Volume 137 — New York Appellate Division Reports

Appeal by the defendants, Joseph Kaiser 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 29th day of June, 1909.

Appeal by the plaintiff, Patrick H. Morrison, from a judgment of the Supreme Court in favor. of the defendants, Amelia Brenmolil and another, entered in the ¡office of the clerk of the county of Suffolk on the 3d day of May, 1909, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits as to said defendants. •

Eeargument of an appeal by tlie defendant, The Mew York Central and Hudson Eiver Eailroad Company, from a judgment of the' Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eockland on- the 21st day of April, 1909, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 13tli day of May, 1909, denying the defendant’s motion for a new trial niade upon the minutes.

Appeal by the petitioner, Annie Churcliick, 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 January, 1909, also from an order bearing date the 21st day of January, 1909, and entered in said clerk’s office, and an order entered on the 29th day of January, .1909, and also from an order entered in said clerk’s office on the 19th day of April, 1909, vacating the first…

<p>Appeal by the defendant, the Central New England 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 Dutchess on the 20th day of Hay, 1909, upon the verdict of a jury foils,000, and also from an order entered in said clerk’s office on the 17th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Charles L. Mitchell 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 Queens on the 5th day of November, 1909, upon the decision of the court rendered after a trial at the Queens County Special Term overruling the said defendants’ demurrer to the complaint.

Motion by the plaintiff, August Wahler, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term in June, 1909.

Appeal by the defendant, Lowell M. Palmer, from an order of the Supreme Court, made at the Kings County Trial Term and. entered in the office of the clerk of the county of Kings on the 14th day of May, 1909, setting aside the verdict of a jury in favor of the defendant and granting a new trial.

Appeal by the defendant, John B. West, 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 June, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Municipal corporations — eminent domain — street opening, city of New York — court cannot alter .report — awards — condemnation of street already open to public — rights of abutting owners.</p> <p>On reviewing the report of commissioners of estimate and assessment in a street opening in the city of New York the court has no power to change an award made to a certain person so as to make it payable to unknown owners, but must follow the procedure prescribed by section 986 of the charter and return the report to the commissioners, or to new commissioners, for revision and correction..</p> <p>It seems, that one owning merely a naked fee in a street already thrown open to public use and not subject to assessment for .benefits received when the street is acquired by the city of New York, is not entitled to substantial damages, for her fee is already subject to a right of way, aud additional burdens would be put upon abutting owners assessed for benefits received.</p> <p>It seems, that upon awarding damages on taking the fee of a street already subject to a public use, the commissioners should consider the claims of abutting owners who are assessed for benefits received.</p>

Appeal by the defendant, Bridget English, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of May, 1909, upon the verdict of' a jury, and also from an order entered in said clerk’s office on the lltli day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Franklin L. Slieppard and another, etc.,, from a judgment of the County Court of Kings- county in favor of the plaintiff, entered in the office of the clerk of said county on the 6th day of January, 1909, upon the decision of the court rendered after a trial before the court without a jury.</p>

<p>Railroad—negligence — injury to passenger thrown from running board — contributory negligence.</p> <p>A passenger, on a street car who, knowing that it was approaching a curve, and that his signal to the conductor to stop was too late, got upon the running board, and was thrown of£ when the car, going at the rate of ten or twelve miles an hour, struck the curve with a shock insufficient to disturb passengers within the car, is guilty of contributory negligence which bars a recovery. Hirschberg, P. J., dissented.</p>

Appeal by the defendant, Albert Gr. Wheeler, Jr.,.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 5th day of January, 1910, directing the clerk to tax .costs in favor of the plaintiff, .

■ Appeal bjj the 'defendants, The City of New York and others, from a judgment of the -Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the'county of Kings on the ;10th day of April; 1909, upon tlie'decision of the court rendered after a trial at -the Kings County Special Term.

■ Appeal by the defendant, the Scottish Union and National Insurance Company, from an order of the Supreme • Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 10th day of January, 1910, denying the defendant’s motion to dismiss the complaint for failure to prosecute.

<p>Railroad—negligence — injury by act of independent contractor — contract requiring contractor to give notice — presumption.</p> <p>Although a contract for changes in the roadbed of a railroad required the contractor to give twenty-four hours’ notice to the engineer of the railroad before‘removing a fence guarding the roadbed, the contract itself raises no presumption that the railroad had knowledge that the contractor removed a portion of the fence so as to charge it with liability for injuries resulting from the negligence of the contractor’s employees in connection with the fence which occurred within eight hours of its removal.</p> <p>Where in an action to recover for injuries to a child caused by reason Of the fact that a portion of a.wire fence removed became entangled in a passing train, it appears that the accident was caused solely by the negligence of the servants of the contractor, and that the railroad had nothing to do therewith, there can be no recovery against it.</p>

Appeal by the relator, Gr. F. Charles Beverforden, from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Rockland on the 30th day of November, 1909, denying the relator’s motion for a peremptory writ of mandamus.

<p>Appeal by' the defendant, the Village of North Tarrytown, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the, office of the clerk of said county on the 28th day of April, 1909, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 17th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes. ,</p>

<p>Ships and shipping — injury by collision—captain is fellow-servant with other employees — Employers’ Liability Act — insufficient notice.</p> <p>The captain of a float and the captain of a tug towing the same, both in the employ of the same master, are fellow-servants so that there can be no recovery for the death of one caused by the negligence of the other.</p> <p>Qumre, as to whether the employer of the-captain of a vessel can be charged with his negligence upon the ground that he is a superintendent within the Employers’ Liability Act.</p> <p>A notice purporting to be drawn under the Employers’ Liability Act stating that the plaintiff’s intestate was killed on a certain date “while in your employ on a float in the vicinity of Communipaw Ferry, North River, duo to a collision which occurred in said vicinity of Communipaw Ferry ” is insufficient to bring the case within the statute even tnoughthe defendant had other means of acquiring information.</p>

<p>Landlord and tenant ■— summary proceedings — final .order should award possession — partial eviction — appeal from Justice’s Court — failure of County Court to order new trial on reversal — power of Appellate Division.</p> <p>A final order in favor of the landlord in summary proceedings should award possession of the premises, not damages for unpaid rent.</p> <p>If there be a continuing partial eviction the landlord cannot maintain summary proceedings against the tenant for non-payment of rent.</p> <p>' It seems, that where the County Court on reversing an order in summary proceedings made by a justice of the peace as against the evidence and law did not order a new trial before the same or another justice of the same county, the Appellate Division may modify the order of reversal, so as to direct the County Court to order a new trial.</p> <p>But where the order of reversal does not purport to give judgment for the defendant on the merits, the landlord will be left to a new proceeding.</p>

Appeal by the relator, Margaret H. Foot, 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 17th day of November, 1909, denying the relator’s motion for a writ of mandamus.

Appeal by the plaintiff, Otto M. Hoppmann, 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 l-7th day of February, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits. _

Separate appeals by the plaintiff, Sarah Emilio Hope, and the ' defendant, James Benjamin Orie Shevill, from parts of a judgment of the Supreme Court, entered in the office of the cleric of the county of Kings on the 26th day of February, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendants, Nathan Goldberg and another, from a judgment of the Municipal Court of the- city-of New York, borough of Queens, in favor of the plaintiff, rendered on the 17th day of November, 1909.

Appeal by the plaintiff, Frank M. Hickok, as receiver, etc., from a judgment of the Supreme Court in favor of the .defendants, entered in the office of the clerk of the county of Kings on the 15th day of March, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term. .

Appeal by the defendant, the Empire Hardware Oompany, from a judgment of the Supreme Court in favor- of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of July, 1909, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 12tli day of July, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Bertram Ball, 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 1st day of February, 1910.

Appeal by Grace D. Valentine, proponent, and another from a decree of the Surrogate’s Court of' the county of Westchester, entered in said Surrogate’s Court on the 17th day of February, 1906.

Appeal by the defendants, Thomas H. Whitney 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 Nassau on the 10th day of June, 1909, upon the decision of the court rendered after a trial at the Nassau Trial Term, the jury having been discharged.

Appeal by the defendant, David W. James, 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 21st day of-January, 1909, upon the report of a referee to hear and determine.

Appeal by the defendant, Charles K. Fankhauser, from a judgment of the Supreme Court in favor of the plaintiff against the said defendant, entered in the office of the clerk of the county of New York on the 30th day of November, 1908, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 1st day of December, 1908, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Robert F. Tysen, 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 20th day of December, 1909, granting the motion of the respondent to be made a party defendant and permitting him to serve an answer herein.

Appeal by the defendant, Daniel T. Wilson, 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 27th day of November, 1909, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, the Mechanics and Traders’ Bank of the City of New York, 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 29th day of June, 1909, affirming a judgment of the-City Court of the city of New York in favor of the plaintiff, entered on the 5th day of January, 1909, and also (as stated-in the notice of appeal) from the judgment of affirmance of the City Court entered in said City…

<p>Gas and electricity — telephone company — unjust discrimination between customers — discounts to municipalities,, charitable institutions and clergymen.</p> <p>While a telephone company serving the public cannot show unfair, unj ust and unreasonable discrimination between customers - similarly situated, it does not ■ make an unjust discrimination by furnishing telephone-service to a municipality, to incorporated charitable institutions' and to clergymen at a twenty-five per cent discount from the rates given to other subscribers.</p>

Appeal by the defendants, Grant B. Schley and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 17th day of April, 1909, upon the verdict of a jury for $48,550, and also from an order entered in said clerk’s office on the 26th day of April, 1909, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the relator, Nathan Wang, from an order of the- . Supreme Court, made-at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 14th day of December, 1909, denying the relator’s motion for a peremptory or alternative writ of mandamus to compel his reinstatement as a member of the respondent.

