Volume 138 — New York Appellate Division Reports

<p>Appeal by the plaintiff, Filippo Todaro, from an interlocutory judgment of the Supreme Court in favor of the defendant the City of New York, entered in the office of the clerk of the county of Kings on the 15th' day of November, 1909, upon the decision of the court, rendered'after a trial at the Kings County Special Term, sustaining the said defendant’s demurrer to-the complaint.</p>

Appeal by the defendant, Pan! Gross, from a judgment of the County Court of Queens county in favor of the plaintiff, entered' in the office of the clerk of said county on the 9th day óf April, 1909, upon the decision of the court rendered after a trial at a Special Term of said .court, and from said judgment as modified by an order entered on the lOtli day of May, 1909, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 1st day…

Appeal by the defendant, Melvin E. Bellinger, from a judgment of 'the Municipal Court of the city of New York, borough of Brooklyn, in .favor of the plaintiff, rendered on the 8th day of N ovember, 1909..

Appeal by the plaintiff, the State, Board of Pharmacy, from a judgment of .the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 17th day of December, 1909, dismissing the complaint upon the merits.

Appeal by' the defendant, James C. .Fargo,- as President, etc., from a judgment of the Supreme Court in favor of' the plaintiff, entered in the office of the clerk of the county of Dutchess on the 26th day of May, 1909, upon the verdict of a, jury for $2,500, and. also from an order entered in said clerk’s office on the 22d day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the- defendant, the Town of North Salem, from an order of the County Court of Westchester county, entered in the office, of the clerk of said county on the 20tli day of November, 1909, denying a motion to vacate an order, entered in said clerk’s office on the 8th day of November, 1909, which granted a new trial' .as against the said defendant, with notice of an intention to bring up for review the said order granting a new trial.

Appeal by the defendant, Phillip Friedman, from a judgment of the Court of Special Sessions of the Second Division of the City of New York, rendered against him on the 20th- day of May, 1909.

<p>Appeal by the defendant, William H. Sanger, from a judgment óf the Supreme Court in part in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the 26th day-of February, 1909, upon the verdict of a jury, also from an order entered in said' clerk’s office on the same day denying a motion for a- new trial made upon the minutes, and also from an order entered in said clerk’s office on the 17th day of November, 1909, denying the appellant’s motion for a new trial on the ground of newly-discovered evidence.</p>

<p>Municipal corporations — sewer assessment —.when court without jurisdiction to modify plan of assessment — needs of general public controlling — remedy under section 959, New York city charter.</p> <p>Where an assessment apportioning the cost of a sewer among persons benefited did not need confirmation by the court but originated with the municipal authorities and was to be determined by them without judicial action, the court cannot grant relief under section 959 of the charter of the city of New York to a person assessed for benefits received upon the ground that the method of apportioning the cost was erroneous. This, because such apportionment is wholly á matter of legislative policy resting within the discretion of a legislative rather than a judicial branch of the government, so long as it is not inconsistent with the fundamental law of the State.</p> <p>It seems, that the court will intervene to protect citizens only where the assessment is not for a public purpose or where there is fraud or extravagance, or some essential element in the scheme of taxation is wanting.</p> <p>The validity of a sewer assessment for benefits conferred cannot be attacked upon the ground that the person, assessed was personally satisfied with the existing sewer system, for the needs of the general public within the district are paramount.</p> <p>A determination of the board of assessors, affirmed by the board of revision, that the entire sewer improvement should be taken as a whole and that lateral connecting sewers or enlarged or changed sewers along the entire line should be included in the entire cost and paid for by the whole territory benefited is conclusive, even though the court may think that another method of apportioning the cost would be more equitable.</p> <p>Such determination cannot be interfered with by the court under section 959 of the charter of the city of New York on the theory that the assessment has been increased by a ‘‘substantial error.”'</p> <p>On an application under section 959 of the chartér.of the city of New York for a modification of a sewer assessment, the question is not whether the petitioner has any remedy .for his alleged grievance, but whether he is entitled to the particular statutory remedy.</p>

