time being, a servant of the contractor and cannot recover for injuries received by reason of the negligence of the contractor’s servant.</p>

Appeal by the defendant, Alfred Beinhauer, 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 29th day of January, 1909, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 3d day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Lucius H. Beers and another, as trustees, etc., from so much of an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the. clerk of the county of Mew York on'the 10th day of January, 1910, as denies the motion of the said trustees for an order directing the comptroller of the city of Mew York to pay interest on an award. ■ ■

Appeal by the petitioners, Austin Flint 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 8th day of November, 1909, denying the appellants’; motion to compel an attorney to pay a certain sum to each of them for their, services herein.

Appeal by the plaintiff, Charles Flansburg, from an order of the Supreme Court, made at the ¡New York Trial Term and entered in the office of the clerk of the county of ¡New York on the 27th day of January, 1909, setting aside the verdict of a jury in favor of the plaintiff for $5,500, and granting the defendant’s motion to dismiss the complaint made at the close of the evidence, upon which the court reserved decision until the coming in of the verdict, and also (as stated…

Appeal by {be plaintiffs, Frances G. Duryea and .others, as executors, etc., from á judgment of the Supreme Court in favor of; the defendants, entered in the office of the' cleric of the county of Hew York ou the 20th day -of February, 1969,. upon the verdict.of á jury, also from an order entered. in .said clerk’s office on thb. same ■ day denying the plaintiffs’ motion for a new trial, made upon the minutes, and also from an order entered on the 16th day of March, 1909,…

Appeal by the plaintiff, William Prym, 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 31st day of December, 1909, resettling an order granting a bill of particulars.

Appeal by the plaintiff, Paul T. Kenny, from a judgment of the Supreme Court in favor of the defendant, entered in the office pf the clerk of the county of New York on the 16th day of February, 1909, upon the decision of the court rendered after a trial at the New York Trial Term, the jury having been discharged, dismissing the complaint upon the.merits;

Appeal by the plaintiff, The Staten Island Rapid Transit Railway Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Rew York on the ,6th day of July, 1909, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff and granting a new trial.

<p>Appeal by the plaintiff, Meyer Lambert, from an interlocutory 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: 9th day of June, 1909, upon the decision of the court, rendered after ia trial at the Hew'York Special Terra, sustaining the defendants’ demurrer to the complaint.</p>

<p>Railroad—negligence — death by electricity from “live”, rail — safe place to work — duty to establish rules — facts raising question for jury.</p> <p>Although it may be negligent for one employed to clean locomotives in the vicinity of a third rail highly charged with electricity to sit upon a wooden cover guarding the rail, yet where he had arisen to his feet before receiving the shock which killed him, the death did not result from his former act of negligence,</p> <p>It is for the jury to say whether a master maintaining a yard for locomotives should adopt rules for the protection of employees, working therein, and especially so where it contains “live" rails charged with a; current of electricity sufficient to cause death.</p> <p>The question as to whether a master in his duty of ordinary diligence to protect employees is called upon to establish and enforce rules is usually for the jury. It is only where it is clear beyond dispute that the situation does not call for rules,-or where no rule could have prevented an accident, that the court may hold as a matter of law that the. master was hot: obliged to establish rules.</p> <p>Where in an action to recover for the death of one employed to clean locomotives in.the vicinity of a “ live ” rail it appears that beneath the rail there was a depression six inches deep which was full of water and that a part of the rail protruded beyond the guard, it is for the jury to say whethei'the railroad ■failed in its duty to provide a safe place to work. • A nonsuit is error.</p>

<p>Supplementary proceedings — failure to appear — contempt.</p> <p>An order punishing a judgment debtor for contempt in failing to appear on supplementary proceedings and fining Mm the total amount of the judgment entered nearly one and one-half years after his default will be set aside where it appears that about the time set for his appearance he entered into an agreement with the creditor to pay the judgment in installments, and received a letter from the creditor’s attorney stating that although the default had been noted, no advantage would be taken of it.</p>

Appeal by the defendant, Joseph S. Schwab, from a judgment of the Supreme Court in favor of the plaintiff, entered in thé office of the clerk of the county of Hew York on the 21st day of January, 1908, upon the decision of the court rendered after a trial at the ■ Hew York Special Term.