Separate appeals -by the petitioner, - Ely J. Eieser, and by his attorneys, from, ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county'of Mew York on the 8th day of January, 1909, the appeal of the former being from the entire order and that of the latter from so much thereof as 'modifies the report of. the referee by reducing the amount due to them from the petitioner from $600 to $250, and from so much…

<p>Appeal by the plaintiff, Frank Rando, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 24th day of Rovember, 1909, granting leave to the defendant bank to bring an action against the plaintiff upon "a judgment recovered by it against him in the Supreme Court on the 15th day of May, 1909, for the sum of $12,978.90, or at the option of the defendant, to serve an amended answer herein setting up said judgment as a counterclaim.</p>

<p>Appeal by the plaintiff, George Morgan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of thé county of Mew York on the 7th day of April, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of April, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Gnstavus.A. Rogers, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 19th day of January, 1910, denying the plaintiff’s motion to vacate an order for his examination before trial.

Appeal by the defendant, Charles Stutz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county, of New York on the 28th day of December, 1909, denying the defendant’s motion to dismiss the complaint for want of prosecution.

Appeal by the defendant, Jennie Eacliemson, from an order of the Supreme Court, made at the' Eew Fork Special Term and entered in the office of the clerk of the county of Eew Fork on the 5th day of January, 1910, directing a receiver appointed in a foreclosure action to pay rents which he had collected to the owner of the equity of the property foreclosed.

Appeal by the plaintiff, Josephine W. Taylor, and the defendants, Alice W. Emmet 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 25th day of January, 1910. The opinion delivered at Special Term is reported in Taylor v. Emmet (66 Misc. Rep. 74).

Appeal by the plaintiff, Mildred Cohen, 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 15th day of November, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term.

<p>Costs — action on breach, of contract — complaint uniting causes of action — recovery by plaintiff upon one cause and by defendant upon another — certificate as to identity of issues.</p> <p>Where a plaintiff recovers on some of several causes of action set forth in a complaint, and the defendant upon the other causes, the court cannot make a certificate that the substantial cause of a-ction is the same upon each issue, so,as to, deprive the defendant of costs, if the nature of the causes be such' that a recovery upon one would not bar a recovery upon the- other.</p> <p>Thus, where a municipal contractor recovered against .the city-on a first cause Of action for a sum deducted by the city as a penalty for delay, but the city recovered on the second cause of action set forth, which was for damages alleged to have been caused by a breach of contract by the city, it is. error, for the court to grant a certificate that the causes of action are the same so as to deprive the city of costs.</p>

Appeal by Ophelia Vail 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 3d day of January, 1910, as resettled by an order entered on the 14th day of January, 1910, directing that a commission issue to commissioners named, to inquire by a jury of the county whether Francis Vail is an incompetent and incapable of managing his property, and, among other things, enjoining the…

Appeal by the defendant, The Mew York Central and Hudson River Railroad Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of ISTew York on the 25tli day of June, 1909, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, and also affirming an order of said City Court denying the said defendant’s motion for a new trial made upon the minutes, and’ also (as. stated in the…

Appeal by the plaintiff, Bert Adams, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of November, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the counterclaims contained in defendant’s answer.

<p>See head note in Adams v. Schwartz (ante, p. 230).</p>

<p>Mechanic’s lien—assignment of sum due firm of contractors for individual debt—consideration—mechanic’s lien superior to claim of trustee in bankruptcy — assignment to guarantor — consideration — " assignment in fraud of lienors.</p> <p>An assignment of a sum due a firm of building contractors made by one of the partners in the firm name in satisfaction of his individual obligations incurred prior to the formation of the partnership is without consideration and void as against a mechanic’s lien filed by a sub-contractor subsequent to.the assignment. The lien of such contractor on the sum assigned is superior to the claim of a trustee appointed on the bankruptcy of the partners, whether or no such assignment be void or voidable under the Bankruptcy Act.</p> <p>An assignment of a portion of a sum due a firm'of building contractors to a person who had previously guaranteed the payment of an accommodation note made by another person for the benefit of the firm, which assignment was made after- the guaranty, on which there was no right to indemnity, and before the maturity of the note, is without consideration, and is void against sub-contractors who filed liens on the sum assigned.</p> <p>This is true although the guarantor voluntarily paid the note when it subsequently fell due, if the maker was able to pay to the knowledge of the guarantor.</p> <p>Where such assignment was made and accepted with the intent to defraud the lienors, it is void as to them even though the voluntary payment of the note • by the guarantor should be deemed to be a consideration.</p> <p>Miller, J., and Ingraham, P. J., dissented in part, with opinion.</p>

Appeal by the defendant, the Norfolk and Western Railway Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of .New York on the 7th day of December, 1909, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered on the 12th day of August, 1909.

Appeal by the defendant, John G. Elliott, individually and as executor, 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 30th day of June, 1909, upon the verdict of a jury for $17,500, and also from an order entered in said clerk’s office on the 25th day of' June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporations — department of education, city of New York — fixing salaries — relative powers of aldermen and board of education.</p> <p>Under section 56 of the revised charter of the city of New York, as amended by chapter 435 of the Laws of 1903, and section 1067 of said charter, the power to increase the salary of a statistician in the department of education is vested in the board of aldermen, not in the board of education.</p> <p>Under the charter the board of aldermen has power to fix the salaries of all positions in the department of education except those which are expressly put under the jurisdiction of the board of education by sections 66, 1067 and 1091..</p>

Appeal by the defendant, John B. Ireland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 30.th day of January, 1909, upon the verdict of a. jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 3d day of February, 1909, denying the défendant’s motion for a new; trial made upon the minutes in an action brought to recover damages for a failure…

Appeal by The City of New York and by John Cloughen, as commissioner of public, works, 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 21st day of December, 1909, denying a motion made by the city to vacate and set aside certain proceedings taken and had herein on the 10th day of December, 1909, on the ground that John F. Ah earn, as president of the borough of Manhattan, against…

Appeal by The City of New York and by John Cloughen, as commissioner of public works, 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 21st day of December, 1909, granting the relator’s motion to join them as parties defendant.

Appeal by the defendants, Eugene E. Hinkle and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of June, 1909, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of June, 1909, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Samuel Gerst, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York rendered against him on the 26th day of October, 1909.</p>

<p>Appeal by Wallace E. Brown from part of a decree of the Surrogate’s Court of the county of blew York, entered in said Surrogate’s Court on the 6th day of April, 1909.</p>

<p>Evidence—release under seal — conditional delivery—parol evidence.</p> <p>Although a general release under seal complete on its face has been physically delivered, it may be shown by parol that the delivery was conditioned on an oral agreement that it- was not to become binding until the happening of a future event, and that the contingency never happened.</p>

■ Appeal by the plaintiff, Eva K. Oonlon, from an order of the Supreme Court, made at the New'York Special Term and entered in the office of. the clerk of the county of New York on the '3d day of March, 1908.

<p>Appeal by the plaintiff, Charles J. Brooks, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 2d day of December, 1909. .</p>

<p>Election—primary election—judicial review under section 70, Election Law — when court will not act.</p> <p>Section 70 of the Election Law confers on the court broad summary power to correct fraudulent practices and to compel fair conduct at primary'elections. The court in a proper case has power to set aside summarily a fraudulent primary election and to order a new election, but the exercise of the power rests in its sound discretion.</p> <p>The court will not act to correct illegalities in a primary election where the only effect thereof was to increase the majority of a candidate who would have been elected irrespective of the fraud.</p>

<p>Will — bequest in trust with power of revocation —death of beneficiary-before termination of trust — when bequest does not lapse.</p> <p>Where a will placed moneys in trust until the beneficiary should attain the age of thirty years, with a direction that if in the opinion of the trustees he led a good and honorable life during that period, they should pay him the corpus absolutely, with power in the trustees to revoke the trust and pay the-corpus to other persons if the conduct of the beneficiary did not meet with their approval, and the beneficiary, having lived a good life, died before attaining the age set, and there was no revocation'of the trust, the contingent remainder-men take no interest. Neither does the legacy lapse and fall into the residuary estate, but, on the contrary, it becomes part of the beneficiary’s estate and passes to his representatives.-</p>

<p>Husband and wife — annulment of marriage—infancy — sections 1742 and 1743, Code Civil Procedure, construed —license.</p> <p>A woman who married under the age of seventeen years and who separated from her husband before arriving at the age of legal consent, eighteen years, may maintain an action to annul the marriage under subdivision 1 of section 1743 of the Code of Civil Procedure, although her parents con seated to the marriage. She is not restricted to the action for annulment created by section 1742 of the Code of Civil Procedure, which action is in fact obsolete and supplanted by the action created by the later section.</p> <p>Sections 1742 and 1743 of the Code of Civil Procedure, providing for the annulment of marriages, are in no way modified by section 15 of the Domestic Relations Law, which provides that a marriage license cannot be issued where the man is under twenty-one years of age or the woman under eighteen years unless the written consent of the parents or guardian of such minor be obtained.</p>