<p>Appeal by Mary Fox, an alleged incompetent person, and by Elizabeth Fox Yaden and another, children and heirs at law of Mary Fox, 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 lSth day of November, 1909, resettling an order entered in'said clerk’s office on the 25 th day of October, 1909.</p>

Appeal by the defendant, New and Beaver Street Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Nassau on the 22d day of J tine, 1909, upon the verdict of a jury-; also from an order entered in said clerk’s office on the 24tli day of June, 1909, denying the defendant’s motion for a new trial made-upon the minutes, and also (as stated in the notice of appeal) from an order entered on the 2d day…

<p>Appeal by the defendant, Albert Hergenhan, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 4th day of November, 1909, upon the verdict of a jury rendered by direction of the court, arid also from an order entered in said clerk’s office on the 13th day of November, 1909, denying the defendant’s motion for a new trial made upon the.minutes.</p>

Appeal by the defendant, William H. Bauer, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 19th day of March, 1909, in an action brought to- recover payments made by the respondent to the appellant under the provisions of a conditional contract for the purchase of real property.

Appeal by the plaintiffs, May M. Gugel and another, from a judgment of the Supreme Court in favor Of the defendants, entered in the office of the clerk of the county of Queens on the 28th day of July, 1909, upon the decision of the court, rendered after a trial at the Queehs County Special Term, dismissing the complaint upon the. merits in an action brought to cancel and set aside an agree-, ment and deed alleged to have been procured by defendants’ fraud and…

<p>Decedent’s estate—liability of devisee for debt due from testator as stockholder of insolvent bank — Statute of Limitations—when statute begins to run on suit against devisee — such suit is in equity and ten years’ statute applies —judgment against executrix does not bind her as devisee — inability of creditor to proceed in Surrogate’s Court.</p> <p>The Statute of Limitations in an action against a devisee under section 101 of the Decedent Estate Law (Consol. Laws, chap. 13) for the debt of the testator as a stockholder of an insolvent bank does not begin to run, where the testator contested his liability, until that liability is determined by a final judgment against his estate establishing the amount of the deficiency with which he is chargeable.</p> <p>Moreover, the fact that a testator was a stockholder in a bank and contingently liable under the statute to its creditors, creates no cause of action against his devisee. The action against the devisee arises only under the Decedent Estate Law on the death of the testator, and this only for the proportion of the deficiency for which the testator was liable, not exceeding the value of the property devised. Hence, no cause of action arises against the devisee until the death of her testator.</p> <p>A creditor’s action to enforce the liability of a stockholder of a bank is in equity and where the creditor seeks to enforce that liability ^against the devisee of a stockholder the suit is still equitable and the ten years! Statute of Limitations applies. •</p> <p>Where, pending an action against the stockholder of an insolvent bank to charge him with the statutory liability, he dies and the action is continued against his executrix, the judgment establishing the liability does not bind her individually although she be his devisee. To charge her in the latter capacity proof of all the facts established in the action against her as executrix is required.</p> <p>Such devisee cannot escape liability for the debt of her testator as stockholder of an insolvent bank established by a judgment on the theory that the creditor should have proceeded in the Surrogate’s Court to sell the lands of the testator within three years after the issuance of letters testa,mentary, where it appears that the executrix contested the liability for five years following her testator's death so that the creditor was in no position to avail himself of the provisions of the Code.</p> <p>The statutory liability of a testator as the stockholder of a bank is one arising by . “simple contract” within the meaning of section 101 of the Decedent Estate Law so as to impose the liability upon a devisee to the extent of the real property devised.</p>

Appeal by the plaintiff, the Rochelle Park Association, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 10th day of August, 1909, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits in an action to recover annual dues alleged to be payable by the defendant as a member of the association,

Arpead by Elizabeth McGowan from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 11th day of February, 1910, directing that letters testamentary be issued to the respondent herein.