<p>Master and servant — negligence — fall down elevator shaft — assurance of foreman that elevator would await plaintiff’s return — acts óf . superintendence. '</p> <p>Tike foreman in a factory ran an .elevator to tlie third floor and directed the per, son employed to run it to deliver a bundle, stating that he would wait until ■ his return and take him to an upper floor. It wás dark about the elevator door and the employee on his return, finding it open and the guard chain down, attempted to step upon the elevator and fell to the bottom of the shaft, the car having been moved to an upper floor. Held, that in view of said assurance of the foreman, the plaintiff was not guilty of contributory negligence as a matter of law in attempting to step upon' the elevator without first ascertaining whether it was there.</p> <p>The act of the foreman in moving the elevator without putting up the guard chain or closing the door was the act of a fellow-servant for which, the master was not liablb, as running an elevator involves, no element of superior duty, ■supervision or command. Hot so, however, the direction to deliver the bundle and the assurance by the foreman that he would await the plaintiff’s return, these being acts done by virtue'of his authority as superintendent so as to be chargeable to the master under the Employers’ Liability Act.</p>

<p>Appeal by the defendant, T. Charles Farrelly, 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 May, 1909, upon the verdict of a jury, and also from an order bearing date the 12th day of May, 1909, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Frances A. Becker, 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 Yobk on the 2d day of December, 1909, as resettled by an order entered on the lOtli day of December,. 1909¿ denying the plaintiff’s motion that the defendant be required to pay over certain money in his! hands or, in the alternative, that the judgment and all pleadings land procebdings in the''…

Appeal.by the defendant, Jacob Blum,-as administrator, etc., froni-.a judgment of the Supreme Court in favor of ¡the plaintiff, entered in tlfe office of the clerk óf the County of \New York on the 12th day of^Tovember, 1908, upon the verdict óf- a jury, and also from an order entered in said clerk’s office on the 2d day of December, 1908, denying the defendant’s motion for a new ‘trial made upon the minutes., -.

Appeal by the defendant, Charles A. Gould, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of June, 1909, upon the verdict of a jury, and also from an order entered- in said clerk’s office on the 15th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the defendant-, the Andrew J. Robinson 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 bn the 6th day of April, 1909, upon the verdict of .a jury for $4,BOO, and also from an order entered in said clerk’s office pn the 8th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Rossiter Realty 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 18th 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 defendant’s motion for a new trial made upon the minutes,

' Appeal by the plaintiff, Edward H. Kelly, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 25th day of June, 1909, setting aside the verdict of a jury in favor of the plaintiff for $10,000, and granting a new trial, unless the plaintiff stipulate to reduce the verdict to the sum of $666.67.

<p>Deposition — examination before trial — physical examination not authorized. —practice.</p> <p>The court, having adjourned an examination of a defendant before trial on allegations that he was too ill to attend on the day set, has no power to order him to submit to a physical examination by a physician appointed by it. The court has neither statutory nor inherent power to grant such order.</p> <p>It seems, that on a motion to punish the defendant for contempt for failure to attend such examination, the court, if it do not accept his physician’s affidavit as conclusive, may request him to submit voluntarily to a physical examination for the information of the court, and if he refuses, may find that he is acting in bad faith, and punish him for contempt.</p>

Appeal by the plaintiff, Eva Rosenstock, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 13th day of May, 1909, setting aside the verdict of a jury in favor' of the plaintiff and granting a motion of certain of the defendants for a new trial made upon the minutes.