<p>Appeal by the plaintiff, Emilie Snyder, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26tli day of November; 1909, upon the decisión of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint.</p> <p>-The plaintiff sued for the publication by the defendant of the following article concerning her:</p> <p>“ Court Hears How Woman in Bath Tub Got Subpcena.</p> <p>“Process Server Just Walked in to Hand Papers to Her.</p> <p>“ Her Screams Drove Him Out.</p> <p>“ Naive Maid Responsible for Embarrassing Situation of Realty Man’s Wife..</p> <p>“An Irish maid’s mistake, it was brought out yesterday in the City Court before Judge La Fetra, put Mrs. Herbert R. Snyder, wife of a realty man of No. 312 West 109th Street, man embarrassing situation several days ago.. A process server was permitted to enter Mrs. Snyder’s bathroom when she was in the tub. That enabled him to serve on her a subpcena in supplementary proceedings on a judgment of $40 obtained by butcher against her husband.</p> <p>“ 6 That horrid process server,’ Mi’S. Snyder blushingly explained in court, ‘walked right into my bathroom; to serve his subpcena, and I was in the bathtub.’ -</p> <p>“ The case before the court was to have been a motion to have the subpcena vacated on the ground it was impossible for the process server to identify Mrs. Snyder in' the circumstances. It was shown that the man had retreated when he saw Mrs. Snyder in the tub because she started to scream. He served the paper, however,' by giving it to a hand which was extended from the bathroom. The fact that the hand was attached to a naked arm led the manto believe he was giving the paper to the woman whom he surprised in the tub, and he was sure that woman was Mrs. Snyder. Thompson & Ballantine of No; 27 William Street, counsel for Emil Oppenheimer, the judgment creditor, refused to tell the name of the process server, suggesting it would be harmful to the. man in his business if his identity were revealed.</p> <p>“As the lawyers told the story to Judge La Fetra, the subpcena server. reached the Snyder home shortly after Snyder had gone down town to business. Mrs. Snyder was taking her morning bath when the bell rang. Her Irish maid, mentioned in court only as Bridget, opened the door. The process server walked into the flat, and insisted on seeing Mrs. Snyder.</p> <p>“ ‘ But, sir,’ the girl said, ‘ She’s in the bathtub.’ ‘ That doesn’t make any difference,’ the man replied, ‘ I’m sure she’s very anxious to see me.’</p> <p>“ The maid took him at his word, led him to the bathroom and threw open the door. The man stepped in ánd then saw his predicament. Mrs. Snyder impressed it on him further by screaming excitedly. The man dodged out of the room, pulling the door to after him, but insisted that Mrs. Snyder come out of the tub and get the paper. She was only too willing to do that, so she could slam the door and lock it.”</p> <p>She alleged said article to be wholly false.</p>

Appeal by the plaintiff, Charlotte F. Hadden, from adjudgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of ' November, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term in a suit on two checks alleged to have been signed by the defendant’s testatrix in blank and delivered to the plaintiff and thereafter…

Appeal by'the plaintiff, the Couch Patents Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of November, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint.

Appeal by the plaintiff, Percival L. Harden, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of December, 1909, denying the plaintiff’s' motion for a commission to examine upon written interrogatories certain witnesses without the State.

Appeal by the petitioner, the Westminster Presbyterian Church of West Twenty-third' Street, 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 17th day of Hovember, 1909, confirming the report of a referee, arid also from an order entered in said clerk’s office on the 3d day of December, 1909, denying the petitioner’s motion for a resettlement of said first order.

Appeal by the defendant, William Springer, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 23d day of April, 1909, convicting the defendant of the crime of grand larceny in the first degree, and also from orders denying his motions for. a new trial and in arrest of judgment.

Appeal by the defendant, Ida Harnden, from an order of the Supreme Court, made at the Hew York Special Term and-entered in the office of the clerk of the county of Hew York on the-22d day ■ of Hovembef, 1909, directing the said defendant to appear before a referee to continue her testimony.

<p>Appeal by the defendant, the Improved Property Holding Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of May, 1909, upon the decision of the" court rendered after a trial at the New Ytirk Special Term.</p>

Appeal by the plaintiff, Marguerite' Smyth, an infant, etc., from an order of the Supreme Court, made at the Hew Lork Special■ Term and entered in the office of the clerk of the county of Hew York on the 2d day of February, 1910, denying the plaintiff’s motion to vacate an order for her examination before trial.

Appeal by the defendant, John H. O’Brien, as commissioner, 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 24th day of December, 1909.

Appeal by the defendant, D. Le Roy Dresser, 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 6th day of December, 1909, upon the decision of the court,, rendered after a trial at the ISTew York Special Term, overruling the defendant’s demurrer to an amended and supplemental reply. ■

<p>Evidence—■ admissions to physician, when not. privileged—municipal corporation — negligence — injury by defect in street.</p> <p>A physician of a hospital who attended an injured person in response to a call for an ambulance should be permitted to testify as to admissions made to him by the' injured person showing how the accident occurred, they not being privileged communications under section 834 of the Code of Civil Procedure.</p> <p>Action against a city to recover damages for the' death of a pedestrian who, it was alleged, fell into an uncovered coal hole in a sidewalk abutting on lands owned by the municipality. Evidence examined, and held, that a verdict for the plaintiff was against the weight of evidence.</p>

Appeal by the defendant, Thomas Healy, from a judgment of the Supreme Court in favor of the plaintiff, enteréd in the office of the clerk of the county of Hew York on the 12th day of Hovember, 1909, upon the verdict of a jury, rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial, made upon the minutes.

■ Appeal by the. plaintiff, Harry Fredricks, from a judgment of ■ the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 15th day of October, 1909, upon the dismissal of the complaint by direction of the court on the opening at the Hew York Trial Term,

<p>. Motion by the petitioner for a commission to take the testimony of a witness in Paris, the republic of France.</p>

Appeal by the plaintiff, Marguerite Smyth, an infant, 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 2d day of February, 1910, denying a ■ motion to vacate an order for the physical examination of the plaintiff as an advérse witness before trial.

Appeal by the plaintiff, William J. Moore, an incompetent person, etc., from á final' judgment of the Supreme Court in favor of the defendant, entered in the. office of the clerk of the county of Hew York on the 4th day of January, 1910, upon the decision of the court, rendered after a trial at the Hew Yoi'k Special Term, sustaining the defendant’s demurrer to the complaint upon, the ground that plaintiff, has no legal capacity to sue,, and dismissing, the said complaint.

Appeal by the defendant, George Maran, 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 21st day of February, 1910.

<p>Proceedings to discipline respondent for unprofessional conduct.</p>

<p>Attorney disbarred.</p> <p>Attorney disbarred for obtaining money upon the false representation that he had been retained in an action and for converting the sum so obtained to his personal use.</p>

<p>Master and servant — extra work — facts not justifying recovery.</p> <p>Action by a servant against his master to recover compensation for extra work. It appeared that the plaintiff, while receipting for a weekly wage, kept account of overtime work, but that the master had repudiated any liability therefor at various times during the period of the employment. On all the evidence, held, that a judgment for the plaintiff should he reversed as against the weight of the evidence.</p>

<p>Tax—certiorari — review of franchise tax—purpose of return—return insufficient;</p> <p>The return to a writ' of certiorari to review the assessment of a franchise tax should put the court in possession of all the material facts which induced the Board of Tax Commissioners to make the assessment, otherwise the court cannot intelligently pass upon its propriety or validity.'</p> <p>A return merely stating that the Board did'not limit itself to anyone fixed rulé or method of determining the value of the special franchise, but in arriving thereat applied the test of the so-called net earnings rule and of the so-called stock and bond theory so far as applicable to the facts and circumstances, and in the light of these tests and of all other circumstances affecting the value of the intangible property which were before it, exercised its best judgment as to the value thereof statés mere conclusions and not a single fact or circumstance which will enable the court to determine whether the assessment be legal. Hence, a second and further return will be ordered.</p> <p>Spuing and Kkuse, J.J., dissented, with opinion.</p>

<p>Cross-appeals by the plaintiff, George L. Estes, and the defendants, Erickson Perkins and others, composing the firm of Spader & Perkins, 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 26th day of Hay, 1909, upon the report of, a referee to hear and determine.</p> <p>The action was commenced on the 30th day of July, 1908, tó recover damages alleged to have been sustained by the plaintiff because of the alleged conversion by the defendants on or about the 21th day of June, 1908, of 200 shares of the common stock of the Union Pacific Railroad Company which it is claimed was the property of the plaintiff, although in defendants’ possession as a pledge to secure certain indebtedness which the plaintiff was owing to the defendants.</p> <p>The facts are found by the learned referee in great detail, and it is unnecessary to restate them because it is not urged by either counsel that such findings are not supported by evidence or that they are contrary to of against the weight of the evidence. The contention on behalf of' the defendants is that such facts do not constitute a cause of action against them. .'The plaintiff contends that-they do establish a cause off action and entitle the plaintiff to damages largely in excess of the amount awarded by the referee, and, therefore, both - ask for a reversal of the judgment and for a new trial.</p>

i Appeal by the defendant, The New York Central and Hudson . River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of thé county of Erie on the 27th day of' September, 1909, iipon the verdict. of a jury for $12,000, 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 miniates.