Appeal by Robert B. Lamb, as Superintendent of the Matteawan State Hospital, from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the bounty of Dutchess on the 14th day of February, 1910.

Appeal by the plaintiff, Marcus Heim, 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. 10th day of September, 1909, denying the plaintiff’s motion for a preliminary injunction. .

<p>Application to discipline an attorney.</p>

<p>Attorney disbarred.</p> <p>Attorney at law disbarred for converting moneys received by him to be held as trustee until a certain mortgage was delivered pursuant to the provisions of a contract which was a part of a device to swindle the person from whom the money was received.</p>

Appeal by the-plaintiff, Percy S. Hildreth, 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 2d day of February, 1910, upon the decision of the court, rendered after a trial at the New York-Trial Term a jury having been waived, dismissing the complaint herein.

<p>Appeal, by the defendant, Lee Gwynn Lawrence, 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 1st day of November, 1909,, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of October, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

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

<p>Appeal by the defendant, Benault-Fréres Selling Branch, Incorporated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of August, 1909, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 26th day of July, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Louis Morris, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 24tli day of February, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s ease on a trial at the New York Trial Term.

Appeal by Mary Isabella McMillan and others, as administrators, etc., from parts of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 25th day of January, 1910, settling the accounts of a trustee.

Appeal by the defendant, the Harrison Street Cold Storage 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 28th day of March, 191.0, denying the defendant’s motion for leave to serve an amended answer.

Appeae by the defendant, Morris J. Werner, from a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 27th day of November* 1909, upon the verdict-of a jury, and also from an order entered in said clerk’s office on the 24th day of November, 1909, denying the defendant’s motion for- a new trial made upon the .minutes.

<p>Appeal by the defendant, The New York City Eailway 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 18th day of June, 1909, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered On the 18th day of November, 1907, for the sum of $272.</p>

Appeal by the defendant, the- New, York City 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 18th day of June, 1909, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered on the 18th day of November, 1907, for the sum of $272. '

Appeal by the defendants, The F. G-. Brewster 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 9th day of March, 1910, permitting and directing 'the plaintiffs to make and serve a supplemental complaint herein;

Appeal by the plaintiff, Frank Gr. Potts, from an interlocutory judgment of the - Supreme Court in favor of the defendant (as amended), entered in the office of the cleric of the county of New York on the 7th day of January, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to new matter set up as a defense in the amended answer.

<p>Arbitration—appeal from judgment on award —review of interlocutory order—case.</p> <p>Where a report of arbitrators has been confirmed the appeal should be taken from the judgment entered on the award, not from the order confirming the report.</p> <p>One appealing from a judgment entered upon an award of arbitrators must file a case and exceptions showing the proceedings before the arbitrators if he desire to question the propriety of the award. If he desire to review the order confirming the award, it must be,specified in the notice of appeal.</p>

Appeal by the plaintiff, James J. Hoey, 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 17th day of March, 1908, upon .the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the' 6th day of April, 1908, denying the plaintiff’s…

Appeal by the plaintiffs, Girarles H. Hart and others, from an interlocutory judgment of the Supreme Court in favor of the defendants,, entered in the office of the clerk of the county of New York on the 1st day of March, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer to the complaint.

<p>Certiorari issued,out of the Supreme .Court and attested on the1 8th day of December, 1909, directed to William E. Stillings, chairman, and others, commanding them to certify -an.d return to the office of the clerk of the county of New York all and singular their record and proceedings had in respect to the awarding of certain damages to the Central Trust Company-of New York, as substituted trustee under the last will and testament of Jason Rogers, deceased.</p>

<p>Appeal by the plaintiff, the Illinois Surety 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 24th day of March, 1910, denying the’.plaintiff’s motion for an injunction pendente lite restraining the defendants and all other persons having claims against the plaintiff from prosecuting the same.</p>

Appeal, by the plaintiffs, Oscar B. Bergstrom and another, doing business under the firm name, 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 14tli day of March, 1910, denying the plaintiffs’ motion to vacate an order for the examination of Oscar B. Bergstrom as a witness before trial.