<p>Landlord and tenant—assignment of lease—liability of assignee for rent — definition — colorable assignment.</p> <p>The obligation of an assignee of a lease to pay rent depends upon possession under the assigned lease, and if he in turn assigns and is not in possession he' is under no obligation to pay rent, for the relation of landlord and tenant does not exist. But the assignment must not be fraudulent or colorable.</p> <p>A colorable assignment means, not an assignment to avoid liability for rent, but that the assignor while retaining possession assigned to. conceal possession.</p>

Appeal by the defendant, the Philadelphia Casualty 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 7th day of January, 1910.

Appeal by the defendant, Eliza 0. Dunlop, 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 9th day of November, 1909, 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 defendant, Henry H. Snedeker, 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 9th day of Hovember, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the plaintiff’s demurrer to a further defense set up in the answer of the said defendant:

Appeal by the defendant, Pincus H. Greenblatt, 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 31st day of December, 1909, denying the said defendant’s 'motion for a new trial on the ground of newly-discovered evidence.

Appeal by the defendants, Friedrich Carl Pfender and others, by their guardian ad litem, Charles S. Guggenheimer, from portions of an interlocutory 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 20th day of September, 1909, confirming the report of a referee.

■ Appeal by the defendants, Abraham ■ Greenberg and another, from an order of the Supreme Court, made at the New York Special Term and -entered in the office of the clerk of the county of New York on the 15th day of December, 190.9.

Appeal by the plaintiff, Chartered Bank of India, Australia and China, 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 31st day of . December, 1909, as resettled and amended by an order entered on the 10th day of January, 1910, denying the plaintiff’s motion to vacate an order for the examination of the plaintiff and another corporation, not a party to the action, before trial.

Appeal by the. plaintiff, The Beer Importing Company of America, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of Hew York on the 5th day of January, 1910, vacating an-order for the examination of. the defendant Boross before trial.

Appeal by the plaintiff, George Hill, from an order of the Supreme Court, madé at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1909, vacating an order for the examination of a witness before trial.

Appeal by the plaintiff, Guillaume Reusens, 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 December, 1909, denying the plaintiff’s motion to vacate an order for his examination before trial.

Appeal by Martha B. Jones, claimant, 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 19th day of Movember, 1909, denying the appellant’s motion for leave to intervene.

Appeal by the defendant, The City of Hew York, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of May, 1909, upon the verdict of a jury for $10,000, and also from an order entered in 'said clerk’s office on the 29th day of May, 1909, denying the defendant’s motion for a new trial made upon the minutes. . ■

<p>Executors and administrators—interest on debt due from residuary legatee —; facts not showing right of offset — costs — extra allowance.</p> <p>Interest on a debt owing by a residuary legatee to Ms testator should be computed from the maturity of the debt until one year after the date of letters testamentary when the legacy became payable. *</p> <p>Evidence in an action, brought by executors to offset against a legacy the amount of checks drawn by a testator to the order of the legatee, examined, and held, that a finding that the sum should be offset was not warranted.</p> <p>Such action is n.ot difficult and extraordinary within the meaning of section 3253 of the Code of Civil Procedure so as to warrant an extra allowance.</p>

Appeal by the defendant, William J. Randolph, from a judgment of the Supreme Oourt in favor of the plaintiff, rendered on the 13th day of May, 1909, and entered in the office of the clerk of the county of Rockland convicting, the defendant of the crime of willfully misappropriating moneys deposited with him as county treasurer of Rockland county, and also from an order overruling the defendant’s demurrer to the indictment.

Appeal by the defendant, William H. Hale, from an oral direction of the Court' of Special Sessions of the second division of the city of Hew York, made on the 20th day of December, 1909, overruling the defendant’s demurrer to an information.