<p>Appeal by the. plaintiffs, Fred W. Miller 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 Orleans on the 3d day of August, 1909, upon the decision of the court, rendered after a trial at the Orleans Trial Term before the court without a jury, dismissing the complaint upon the merits.</p> <p>The action was commenced on the '7th day of January, 1909; to have it adjudged that one-half of the property received by the defendants under the last will and testament of Rosetta G. Miller, deceased, belongs to the plaintiffs herein, share and share alike,- and that such property be impressed with a trust in favor of the plaintiffs to the extent and value of their interest therein.</p>

Appeal by the defendant, the Clayville Knitting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida ón the. 6th day of July, 1909, upon the verdict of a, jury for $1,200, and also from an . order entered in said clerk’s office on the 12tli day of July, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Henry D. Dwight and others, from- a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 28th day of December, 1906, upon the verdict of a jury rendered by direction of the court, certain questions of fact having been submitted to them, and also from an order entered in said clerk’s office on the 18th day of December, 1906, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Bert L. Case, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Oswego on the 23d day of January, 1909, ■ upon the verdict of a jury; 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, and also from an order made on the trial allowing the plaintiff to amend his complaint.

Appeal by the defendants, B. H. Bacon Company and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 26th day of November, 1909, granting the plaintiff’s motion to divide the action into two actions against the defendants separately.

<p>Motion by the defendants, Daniel F. Toomey and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, the verdict of .a jury having been rendered by direction of the court in favor of the plaintiffs against the said defendants, after a trial at the Chautauqua Trial Term in May, 1909.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 25 th day of June, 1909, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of May, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the d'efeúdant, The New York Central and Hudson Biver Bailroa.d Company, from a judgment of the County Court of J efferson county in favor of the plaintiff, entered in the office of the clerk of said county on the 29th day of June, 1909, upon the verdict of a jury fór $171, and also from an order entered in said .clerk’s office on the 1st day of July, 1909, denying- the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring…

Appeal by the defendants, The Village of Seneca Falls and others, from an order of the Supreme Court, made at the Monroe Special Term arid entered in the office of the clerk of the county of Seneca on the 23d day of September, 1909, granting a temporary injunction.

Appeal by the defendant, the Crosstown Street Eailway Company of Buffalo, 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 21st day of April, 1909, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a, new trial made upon the minutes.

Appeal by the defendants, Margaret Y. Lighthouse and others, as executors, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the-county of Monroe on the 30th day of June, 1909, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by the defendant, Charles M. Otis, from a judgment of the County Court of Jefferson county, rendered against the defendant on the. 22d day of October, 1909, upon the verdict of a jury convicting him of the crime of violating subdivision 2 of section 1427 of the Penal Law, and also from an order entered on the 27th day October, 1909, denying the defendant’s motion for a new trial.

• Appeal by the defendant, The Village of Depew, 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 2d day of June, 1909, upon the verdict of a jury for $2,500, also from an order entered in said clerk’s office on the 15th day of July, 1909, amend: ing the complaint so as to increase the amount of damages asked, and also from an order entered in said clerk’s office on the same day denying the…

Appeal by the Buffalo Cigar Company and others from a decree of the Surrogate’s Court of the county of Cattaraugus, entered in said Surrogate’s Court on the 14th day of July, 1909, disallowing certain claims filed by the appellants against the estate of William P. Peterson, deceased.

Sep abate appeals by the defendants Clayton G. Landis and another, as executors, etc., and others, and by the defendant Harriet E. Fiss, as administratrix, etc., from a judgment of the Supreme Court in favor of the plaintiff and the defendant Margaret I. Crandall, entered in the office of the clerk of the county of Erie on the 7th’day of January, 1909, upon the report of a referee.

Appeal by the plaintiff, Edward Reynolds, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the' county of Seneca on the 19th day of March, 1909, upon a nonsuit granted by the court after a trial at the Seneca Trial Term.

Appeal by the plaintiff, Mary A. Adams, 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 22d day of January, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term.

Appeal by the defendant, William Hartman, from an order of the County Court of Monroe county, entered in the office of the clerk of said county on the 6th day of November, 1908, striking the ease from the calendar for the trial of issues of fact with a jury, and directing that it be heard and determined as an issue of law.

Appeal by the defendant, Mary Y. M. Kelly, from so much of a final judgnfent of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 19th day of May, 1909, confirming the report of a referee in an action for a partition as awards and allows to the plaintiff and to his attorney an additional allowance, and also from so much of said judgment as awards additional allowances to the attorneys for certain of the defendants.

<p>Appeal by the defendant, the Pennsylvania 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 Monroe on the 23d day of January, 1909, upon the verdict of a jury for $10,000.</p> <p>Also an appeal by the said defendant from an order entered in said clerk’s office on the 7tli day of December, 1909, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence.</p>

Motion by the defendant, Frank J. Moore, for a new trial upon : a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, the verdict of a jury having been rendered in favor of the plaintiff by direction of the court after a trial at the May, 1909, Monroe Trial Term.

Motion by the plaintiff, Louise O. Adenaw, as executrix, etc., for. a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the ffrst instance, upon the verdict of a jury in favor of the defendants after a trial at the Livingston Trial Term in May, 1909.

<p>Motion for leave to appeal to the Court of Appeals from a judgment of the Appellate Division, entered on the 12th- day. of January, 1910, which affirmed a judgment of the' Special Term. (See 136 App. Div. 219.).</p>

<p>Separate appeals by the Trust and Deposit Company of Onondaga, proponent, and by Amanda F. 'Parldmrst and others, contestants, from parts of a decree of the Surrogate’s Court of the county of Oswego,' entered in said Surrogate’s Court on the 28th day of October, 1909, construing the will of William E. Trumble, deceased.</p> <p>The controversy is over the construction and effect of the 4th and 5th clauses of the will of William E. Trumble, late of the .city of Oswego, which are as follows:</p> <p>“Fourth. I give and bequeath all the rest, residue and remainder of my estate, if any, to be paid out as set forth in this paragraph of this, my last Will and testament, equally to stich of my sisters, Amanda F. Parkhurst, Waty A. Hodgerneyj Eebecca J. Dalrymple, Fanny M. Tyler and Mary B. Draper, as are living at the time of my death.</p> <p>“ I hereby direct my executor, hereinafter named, to convert my estate which has not been disposed of by this will, into money and deposit the same in banks or trust companies paying interest on deposits, and to pay therefrom monthly to such of said sisters named in this paragraph of this will as are living at the time of my death the sum of forty dollars to each until such moneys and interest, are fully paid out to them.' '</p> <p>“ In case one or more of my sisters named in this paragraph of my will shall survive me, but shall die before said fund is fully paid out, then in that case from that time on, I direct my executor here7 inafter named to pay to the heir or heirs of such sister, except the heir or heirs of my sister, Amanda F. Parkhurst, the monthly sum of forty dollars until said fund is fully paid out; it being my intention and direction that the said heir or heirs, except the "heir or heirs of Amanda F. Parkhurst, shall be substituted in the place of said sister ■ and receive the said sister’s payment of forty dollars per month, and said forty dollars per month shall be divided among the heir or heirs of such sister in the proportion prescribed by law for the division of personal property among heirs of a deceased person. And in that event to that end, I hereby give and bequeath to such heir or heirs the sum or sums which he or they shall be entitled to receive under this fourth paragraph of my last will and testament except the heir or heirs of Amanda F. Parkhurst as stated above.</p> <p>“ Fifth. I expressly declare that it is my intention in this my last . will and testament, that any relative or relatives of mine not named in this last will and testament shall under no circumstance have any part of my estate unless that it may be that a relative or relatives may receive a part of my estate as provided in the fourth paragraph of this will as heir or heirs of one of the beneficiaries named in said paragraph.”</p> <p>The testator left as his only heirs at law and next of kin the six sisters named in the will, five nephews and a niece, children of a deceased sister, and another niece, a child of another deceased sister. There are twenty-four other relatives of the testator who might take a possible contingent interest in the testator’s estate under the 3d subdivision of the 4tli clause of the will.</p> <p>The only specific devise or bequest contained in the will is the sum not to exceed fifty dollars for a headstone, and the two farms to the sister, Emma A. Tyler, for life, and after her death to her children in fee; with a further provision that if the farms had been sold by him before his death, then his sister, Emma A. Tyler, should have an equal share in his estate with, the other sisters mentioned in the 4th clause of the will, as were living at the time of his death. The value of. the property attempted to be disposed of by the 4th clause of the will is upwards of $30,000.</p>