Appeal by the defendants, Peter J. Byan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of April, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, in an action to foreclose a mechanic’s lien.

Appeal by the petitioner, 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 30th day of December, 1909, in so far as said order confirms the report of commissioners of estimate and assessment awarding certain damages to the respondent.

Appeal by .the defendant, George W. Hoadley, 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 22d day of October, ' 1909, upon the verdict of a jury rendered by direction of the court pursuant to a special verdict of the jury.

<p>Eminent domain — street opening, city of New York — condemnation of fee burdened by private easements — nominal award — agreement to convey lands abutting on proposed street prior to acquisition of title by city — equitable conversion.</p> <p>When lands already burdened with private easements are condemned on a street opening, the value to the owner is less than it would be-if the lands were unincumbered, and he is only entitled to a nominal award.</p> <p>Where an owner, in order to avoid the effect of the rule aforesaid, delayed filing a map showing a street Which the city proposed to condemn, and, after having entered into contracts to sell lots bordering on the proposed street, induced the city to take title at an early date and delayed conveying to the purchasers until the city acquired title, only a nominal award should be made for the fee of the street taken.</p> <p>This, because the contract of sale made prior to the time the title vested in the city entitled the vendees not only to the lands bought, but, on the principle of equitable conversion, to easements in the proposed streets which the vendor continued to hold in trust for his vendees.</p> <p>On a contract for the purchase and sale of lands the vendee becomes the equitable owner, the vendor continuing to hold legal title merely as security for the payment of the purchase money.</p> <p>It is immaterial that the vendor, when inducing the city to take title at an early date, promised to pay the assessment levied on the lands • taken, as such agreement merely enhanced the purchase price of the lands.</p>

<p>Bills and notes — liability of indorsers as among themselves — when prior indorsers can hold subsequent indorser for contribution.</p> <p>While indorsers of a negotiable instrument, as respects one another, are prima facie liable in the order in which they indorse, it may be shown that they agreed otherwise. Such agreement need not be established by proof of a formal contract. It is sufficient if the surrounding circumstances indicate that the indorsements were made upon an understanding that all indorsers should ■ participate in the liability.</p> <p>Thus, where several parties indorse a. promissory note to enable a stranded theatrical company to get home, and to give the instrument credit with a bank, so that all are equally benefited, a prior indorser who has been compelled to pay may maintain an action against a subsequent indorser for contribution.</p>

Appeal by the defendant, Charles D. Steurer, 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 25th day of October, 1909, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 22d day of October, 1909, denying the defendant’s motion for a. new trial made upon the minutes.

Appeal by the plaintiff, Albert H. Dollard, from an order of the Appellate Term of the Supreme Court, bearing date the 21st day of March, 1910, and entered in the office of the clerk of the county of New York, reversing an order of the Oity Court, entered in the office of the clerk of said court on the 9th day of October, 1909, which adjudged Max' E. Bloch guilty of contempt of court and provided for punishment therefor.

Appeal by the defendants, Maurice Leon and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of June, 1909, upon the decision of the court rendered after-a trial at the New York Special Term.

Appeal by the defendant, Louis Kommel, 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 October, 1909, upon the verdict of a jury, and also from an ordpr entered in said clerk’s office on the 22d day of October, 1909, denying the defendant’s motion for a new trial made upon'tile minutes.

Appeal by the defendant, the Pennsylvania Steel Company, n-om 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-Sth day of January, 1910, upon the verdict of a jury for $5,000, and also' from an order, entered-in said clerids office on the 10th day of January, 1910- denying the defendant’s motion, for a new trial made upon tire1 minutes. ......

Appeal by the relator, Charlotte Y. Ackerman, 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 March, 1910.

<p>Motion 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 New York Trial Term in April, 1909. "</p>

Appeal by the defendant, the Western Pacific Railway 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 9th day of October, 19Q9,.appointing.a referee to take proof and report upon a motion to set aside the service of the summons and complaint herein.