<p>Negligence — liability of contractor to employees of other contractor.</p> <p>Where several independent contractors are doing work in connection, with the unloading of a ship, each of them owes to the employees of the other a duty to exercise due care in the performance of his work.</p> <p>Under such circumstances a contractor is not merely required to refrain from willful, wanton or intentional injury. .</p> <p>The employee of a ship’s cooper working in a vessel may recover of a stevedore engaged in unloading the cargo for injuries received by reason of his negligence in failing properly to pile the goods removed..</p>

<p>Attorney and client — action for professional services rendered — direction of verdict — amount of recovery is for jury.</p> <p>The court in directing a verdict in favor of an "attorney at law suing to recover for professional services rendered cannot direct the jury to assess the damages at a certain amount, although there is no evidence contradicting the testimony of the plaintiff as to the value of his services. The assessment of damages is for the jury.</p>

<p>Mandamus—issuance of writ establishes validity of act commanded — town — bonds — Drainage Law.</p> <p>The issuance of a peremptory writ of mandamus commanding the supervisors of a town to sell bonds pursuant to section 36 of the Drainage Law is a determination establishing that the bonds are legally issued. This because the primary object of the writ is to compel action. It neither creates nor confers power to act, but only, commands the exercise of power already existing.</p> <p>A town is liable on bonds, issued pursuant to section 36 of the Drainage Law the same as if issued for any other town purpose, and they are a lien upon all the taxable property in the town.</p>

Appeal by Harry Annish from an order of. the Supreme Cburt, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of Movember, 1909, canceling a mechanic’s lien. .

Appeal by the defendant, Cornelius J. Whigam, from a portion of 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 18th day of- March, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint, but not on the merits.

Appeal by the plaintiffs, Brunson B. Monypeny and another, by ■ Alpheus H. Favour, guardian ad litem, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 27tli day of October, 1909, upon the decision of the court, rendered after a trial at the Bockland Special Term, sustaining the said defendants’ demurrers to the amended complaint in an action brought under the provisions of…

Appeal by the plaintiffs, George F. Sclieele and others, copartners, etc., from a final order of the Municipal Court of the city of ¡New York,'borough of Brooklyn, in favor of the defendants, rendered on the 29th day of September, 1909.

Appeal by the plain tiff, Aehille J. Oishei, 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 20th day of Hovember, 1909, denying- the plaintiff’s motion to strike out certain portions of the answer of the defendant Hew York Taxicab Company.

Appeal by the defendant, Joseph M. Lee, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of May, 19.09, upon the verdict of a jury.

Appeal by the defendant, John L. Radermacher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of January, 1909, upon the verdict of a jury for $5,000, and also’ from an order entered in said clerk’s office on the 18th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.

' Appeal by the defendant, the Brooklyn, Queens County and Suburban Bailroad Company, from a judgment of the Municipal Court of the city of blew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 15th day of June, 1909.

<p>Appeal by the plaintiff, Jonas Goldberg, from a judgment of the Municipal Court of the city of ¡New York, borough-of Brooklyn, in favor of the defendant, rendered on the 10th day of June, 1909, after trial before the court without a jury.</p>

Appeal- by the plaintiffs, Charles IT. Levitt and another, copartners, etc., from a judgment of the Municipal Court of' the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 10th day of November, 1909, dismissing the complaint.

Appeal by the plaintiff, Margaret McDonald, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 26th day of April, 1909, dismissing the plaintiff’s complaint.

Appeal by the defendant, The Federal Sugar Befining 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 21st day of October, 1908, upon the report of a referee.

Appeal by the defendant, the Williams Engineering and Contracting Company, from an order, of the Supreme Court, made at the Orange Trial Term and entered in the office of the cleric of the county of Orange on the 13th day of April, 1909, setting aside the verdict of a jury' in favor of the defendant and granting a new trial.