<p>Eminent domain—taking- public highway for private use—construction of railroad switch for private use — application under Railroad Law, section 30 — constitutional law.</p> <p>In a proceeding under section 20 of the Railroad Law'the court will not appoint commissioners to pass upon the feasibility and propriety of constructing a railroad switch for the benefit of a manufacturing company upon a route not described in the petition or to substitute a new route not suggested therein.</p> <p>Private property cannot be taken by eminent domain for private use. Hence, a motion made under section 20 of the Railroad Law by a private manufacturing corporation for permission to constructa railroad switch upon a public highway for petitioner’s private use will be denied where the plan includes the con- - demnation of lands belonging to private owners not included in the highway ( as well as easements in the highway owned by the abutting owners by reason ■ of the fact that they own the fee of the highway. „</p> <p>The easeme'nt of an abutting owner in a public street is private property and cannot be condemned except for public use.</p> <p>Section 20 of the Railroad Law, in so far as it assumes to authorize the taking of private property for private use, is unconstitutional and void. ■</p> <p>No one can invade a public street or highway solely for his private use. The rule that those having authority over public highways may grant certain privileges to abutting owners although the exercise thereof interferes to some extent .with the convenience of the traveling public is based on the theory that all abutting owners similarly situated also enjoy the privileges.</p>

Appeal by the plaintiff, William T. Cornell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 14th day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Broome Trial Term, and also from an order entered in said clerk’s office on the 6th day of May, 1909, denying the plaintiff’s motion for a new trial made upon the…

<p>Appeal by the defendant, Kendrick and Brown Company, from certain parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Washington on the 3d day of March, 1909, upon the decision of the court rendered after a trial at the Washington Trial Term before the court without a jury.</p> <p>The action is an action to. foreclose a mechanic’s lien against moneys due to a contractor upon a contract for the building of a schoolhouse in the towns of Greenwich and Easton in Washington county. By the judgment the plaintiff is allowed his claim in full. The appellant, a subsequent lienor, receives only a part of its claim and appeals from so much of the judgment as determines the amount applicable to the.payment of its claim.</p> <p>On May 5, 1906, the defendant ¡Richards made a contract with the board of education for the erection of a high school building. The contract price was $40,325. Later certain deductions were made. The board claims the deductions amounted to $442.50. Bichards claims they amounted only to $293.75. Bichards’ contract was completed and the building accepted by the board of education on November 7, 1907. From time to time before any liens were filed the board of education had paid to Bichards various sums ■amounting in all to $35,000. On August 10, 1907, and prior tq the filing of any liens, the First National Bank of Greenwich loaned Bichards $400 on a demand note signed by him. This note had upon it the words “ charge to bond account.” The bond account consisted of the moneys applicable to the payment of the contract. This note was indorsed upon its back,. “ This note authorized by Dr. Henry Gray, Pres’t of Board of Education, and to be deducted from next estimate.” The note was not in fact deducted from the next estimate, but the next estimate wTas in fact paid in full to the contractor Bichards. The treasurer of the board of education was the cashier of this bank and upon the thirty-first day of August this note was paid by said treasurer out of this bond account. On the 19th day of August, 1907, a lien for $1,328.35 was filed by J. H. Fielding. On August thirtieth a lien for $2,500 was filed by Parker & Cleveland. On September second a lien for $250 was filed by the Consolidated Electric Company. On September third a lien for $853 was filed by the plaintiff. On November fourth the lien of the appellant, Kendrick & BroWn, was filed.</p> <p>The appellant furnished the material for the finishing of the school building and its lien amounted to $3,293.85. Soon after November seventh the liens of J. H. Fielding, of Parker & Cleveland and of the Consolidated Electric Company were paid. After the payment of these liens and the payment of the bank note there was left unpaid upon the contract the sum of $354.08. In addition to that, the court found that the contractor should be allowed for certain extras in the amount of $1,276.36, which, together with the sum of $354.08, made the sum $1,630.44, to which the aforesaid liens, attached. Further facts appear in the opinion.</p>

<p>.. Appeal by the plaintiff, George R. Hamm, from a judgment of the County Court of Columbia county in favor of the defendant, entered in the office of the clerk of said county on the 21st day of September, 1909, reversing a judgment of the City Court of the city of.Hudson in favor of the plaintiff.</p>

<p>Railroad—negligence — collision at crossing — gates—-trial — charge.-</p> <p>Where plaintiff's intestate when intoxicated was struck by a railroad train while crossing the track about midnight in a buggy driven .by an intoxicated driver, and it appears that the crossing was guarded by gates from seven a. m. to nine p. m., but not afterwards, and that the intestate hád worked in the vicinity for several years, a charge which permits a recovery if the jury find that ordinary prudence required the operation óf the gates at the hour of the accident, without regard to their findings on other questions, is error.</p> <p>The defendant was entitled to a charge that, upon the evidence, the plaintiff's intestate had' no right to rely upon the fact that the gates were up-as an invitation to cross, and also to charge that, if the intestate knew or would have known had he been sober that the driver was in such a state as to be incapable of giving attention to driving which a prudent man would have given, the plaintiff cannot recover.</p>

<p>Animals — trespass — lease of farm and stock on shares — liability of landlord.</p> <p>The .liability for the trespass of animals is imposed not because.of ownership, but because of possession and the duty to care for them.</p> <p>Where lands stocked by the owner are rented, the tenant and not the landlord is liable for trespasses committed by the cattle which the landlord has furnished for the tenant’s use.</p> <p>Where the owners rented a farm on shares under a lease providing that they were to stock it with twenty-one cows and a bull, which they were not to remove unless they put others in their places, and the tenant agreed to furnish eight cows of his own and to keep the fences in repair, and the exclusive control of the stock and farm was left to the tenant, the landlords are not liable for damage done by the cows which escaped from a pasture and injured the crops of a neighbor.</p> <p>If any liability of the landlords were established, it should only be for the amount of damage committed by their own cattle and not for that done by the tenant’s cows.</p>

<p>Pleading — complaint—foreclosure of mechanic’s lien and for.services— proof of services — judgment.</p> <p>Where a complaint alleges the filing of a mechanic’s lien, within the statutory time limit, the rendition of the services, the value thereof, and demands judgment for the amount and also a foreclosure of-the lien, the plaintiff, although defeated on his lien, is entitled to a judgment for services rendered on proving the common-law liability, no matter what the cause of his failure to establish the lien.</p>

, Appeal by the plaintiffs, Emily L. Shuler and another, infants, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office, of the clerk of the county of Montgomery on the 2d day of June, 1909, upon the decision of the court rendered-after a trial at the Montgomery Trial Term before the court without a jury. .

Appeal by tbe defendant, Charles L. Williams, 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 Delaware on the 22d day of July, 1909, denying the said defendant’s motion to cancel and discharge a judgment and to set aside an execution issued thereon under section 150 of the Debtor and Creditor Law (Consol. Laws, chap. 12; Laws of 1909, chap. 17).

Appeal by the .plaintiff, Vincent C. King, 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 9th day of April, 1909, •upon the decision of the.court rendered.after atrial at the Saratoga Trial Term before the court without a jury.

Appeal by the defendant, Jeane Heine, from k judgment of the County Court of Fulton county in-favor of the plaintiff, entered in the office of the clerk of said county on the 19th day of February, 1909, upon the decision of the court rendered after a trial before the court without a jury. This action was brought to recover for the alleged conversion of $170 of wages or salary earned by the defendant. The defense was usury. .

Appeal by the defendants, William. J. Close and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the,office of the clerk of the county of Schenectady on the 21st day of October, 1909, upon the verdict of a mry for $3,000, reduced by direction of the court to $1,200.

<p>Carrier — railroad — liability for baggage — delivery to trainman — evidence — liability as bailee and carrier — limitation of liability.</p> <p>Where a passenger places luggage in the custody of a carrier’s employee whose . duty it is to care for it, the company is liable not only for theft by the employee but for his negligence.</p> <p>Where a passenger, carrying a dress-suit case containing necessary traveling, expenses and diamond rings suitable for her personal úse, asked the conductor to send some one to take the suit case from the train at her station,-and after-wards she delivered the shit case to a trainman who came to help her and did not see it again until he returned it to her on the platform with the money and rings missing, the railroad is liable for the loss.</p> <p>The plaintiff by delivering the suit case to the trainman did not make hini her agent, for inasmuch-as the conductor, by the railroad’s rules, was responsible for the care of the train and the conduct of the men employed -thereon, and one of the duties of the trainman was to assist passengers on and off the train and he was acting under the orders of the conductor, it will be assumed that he was acting for defendant within the scope of his employment.</p> <p>If defendant’s possession of the suit case was that of a common carrier it was an insurer and bound to redeliver what it had received; if the defendant he deemed a bailee, the plaintiff having made á prima faaie case of negligence, can recover in the .absence of an explanation of the loss.by the defendant,-</p> <p>An unexplained failure of a bailee, to deliver goods on demand is prima facie evidence of. negligence.</p> <p>A clause on a railroad ticket limiting the carrier’s liability for baggage and section 38 of the Public Service Commissions Law refer only to baggage which is checked, not to that carried by a passenger personally and delivered temporarily to the carrier’s servant.</p> <p>The plaintiff was not precluded from recovering because the suit case, which had two good clasps, was unlocked when delivered to the trainman, nor did the fact that she tipped him establish that he was in her employ.</p> <p>In such a case, however, the evidence should be clear and convincing as to the loss of property.</p> <p>Smith, P. J., dissented.’.</p>

<p>Will — annuity—when lien on land—bequest to son’s widow—rights of second wife — appeal ^-modifying judgment</p> <p>Where a'testator devised lands to his son subject to an annuity to testator’s .widow for life, and the will provided that “the annuity above mentioned is hereby made a lien upon the real estate hereinafter devised to my said son,” annuities unpaid at the death of the son are a lien upon the lands. The widow is not compelled to look to the son’s estate for payment, but can enforce her lien directly. By allowing the annuities to remain unpaid she did not waive her lien.</p> <p>Where the testator provided that, in case his widow survived his son, the lands should be divided equally between the testator’s wife and the “son’s widow and-child or children,” and the son’s wife having died after the testator, he married again, his second wife is entitled to share equally with his child in one-lialf of the lauds. A devise or bequest to a wife of a designated person is equivalent to naming her, but the word "widow” has a broader application and includes whoever answers the description.</p> <p>Where all the facts are found upon a trial at. Special Term, but the conclusions of law are erroneous, the Appellate Division will modify the judgment to conform to the facts found.</p>

Appeal by the defendants, Edward P. McKinney 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 Broome on the 19th day of August, 1909, upon the decision of the court rendered after a trial at the Broome Special Term.