Appeal by the plaintiff, Michael E. Moore, from a judgment of the Supreme Court in favor of the defendant, entered in'the office of the clerk of the county of Suffolk on the 19th day of June, 19:09, upon the dismissal of .the complaint by direction of the court after a trial at the Suffolk 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 15th day of Jume, 1909,…

<p>Crime — robbery and grand larceny — evidence — corroboration of accomplice — evidence of good character—erroneous charge.</p> <p>Ho conviction can be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.</p> <p>Evidence in a prosecution for burglary, third degree, and for grand larceny, first degree, examined, and held, to corroborate the testimony of an accomplice.</p> <p>Where the guilt of a defendant is proved beyond a reasonable doubt it is immaterial that he is a person of good reputation. But while proof of good character is not a defense to a crime, it may be a defense to a criminal charge, and hence, where evidence of good character is introduced the defendant is not proven guilty beyond a reasonable doubt, unless the evidence be so conclusive that the improbability that a person of such character would be guilty of the offense charged is overcome.</p> <p>Charge as to the weight to be given evidence of good character examined, and 'held, to be prejudicial error in view of the sharp conflict in the evidence of the defendant’s guilt and to require a reversal although no exception was taken.</p>

Appeal by the plaintiff, Olof Thomson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of June, 1909, upon the decision of the court, rendered after a trial at the- Kings County Trial Term before the court without a jury, dismissing the complaint upon the merits.

<p>Appeal by the defendant, Clarence H. Galt, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the-office of the cleric of the county of Richmond on the 26th day of May, 1909, upon the verdict of a jury, and also from an order entered m said clerk’s office on the 20tli day of May, 1909, denying the defendant’s motion for-a new trial made upon the minutes.</p>

Appeal by the plaintiff, Margaret Bhatigan, as administratrix, etc., from a j'udgment of the Supreme Court in favor of the defendant, entered' in the office of the cleric of the county of Kings on the 23d day of December, 1908, upon the dismissal of the complaint by direction of the court at the close of ■ the plaintiff’s case on a trial at the Kings County Trial Term.

Appeal by the. plaintiff, Sarah Young, from a judgment of the Supreme Court in fSvor of the defendant, bearing date-the 7tli day of June, 1909, apd entered in the office of the clerk of fire county of Westchester- upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Westchester Trial Term.

Appeal by the defendant, The Long Island Bailroad Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 8th day of October, 1909.

<p>Highway — negligence — collision between vehicles causing 'injury to third person—joint tort feasors. . .</p> <p>'' Where the driver of a truck was proceeding in a line of vehicles parallel to a.street car, but behind the front of the car and. so close thereto that when the car turned on a switch to reach another track the pole of the truck was- thrown against the plaintiff’s‘carriage to his injury, the negligence was that Of the.truck driver in failing-to keep his distance from the-car.</p> <p>Ev.en if the motorman were negligent, it does not excuse the truckman’s .fault..</p>

Appeal, by the plaintiff, Sam Genevetz, from a judgment of the Supreme Court in favor of'the defendants, entered in the office of the clerk of the county of Kings on the 1st day of July, 1909, upon the decision of the court,-rendered after a trial at the Kings C-ounty Special Term, dismissing the complaint upon the merits.

<p>Evidence — expert testimony — railroad — negligence derailment of train.</p> <p>Expert opinion is worthless where the weight of evidence shows that the witness upon whose testimony it was based was mistaken.</p> <p>Action against a railroad to recover for injuries received by an employee on the derailment of a train. Evidence examined, and held, that a verdict for the plaintiff was against the weight of the evidence.</p>

Appeal by the plaintiff, Laura E. Eisert,. from a final order of the Municipal Court of the city of Mew York, borough of Queens^ rendered on the 22d day of J uly, 1909.

<p>Appeal by the plaintiff, Charles I. Rosenblum, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendants, rendered on the 30th day of September, 1909. •</p>

<p>Banks — right to sue in corporate name while assets held by State Superintendent.</p> <p>Although the State Superintendent took possession of a bank and its assets pursuant to section 18 of the Banking Law, as amended by chapter 148 of the Laws of 1908, now section 19 of the Banking Law (Consol.. Laws), the corporation did not lose title to its assets, nor was the same vested in the State Superintendent. He merely became a custodian and liquidator; the corporation is not extinguished. Hence, during such custodianship an action upon a promissory note held by the bank may be brought in the name of the corporation.</p>

<p>Appeal by Thomas J. O’Neill from an order of the Supreme Court, made at the Kings County Sjiecial Term and entered in the office of the clerk of the county of Kings on the 11th day of June, 1909, except that part of said order which grants him a stay.</p>

<p>Landlord and tenant — oral lease —unenforcible option for renewal.</p> <p>Although an oral lease for the period of three months included a further unenforcible agreement by the landlord to renew the lease for three years at its expiration, there was at least a legal renting for three months and the landlord ■ : may recover the rent due..</p>

<p>Replevin — levy on goods under execution—assignment of judgment immaterial — costs — increased costs on judgment in favor of city marshal — no increased costs on appéal — practice — application to court — appeal — irregularity in judgment.</p> <p>A judgment in favor of a city marshal who was sued in replevin hy the owner of goods levied upon hy him on execution will not he reversed merely because after the levy the judgment upon which the execution was issued was assigned to a third person not a party to the action.</p> <p>Where a. city marshal is successful in such action he is entitled to increased costs under section 3.83 of the Municipal Court Act, being a public officer appointed under the authority of the State,</p> <p>He is not, however, entitled-to increased costs of appeal, as no right thereto, is conferred by said section.</p> <p>Qucere, as to whether it is necessary to apply to the court for an allowance of increased costs under section 388 of the Municipal Court Act. But even if there was a failure to make such application, the court may allow the costs nunc pro 'tunc.</p> <p>A failure to insert in a judgment of replevin an alternative provision allowing a return of the goods is a mere irregularity which may be cured on appeal without reversing the judgment.</p>

<p>Appeal by the Tillage, of White Plains from a determination and order of the Public Service Commission of the State of New York, second district, bearing date the 16th' day of September, 1909, and filed in the office of said Commission, directing the elimination of grade crossings of respondent’s' railroad in the village of White Plains,' except so much thereof as directs that public safety requires the elimination of the grade crossing of Bailroad avenue.</p> <p>It is conceded, first, that public safety requires the elimination of the grade crossings involved in this proceeding ; second, that it is a practical impossibility to eliminate such crossings on the present line of the road, and that the village does riot want such an elimination ; third, that the only practical method of such elimination necessitates a change of - the route or line of the railroad for a. distance of about 2,000 feet; fourth, that the cost of elimination by this method is a saving of over $70,000 to the village over the cost of elimination on the present line of the railroad.</p>

Appeal by the President and Trustees of the Village of Ossining, from a determination and order of the Public Service Commission of the State of New; York, second district, bearing date the 17th day of June, 1909, and filed in the office of ■ said Commission, eliminating grade- crossings in the village of Ossining. The proceeding was instituted by the respondent, and the subsequent proceedings were had, under the provisions of section 62 of the Eailroad Law.

<p>Railroad — negligence—injury to passenger alighting from trolley car.</p> <p>A passenger who was injured by the sudden starting, of a trolley car cannot recover when the evidence shows that, without, signaling the conductor or knowing of his whereabouts, she attempted to alight when the car, owing to the fact that a car ahead obstructed the track, came to a momentary stop at a point which she knew to be some distance from the regular stopping place.</p>

<p>Pleading — suit to rescind conveyance — failure to state cause of action.</p> <p>A complaint in equity asking the rescission of a conveyance of land on the ground of fraudulent representations by the grantor as to the marketability of the title fails to state a cause of action when it merely alleges, in substance, that a city claimed a title hostile to the grantor, but states no facts showing ■ that the title is bad or unmarketable.</p> <p>A mere hostile claim against one in possession of real property does not make his title unmarketable, as the claim may be wholly unsubstantial.</p>

<p>Appeal by the defendant, Morris Bloch, from so .much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the -28th day of October, 1909, as denies the application of the defendant to set aside the execution issued upon the judgment herein.</p>

<p>Appeal by the defendant, The Equitable Life Assurance Society of the United States, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 13th day of September, 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.</p>

Appeal by Margaret Lally from a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 17th.day of December, 1909, admitting to probate a certain instrument as the last will and testament of Thomas P. Lally, deceased, and adjudging that a certain trust clause contained therein is, so far as it affects personal property, a valid trust.