Appeal by the plaintiff, Charles H. Hosier, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 9th day of November, 1909, upon the dismissal of the complaint by direction of the. court at the close of plaintiff’s case on a trial at .the Warren Trial Term.

<p>Public health —foods — sale of impure milk — delivery in foreign State — pleading — complaint.</p> <p>Where, in an action to recover penalties under the Agricultural Law for the sale of impure milk, the complaint alleges that the defendants at Dunraven, N. Y., sold a specified number of cans of milk from which the cream had been removed without marking such cans as “skimmed milk,” and shipped the same by railroad consigned to J. B. of New York city, or G. K. of Brooklyn, N. Y., and that the milk was delivered by the railroad 'to the consignee at Weehawken, N.-J., a demurrer on the ground that the complaint does not state a cause of action, as the sale was to a resident of New Jersey, and delivery was made in that State, so as to be á matter of interstate commerce, will be overruled.</p> <p>The fair inference from the complaint is that the persons named therein as consignees were dealers in milk in their respective cities, and that the milk was shipped to them for sale therein, and that for their own convenience they accepted deliver)' in New Jersey.</p>

<p>Appeal by the defendant, Bell’s Knitting Mills, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 31st day of July, 1909, upon the decision of the court rendered after a trial at the Ulster Special Term.</p>

<p>Master and servant — negligence-—-safe place to work.</p> <p>Where in an action to recover for the .death of a quarry worker" it does not appear that the superintendent was incompetent or that the quarry was not reasonably safe when he was placed in charge, and it is' undisputed that the dangerous condition was created by the progress of the work and that a daily inspection óf-tlie rock was made by the accustomed tests, a judgment against the master will bo reversed.-</p>

Appeal by the defendant, the Natural Carbonic Gas Company, from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Saratoga on the 25tli day of June, 1909, adjudging the defendant guilty of contempt of court and punishing it therefor.

Appeal by tlie defendant, Bernard Batkowsky, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of February, 1909, upon the verdict of a jury, 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>Court — removal of testamentary trustee—respective jurisdictions of surrogate and Supreme Court — duties of trustee — personal interest antagonistic to official duties—pleading—complaint in action to remove trustee. .</p> <p>The Surrogate’s Court has power to remove a testamentary trustee for the reasons set forth in section 2817 of the Code of Civil Procedure and the Supreme Court . will not act where complete relief may be Obtained in the other court.</p> <p>While the complaint in an action asking a decree removing a testamentary trustee must show that adequate relief cannot be obtained before the surrogate, it seems that the adequacy of such relief cannot be tested by demurrer.</p> <p>The Supreme Court may remove a testamentary trustee not only for the reasons which would justify such action by the surrogate, but also “for any other cause.”</p> <p>It is a fundamental rule that a testamentary trustee must act not only for the benefit of the trust estate, but in such a way as not to gain any personal advantage, directly or indirectly, except such as the law specifically gives to him..</p> <p>Hence, the Supreme Court will take jurisdiction of an action to remove a testamentary trustee where it appears by the complaint that a corporation was formed to continue a partnership business in which he and the testator each had a half interest, that the stock of the corporation is held half by the trustee individually and half by Mm and another trustee in their official capacity, and that he is receiving a salary as president of the corporation. By accepting such salary he takes a position where his personal interest may come in conflict with his duty as trustee.</p> <p>Appeal by the defendant, James T. Pyle, as trustee, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county- of New-York on the 8th day of December, 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.</p>

<p>Pleading — reply — new matter contained in answer — breach of agreement between trustee and beneficiary.</p> <p>A nephew of a testatrix who left her surviving a son since deceased, suing under section 2653a.of the Code of Civil Procedure to determine the validity of the will, which left the residuary estate in trust, a certain portion of the income to be paid to the son'for life and upon his death the remainder to the trustee, will be required to reply to new matter set up in the answer of the trustee who alleges that after the death of the testatrix in consideration of the son’s consent to the probate of the will and his promise to refrain from the use of intoxicants and drugs, the trustee agreed tó pay him a larger sum from the trust estate and to transfer the corpus to him at' the, expiration of five years if he proved himself capable of properly using the same, which promise the son failed to keep although be accepted the benefits of the agreement up to the time of his death. ■</p> <p>The objectof section 516 of the Code of Civil Procedure authorizing the court in its discretion to compel a plaintiff to reply to new matter contained in the answer is to narrow the issues and prevent surprise' at trial.</p>

Appeal by the defendants, James T. Woodward and others, as the reorganization committee, etc., and others, from that part of an order of the Supreme Court, made at the Hew, York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of December, 1909, which directs that a commission issue for the examination of a witness in behalf of the plaintiff, before trial, upon oral questions.

<p>Real property -^-restrictive covenant — erection of apartment house.</p> <p>There is no violation of a covenant limiting the buildings to be placed upon lands to first class dwelling houses by the erection of a finely built six-story apartment house, costing §75,000 and containing an elevator, telephone service, etc. '</p> <p>. In any event equity will not enjoin the erection of such apartment house where, since the time the covenant was made, the character of the neighborhood lias changed so that the land is surrounded by common tenement houses, a hospital, café, boarding houses, sanitarium and buildings used for business purposes.</p>

<p>Injunction — contract to sing in opera —breach by singing for' Other persons — injunction denied.</p> <p>An opera-singer whose contract entitles her to $200 a week fpr services for which her managef-is accustomed to pay from $1,000'to $2,000 tq-other singers for a single performance,- will not he enjoined from singing for other persons in violation of her promise not to dp so, although the contract states that she acknowledges her vopal abilities to be unique-so, as. to give to-the-manager the right to obtain an injunction in case she attempts'to break the agreement. This, because in spite of the admission in the contract, the singer’s qualifications are not shown to be unique or extraordinary, which alone justifies an injunction. -</p>

<p>Incompetent persons—application for discharge of committee—procedure—new commission unauthorized—judgment—when foreign decree cannot "be attacked collaterally.</p> <p>Section 2327 of the Code of- Civil Procedure, providing for the appointment of a Commission de lunático inquirendo, applies only to the initial proceeding for the appointment of a committee of the incompetent. Where a committee has once "been appointed, no further commission can issue to determine whether the incompetent has .regained her sanity, aa alleged, -but the proceeding should be under section 2343 of the Code of Civil Procedure which empowers the court to discharge the committee where the incompetency is at an end.</p> <p>Where it has been adjudged by the courts- of this State that a foreign tribunal adjudging a person incompetent and appointing.a committee had jurisdiction, the foreign decree cannot be attacked collaterally in this State. The incompetent claiming to be restored to sanity should proceed in the foreign tribunal.</p>

<p>Appeal by the plaintiff, the Standard Fashion Company, from an order of the Supreme Court, made at the Eew York Special Term and entered in the office of the clerk of the county of Hew York on the 31st day of December, 1909, granting the defendants’ motion for judgment on the pleadings dismissing the complaint, and also from a judgment entered in said clerk’s office on the 7th day of January, 1910, upon said order.</p>

Cross-appeals by the defendants, Susan L. Vivian, individually and as trustee, etc., and Mary M. Roberts and another, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 17th day of July, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, William T. Carlisle, as ancillary executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 20th day of December, 1909, upon the report of a referee.

Appeal by the defendants, John J. Dowling 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 17th day of February, 1910.

Appeal by the plaintiff, Martin Kretseh, 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 8th day of March, 1909, and from said order as resettled by an order entered on the 29th day of March, 1909, permitting defendant to set off a certain judgment against the plaintiff, and also from an order entered in said clerk’s office on the 8th day of March, 1909, denying the plaintiff’s…

Appeal by the plaintiff, the Aiherican Woolen Company of New York, from an- order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of November, 1909, denying the plaintiff’s motion for a bill of particulars.

Motion by the defendant, the United States Title Guaranty and Indemnity Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a verdict of a jury in favor of the plaintiff having befen rendered by direction of the court after a trial at the New York Trial Term in October, 1909.

Appeal by the plaintiff, Kathinka M. Simon, 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 12th day of November, 1909, affirming a final order of the Municipal Court of the city of New York, rendered on the 26th day of July, 1909, in summary proceedings.