<p>Appeal by Patrick H. Cannon from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogated Court on the 26th day of May, 1909.</p>

<p>Appeal by the plaintiff, John H. Dreyer, from a judgment of the Supreme Court in favbr of the defendants, entered iff the office of- the clerk of the county of Kings on the 9tli day of September, Í909, upon the decision of the court, rendered after a trial at the Kings County -Special Term, dismissing the complaint. upon the merits.</p>

Appeal by the plaintiff, Louis B. Enton, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 26th day of June, 1909.

<p>Process — service of summons by publication — designation of post office — deposit of summons in post box.</p> <p>An order for service of summons by publication substantially complies with section. 440 of the Code of Civil Procedure which requires that the order direct that the papers be deposited in “a specified post-óffice ” where it directs them to be deposited in the “ post office at New York.”</p> <p>But the deposit of a summons in a post box regularly maintained by the post office authorities in an office building in said city is not sufficient to give validity to the service.</p> <p>Quaere, as to whether a deposit of the papers in such post office box would have been sufficient if there were proof that the papers were actually received by the person to whom they were addressed.</p> <p>Woodward, J., dissented.</p>

Appeal by the defendant, A, I. Namm, a corporation, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in-favor of the plaintiff, rendered on the 20th day of October, 1909.

Appeal by the defendant, William J. Ward, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of November, 1909.

Appeal by the defendants, John Y- Gerow and others, from a final order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of .Orange on the 19th day of May, 1909, awarding to the relator the custody of her two infant children.

<p>Appeal by Andrew S. Powell and others from part of a decree of the Surrogate’s Court of the county of ¡Nassau, entered in said Surrogate’s Court on the 15th day of September, 1909, as resettled by an order entered on the 6th day of October, 1909, admitting to probate the will of Elbert Powell, deceased.</p>

<p>Appeal by the plaintiff, Joseph A. Beauregard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.</p>

Appeal by the defendant, Cynthia E. Smith, individually,' etc., from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of Kings on the 12th day of May, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of May, 1909, denying the defendant’s motion for a new trial made upon the min utes, in an action brought to recover broker’s commissions.

<p>Appeal by the defendant, Paul M. Abrahams, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Westchester on the 28th day of-October, 1909, denying the defendant’s motion to vacate and set aside an execution issued against the person of the defendant.</p>

Appeal by the defendant, Max Brown, 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 23d day of April, 1909, denying the defendant’s motion to vacate and set aside an order in supplementary proceedings for his examination as a judgment debtor.

Appeal by the defendants, Joseph Stewart and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of October, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendants, Peter J. Pingerlin 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 ITth.day of March, 1908, upon the verdict of a jury rendered by direction of the court.

Appeal' by the defendants, Samuel, Kutler and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff rendered on the 18th day of November, 1909.

<p>Bills and notes — sale;—delivery of check to be filled in by seller — insertion of larger amount without authority — liability of payee.</p> <p>Where on the sale, of .goods the buyer’s. agent delivered to the seller a check duly signed, but with the amount left blank, with direction that the seller' should insert the value of the goods purchased, but the seller liked in the check for a larger amount so as to cover another debt which he claimed was owing from the buyer, he is liable for the excess so collected.</p>

<p>Appeal by William Auer from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 10th day of June, 1909, directing a sale of real estate for the payment of debts.</p>

Reargument of an appeal by the plaintiff, Joseph Lewis, from a. judgment of the Supreme, Court in favor of the defendant, entered in the office of the clerk of the county of’ Kings on the 18th day of Hay,' 1908, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 22d day of Hay, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants,. Theodore Wilm and others, from .a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 9th day of November, 1909.

Appeal by the plaintiff, Samuel Phillips, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendants, dismissing the plaintiff’s complaint.

Appeal by the plaintiff, The Brooklyn Improvement Company, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on the 14th day .of October, 1909, sustaining the defendant’s demurrer to the complaint.

<p>Appeal by the defendant, the Truseott Boat Manufacturing Company, from a judgment of the Municipal Court in favor of the plaintiff rendered on the 7th day of June, 1909.</p>

<p>Contract — agreement not to engage in competing business - tract entire — breach^ assignment — defects in assigned cured by subsequent acts of assignor. when con-, claim not</p> <p>Where an employee left his master’s service and made arrangements to start in business for himself in competition, and the master, induced him to abandon ■ the plan and to promise not to open a competing store in that neighborhood, in consideration of the master’s agreement to reimburse him for expenses . already incurred "and to pay him a weekly salary,, the contract was entire.</p> <p>Where the employee waived immediate payment of the moneys to reimburse him for expenses incurred in starting the new store by accepting checks pay-' able at a later date, there was a breach of the entire contract when the master failed to pay. some of the checks at maturity, and the employee was justified in starting in business for himself. As the employer was .guilty of the breach, neither he nor his assignee can recover- moneys paid to tire employee.</p> <p>As,there was a breach of .the contract at the time the claim thereon was assigned, the assignée cannot.recover although his assignor made good the default by subsequently paying the dishonored checks,-</p>

Appeal by the plaintiff, Isaac Arker, from two orders of the Municipal Court of the city of Mew York, borough of Brooklyn, one entered in the office of the clerk of said court on the 3d day of Movember, 1909, and the other entered in said clerk’s office on the lO.th day of December, 1909.

Appeal by the defendants, Robert H. Elitz 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 Eings on the lltli day of November, 1909, upon the decision of the court rendered after a trial at the Eings County Special Term overruling the defendants’ demurrer to the complaint.

Appeal by the defendant, Solomon L. Pakas, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Kings on the 19th day of June, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Motion to confirm referee’s report and to fix his fees.</p>

<p> Negligence —gas and electricity—injury to lineman by shock from feed wire. </p>

Appeal by the defendant from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 28th day of June, 1909, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling defendant’s demurrer to the complaint.

<p>Appeal from an order entered on the 10th day of December, 1909, denying a motion for judgment on the pleadings under section 547 of the Code of Civil Procedure.</p>

<p>Appeal from an order entered on the 7th day of December, 1909, denying a motion for an alternative writ of mandamus.</p>

Appeal from an order entered on the 17th day of December, 1909, granting a motion to vacate a judgment entered on default and permitting defendant to serve an' answer

<p>Appeal from an order entered on the 10th day of December, 1909, granting the plaintiff's motion for alimony and counsel fee.</p>

<p>Appeal from an order and interlocutory judgment dismissing the complaint on the pleadings.</p>

<p>Appeal from a judgment entered on the 2d day of June, 1909, dismissing the complaint at the close of the plaintiff’s Case upon a trial at the Hew York Trial Term. "</p>

<p>Appeal from an order- entered on the 8th day of November, 1909, granting a motion for an amended bill of particulars.</p>

<p>Appeal from a judgment entered on the 25th day of October, 1909, and from an order entered on the 8th day of October, 1909, denying a motion for a new trial.</p>

<p>Motion and order — pleading — moi'e definite and certain.</p>

5th day of January, 1910, granting a preliminary injunction to restrain appellant from infringing respondents’ trade mark and to restrain him from unfair trade competition.