<p>Appeal by the City Real Estate Company from certain parts of an .order of the Supreme Court, made at the New. York Special Term and entered in the office of the clerk of. the county of New York on the 14th day of December, 1908, confirming the supplemental and amended report of commissioners of estimate and assessment, with notice of an intention to bring up for review an order entered in said clerk’s office on the -14th day, of December, 1908, denying the appellant’s motion to return the said report to the commissioners.</p>

<p>Trust — partnership — lands purchased with partnership funds— pleading— complaint against one holding legal title—devise conditioned on promise of devisee to apply property to certain purpose — demurrer — unintelligible cause of action.</p> <p>A partner who takes title to lands purchased with partnership funds for partnership purposes cannot as against his copartners assert that he alone is the beneficial owner.</p> <p>A complaint which in substance alleges that ■ the defendant’s predecessor in title purchased lands in his own name with partnership funds for the benefit of the partnership of which the plaintiffs are members, and devised them to the defendant with an understanding that he was to hold them on the same'trust, etc., states a cause of action.</p> <p>Aside from the question of partnership such complaint states a cause of action, for when one induces a. testator to make a devise apparently absolute upon a promise, express or implied, to devote the property to a certain purpose, equity will compel him to apply it in accordance with the promise. Silent acquiescence in such agreement is as effective as an express promise.</p> <p>A demurrer tp a cause of action which is unintelligible will be sustained.</p>

Appeal by the plaintiff, Chris H. Livingston, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Dew York on the 3d day of April, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 16th day of April, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>- Appeal by the defendant, Henry A. Taylor, from 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 December, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint.</p>

<p>Trial — consent to dismissal of jury — municipal corporations — liability of railroad for percentage of gross receipts — lease of line to other company — when no estoppel by reporting receipts — lessor not jointly liable, with lessee.</p> <p>Where after mutual motions for the direction of a verdict, the plaintiff consents' to the discharge of the jury, he waives his right to have the issues submitted.</p> <p>A street railroad which:paid to the city of Mew York a percentage of its gross receipts, as required by section 95 of the Railroad Law, after having leased its line to another company, when sued by tbe city fqr ¿ further amount upon the ground thát the report of its gross receipts was not accurate, is not estopped ’ by its reports to the city from denying that it operated its road -and received-gross, receipts therefrom. This, because there can be. no estoppel unless thp person asserting it has been induced by the representation relied upon to change his possession.</p> <p>The words “gross receipts” and “gross earnings,” as used in the statute, are synonymous, and mean the receipts from fares. Hence, a railroad which, having leased its line, ran no cars has no gross receipts within the meaning of the statute.</p> <p>Where a street railroad has leased its line to another company, although retaining its corporate existence, it is not jointly liable under section 95 of the Railroad Law with its lessee. Only the corporation having gross receipts from the operation of the road is liable to pay a percentage to the city.</p>

Appeal by the defendant, Franklin Post, 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 21st day of June, 1909, upon the verdict of a jury, and also from an order entered in said clérk’s office on the 24th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1909, Confirming the report of a referee and directing the comptroller of the city of New York to,pay certain awards.

Appeal by the defendant, the. Textile Examiners and Shrinkers Employers’ Association, from an. interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of -December, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint. '

Appeal by the defendants, Louis A. Stirn and others, copartners, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 31st day of January, 1910, denying the defendants’ motion, that the complaint be made definite and certain and that the several causes of action be separately numbered.

<p>Appeal by the defendant, Robert R. Sizer & Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day'of January, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint.</p>

Appeal by the plaintiff, Belle Bemiss Barber, from an -order of . the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of October, 1909, vacating and setting aside an order of publication herein and the service of the summons and complaint and other proceedings.

Appeal by the plaintiff, Frances M. Sciolaro, from an order of the Supreme .Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 18th day of March, 1910, fixing the amount of the respondent’s lien for professional services rendered herein.

<p>Appeal to Court of Appeals — certificate that question of law is involved.</p> <p>The Appellate Division on ah application for leave to appeal to the Court of Appeals under subdivision 3 of seetion 191 of the Code of Civil Procedure, cannot determine whether the case is appealable without a certificate that a question of law is involved which ought to be reviewed, that question being for the Court of Appeals.</p>

Appeal by the defendants, The Atlantic Terra Cotta Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st'day of March, 1910, enjoining the defendant corporation, its officers, agents and representatives “ from receiving or accepting votes or recording any act or doing, anything which will aid, accomplish or result in the reduction of the number of directors of the…

Appeal by the defendant, The ¡New York Press Company, Limited, 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 22d day of ¡November, 1909, upon the decision of the court, rendered after a trial at the ¡New York Special Term, overruling the defendant’s demurrer to the complaint.

<p>Appeal by the defendant, the Improved Property Holding Company of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24tlx day of Hovember, 1909, upon the verdict of a jury, and also from an order enteréd in said clerk’s office on the 8th day of Hovember, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Hargraves Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 29th day of June, 1909, upon the verdict of a jury. '</p>

Appeal by the plaintiff, Clarence L. Barber, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the offic.e of the clerk of the county of New York on the 17th day of September, 1909, upon the verdict of a jury as awards to him the sum of $1,100 only, instead of the sum of $1-,144.85 and the interest thereon from November 14,1906, with notice of an intention to bring up for review an order entered in said clerk’s office on the 15th day of…

Appeal by Maurice Salomon and another, judgment creditors of The Rutaced 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 December, 1909, enjoining,. on the application of the assignor, proceedings'on behalf of the appellants supplementary to an execution oh a judgment recovered by them in the City Court against the Eutaced Company on the 18th day of Maj, 1909.

Appeal by the plaintiff, John H. Parks, from an interlocutory judgment of the Supreme Gdurt in favor of the defendant, entered in the office of the clerk of the county, of New York on the 30tli day of December, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to certain defenses contained in the answer.

<p>Appeal by the plaintiff, John E. Laiming, as receiver, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 15th day of December, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, James C. Fargo, as president, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1909, granting the plaintiff’s motion, for judgment on the pleadings, and also from a judgment entered in said .clerk’s office on the 21st day of October, 1909, upon •said order. The opinion delivered.at Special Term is reported in People v. Fargo (63 Misc.

•Appeal by tlie plaintiff, the Larrowe Milling Company, from a • judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county, of New.

Appeal by the relator, George E. Dutton, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 29tli day of December, 1909, pursuant to an order made at . the Mew York' Special Term and entered in said clerk’s office on the 17th day of Movember, 1909, quashing an alternative writ of mandamus, and also from the order upon which the judgment was entered.

<p>Appeal by the defendant, the New York Contracting Company —. Pennsylvania Terminal, 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 pn the 9th day.of January, 1909, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 25th day of January, 1909, denying.the defendant’s motion -for a new trial made upon the minutes.</p>

Appeal by the defendant, John J. Bradley, frpin an order of the .Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 14th day of March, 1910, denying the defendant’s motion to vacate an order for his examination. x

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of March, 1910.

Appeal by tlie defendant, C. A. Weed and- 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 21st day of February, 1910.

■Appeal by the plaintiff, Margaret Hayden, as • administratrix, etc., from so much of a judgment of the Supreme Court in part in favor of the plaintiff, and- in part in favor of the defendants Adrián H. Joline and another,' as receivers, entered in' the office of' the clerk 6f the county of New York on the 2d day of June, 1909,-as directs that the verdict rendered' by a jury in favor of the plaintiff and ■ against the said defendants be set aside and the complaint against…

Appeal by the plaintiff, Eóbért M. Whiting, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of February, 1909, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.

Motion by defendant, John Green, for leave to perfect his appeal by serving a notice of appeal on the clerk of -the Court of General Sessions of the Peace of the county of New York.

<p>Motion by the relators, Louis Buchler and another, for an alternative writ of prohibition.</p>

<p>Applioation. to disbar the respondent, an attorney and counselor at law.</p>

<p>Attorney disbarred.</p> <p>Attorney at law disbarred for forging an indorsement on checks received from his client, for the purpose of settling an action,, and for-embezzling the proceeds.</p>

Appeal, by Félix Bellando, as executor, etc., from an order-of the Supreme Court, made at the Yew York Special Term and entered, in the office of the clerk of the county-of Yew.

Appeal by the defendant, Otto Koehler, 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 December, 1909, upon the decision of the court rendered after a trial at the New: York Trial Term, the jury having been discharged, both sides having moved for the direction of a verdict.

<p>Motions to confirm the report of a referee.</p>

Appeal by the defendants, John M. Cornell and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Hew York on the 28th day of January, 1910, upon the decision of the court rendered after a trial at the Hew York Special Term overruling the defendants’ sóparáte demurrers to the complaint.

<p>Reargument of a motion to confirm the report of a referee. (See 135 App. Div. 924.)</p>

<p>Certiorari issued out of the Supreme Court and attested on the 26tli day of October, 1908, directed to the Public Service Commission of the First District of the State of Mew York and to William R. Willcox and others, members thereof, 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 denying the relator’s application for leave to issue stocks' and bonds.</p>

Appeal by the plaintiff, George A. Higgins, 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 30th day of Hovembér, 1909, denying the plaintiff’s motion to vacate an order for his examination before trial.

<p>Appeal by the relator, Isaac Himmelstein, from an order of the County Court of Rings county, entered in the office of the clerk of said county on the 27th day of December, 1909. '</p>

<p>Libel pleading—innuendo — promoter defined — words affecting one in his professional capacity—words not libelous as to president of . corporation;</p> <p>An innuendo in a complaint for libel does not enlarge the meaning of the words; its purpose is to define them, or to show that they relate to the plaintiff. “Promoter” of a corporation-defined.</p> <p>A promoter does not necessarily have to do with the paying in of the capital of the corporation. Nor is the president Of the corporation necessarily connected with its organization,- even though he. had been a promoter,.</p> <p>Words that disparage an officer,, professional man or trader ¡are not actionable per se. They must touch him in his office, profession or trade; that is to say, they must be-shown to have been spoken of him in relation thereto and to Be such as would prejudice him'therein.</p> <p>A publication which in substance alleges that the Attorney-General and Insurance Department contend that the capital and surplus of a- corporation when certified as having been paid in cash were to a large extent fictitious-, and that the plaintiff is the president of the company,-is not libelous as against him, . if there be no statement connecting him with the fraudulent acts.</p>

<p>Court—Municipal Court— vacating judgment — amendment to section 253) of Municipal Court Act is retroactive.</p> <p>Chapter 304 of the Laws of 1907, amending section 253 of the Municipal Court Act so as to authorize a justice of that court to vacate a judgment taken, by default and without service of summons, is retroactive, as it -affects the ' remedy only.</p> <p>Hence, a judgment entered by default and without service of process prior to said amendment may be vacated on a motion made after the amendment took effect. -</p>

Appeal by the defendant, The New York, New Haven and Hartford 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 Westchester on the 12th day of July, 1909, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>8demission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Malicious prosecution — evidence — practice — reserving decision on motion for nonsuit — general verdict—power of Appellate Division to reinstate verdict — record.</p> <p>Action for malicious prosecution by an employee against his former master, a real estate broker, who had had him arrested on the charge of grand larceny for receiving compensation for services from a customer. Evidence examined, and held, that the question as to whether the defendant had probable cause to believe that the money received was part of the commission belonging to him was for the jury and an order setting aside the verdict should be reversed.</p> <p>Where the decision of a motion for nonsuit is reserved the jury can only render a special verdict or assess damages. It has no power to give a general verdict.</p> <p>Where the decision on a motion for nonsuit was reserved and defendant excepted, and, after the the jury had rendered a general verdict for plaintiff, it was set aside and the nonsuit granted, the Appellate Division on reversing the judgment entered on the order dismissing the complaint cannot reinstate the verdict unless the defendant assents thereto.</p> <p>Where it is desired on appeal to reinstate the special verdict of a jury the record should present all the objections and exceptions of both parties.</p> <p>The practice of reserving decision upon a motion for a nonsuit and then taking a general verdict is not only unauthorized but unfair.</p>

<p>Election Law—mandamus — limitation—review of determination of inspectors—requisites of moving papers.</p> <p>A proceeding under the Election Law for a judicial review of the acts of inspectors in counting void and protested ballots must be begun within twenty days after, the election.</p> <p>The determination of.inspectors of election as to. the result of the vote on a.town proposition submitted is conclusive,, except in so far as review is allowed -by statute. • . ' • -</p> <p>-Where an application to compel inspectors of election to correct their canvass is based upon the grounds that the board erred in its determination in regard to certain void- and protested ballots, and that in one of the districts the canvass was made by only part of the inspectors, the case is one of erroneous canvass, not an incomplete one. Even if it should be considered incomplete as to the one district, the court will not interfere in the absence of allegations of facts showing that the result will be affected by a recount in that district. . ■</p> <p>The court, in its discretion, may decline to interfere to ■ correct irregularities which do not affect the result of an election.</p>

Appeal by the plaintiffs, Charles P. Notman and another, composing the firm, etc., from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of- the county of Kings on the 13th day of November, 1909, setting aside the verdict of a jury in favor of the plaintiffs and granting a new trial.

<p>Appeal by the plaintiff, Herbert O. J ones; from, part of a judgment of the Supreme Court in. favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 18th day of December, 1908, upon the decision of the court, rendered after a •trial at the Suffolk Special Term, dismissing the complaint upon the merits in an action brought to foreclose a mechanic’s lien.</p>

<p>Attachment — foreign corporation—when moving papers insufficient.</p> <p>An attachment against a foreign corporation cannot issue under sections 635 and 636 of the Code of Civil Procedure in an action to recover for goods sold where the moving papers, though making a positive allegation that-the defendant is a foreign corporation, do not give the sources of the affiant’s knowledge or state facts indicating that the averment is made upon personal knowledge..</p>

<p>Railroad—negligence — erroneous refusal, to charge.</p> <p>Where in an action to recover for personal injuries alleged to have been received" by a- passenger through the sudden starting of a street car- while" he was alight- ■ ing, the plaintiff’s testimony is controverted by evidence that lie was injured. • while attempting -to alight-against the caution of the conductor'while the car was in motion, it is error to refuse tó charge that the jury must find, for the defendant, if the accident happened as stated by the defendant’s witnesses.</p> <p>Hibschbebg, P. J., dissented.</p>

Appeal by the plaintiff, Rich W. Hollaman, from a judgment of the Municipal Court of the city of JSTew York, borough of Brooklyn, in favor of the defendants, rendered on the 20th day of November, 1909, dismissing the complaint, and also from an order denying the plaintiff’s, motion for a new trial.

<p>Tax—tenancy by the curtesy — nature of curtesy.</p> <p>A husband’s tenancy by the-curtesy is not subject to a transfer tax.</p> <p>The nature of tenancy by the curtesy, both-1 before and .after the passage of the Married Women’s Acts, discussed per Thomas, J.</p> <p>Woodward, J., dissented, with opinion.</p>

<p>Landlord and tenant— lease — acquisition of- title by city — destruction of premises —surrender.</p>

Judgment affirmed, with costs, upon the opinion of Mr. Justice. Thomas at Special Term ; Hirschberg, P. J., Jenks', Rich and Carr, JJ., concurred; Burr, J., dissented on the ground that the evidence does not establish dedication on the part of the city. The following is1 the opinion delivered at Special Term;

<p>Appeal from a judgment entered in the Hew York county clerk’s office on the 22d day of June, 1909, on a verdict and from orders denying motions to dismiss complaint and for a .new trial, and granting motion for an ex,tra allowance.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 16th day of April, 1909, on a verdict, and from an order denying a motion for a new trial.</p>

<p>. Appeal by the defendant Oliver J. Wells from an order entered herein o.n the 2d day of December, 1909, granting plaintiff’s motion to strike out certain portions of the answer of said defendant.</p>

<p>Appeal from an interlocutory judgment entered in New York county clerk’s office on the 14th day of October, 1909, sustaining, a demurrer to the complaint.</p>

<p>Appeal from a judgment entered in New York county clerk’s office on the 12th day of November, 1909, upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 18th day of January, 1910, continuing an injunction pendente lite.</p>

<p>Appeal from an order entered in the New York county clerk’s office On the 1st day of February, 1910, requiring the answer to be made more definite and certain.</p>

<p>Appeal from a judgment entered in New York .couty clerk’s office on the 38th day of October, 1908, upon the verdict of a jury, and from an order denying a motion for a new trial. ,</p>

<p> Attorney and client—disbarment. </p>

<p>Appeal from a judgment entered in New York county clerk’s office on the 8th day of October. 1909. upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 14th day of January, 1910, directing the plaintiff tq furnish a further bill of particulars.</p>

<p>Venue—motion to change place of trial — residence.</p>

<p>Practice — motion to strike out answer as frivolous — counterclaim.</p>

<p>Pleading — complaint—motion to strike out.</p>

<p>Cross-appeals, from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 14th day of May, 1909.</p>

<p>Will — trust — (cumulation of income — valid and invalid provisions — power of sale.</p>

<p>Appeal from an order entered in the Hew York county clerk’s office on the 4th day of March, 1910, denying a motion to vacate an order directing the examination of Harold J. Button.</p>

<p>Attorney and client — holding money belonging to client.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 21st day- of March, 1910, granting the motion of the defendant Bennett and striking out parts of the supplemental complaint as irrelevant.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 5th day of March, 1910, granting a motion for an accounting.</p>

■ Appeal from an order entered in the New York county clerk’s office on the 10th day of February, 1910, denying a motion for a stay of certain proceedings.

<p>Appeal from an order entered in the Hew York county clerk’s office on the 6th day of April, 1910, denying motion to compel assignee of purchaser at.a judicial sale to complete purchase. '</p>

<p>Appeal from an order as resettled, entered in the Hew York county clerk’s office on the 1st day of February, 1910, which ordered that Kingsley L. Martin, commissioner, etc., be added as a party defendant, etc.</p>

<p>Appeal from an order entered in the/Hew York county clerk’s office on the 10th day of April, 1910, denying a motion for a preference.</p>

<p>Appeal from a judgment of the Court of Special Sessions, First Division, Children’s Part, entered on the 3d day of June,-1909, convicting the defendant of grand larceny, second degree.</p>

<p>Appeal from a judgment entered in Hew York county clerk’s office on the 23d day of October, 1909, upon a verdict and from an order denying a motion for a new trial.</p>