<p>Appea.l by the plaintiff, Ferdinand Steiger, from so much of an order of the Supreme Court, made at the New York Special Term ánd entered in the office of the clerk of the county of New York on the lltli day of April, 1910, as denies' the plaintiff’s motion to compel the defendants, London and Press, to restore and replace in the judgment roll a bill of particulars.</p>

Appeal by the defendant, Henry S. O’Brien, 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 o.n the 21st day of March, 1910, vacating an order for the examination of the plaintiff before trial.

. Appeal by the Calendar Realty 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 17th day of November, 1909, confirming the report of commissioners of estimate and the report, of the commissioner of assessment herein.

<p>Appeal by the defendant, the Crane 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 10th day of February, 1910, denying the defendant’s motion to require the plaintiff to make the complaint more definite and certain:/</p>

<p>Appeal by the plaintiff, Henry Corn, from a judgment of the Supreme Court in favor, of the defendants, entered in the office of the clerk of the county of New York on the 26th day of November, 1909, upon, the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the defendant, Max Lipman, 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 3d day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of November, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal, by the defendant, Grace B. Wahl, 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 February, 1910, granting the plaintiff’s motion to continue a temporary injunction pendente lite.

Appeal by the'defendant, Henry White, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day • of March, 1910, denying the defendant’s motion to refer the issues .herein to a new referee.

Appeal by the plaintiff, Maria Josephine Yentriniglia, 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 March, 1910, denying the plaintiff’s motion, under section 547 of the Code of Civil Procedure, for ¡judgment on the pleadings arid dismissing the complaint.

<p>Appeal by the plaintiff, The United States Fidelity and Guaranty 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 8th day of March, 1910.</p>

Appeal by the defendant, Harriet E. Selleck, 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 26tli day of March, 1910, granting the plaintiffs’ motion for the appointment of a referee to hear and determine the issues, including the taking of accounts.

Appeal by the plaintiff, William H. Schmohl, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1910, denying the plaintiff’s motion to punish the defendant for contempt.

<p>Appeal by Charles H. Gaus, as Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 30th day of June, 1909, .which modified an order entered in said court, on the 26th day of October, 1908, confirming the report of the appraiser herein and fixing the amount of the transfer tax. (See 63 Misc. Rep. 618.)</p>

Appeal by Frederick Dietz, individually and as trustee, etc., and others, from part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the. clerk of the county of New York on the 22d day of March, 1910, instructing the trustees how to vote certain shares of stock at an election of directors of a corporation.

Appeal by the plaintiff, Rebecca I. Goldsmith,: from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of February, 1910, upon the decision of the court, rendered after a trial at the New York Special- Term, sustaining the defendant’s demurrer to the amended complaint.

Appeal by George H. Hides,, general assignee for the benefit of creditors of The Van Bensselaer Bealty 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 4tli day of March, 1910, denying the appellant’s motion to resettle and modify an order appointing a temporary receiver of the defendant corporation in an action to sequestrate its property.

Appeal by the petitioner, James S. McDonogh, 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 22d day of March, 1910, denying the petitioner’s motion for an order directing the committee of the property of Isaac C. Wickes to pay a claim.

Appeal by the plaintiff, Joseph A. Caras, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 5th day of June, 1908, affirming a judgment of the Municipal Court of the city, of New York in favor of the defendants rendered on the 18th day of February, 1908, sustaining the defendants’ demurrer to the reamended complaint' and dismissing said complaint.

Appeal by the defendant, Dane A. Pearson, 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 4th 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 defendants, Katharine T. Martin 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 New York on the 17th day of December, 1909, upon the decision of the court, rendered after a trial at the Mew York Special Term, construing a will and directing an accounting.</p>

<p>Partnership — sale of partnership interest and good will — right to carry on competing business — dealing with customers of old firm — hiring former employees — use of trade marks and sale of articles subject to exclusive agency.</p> <p>Where one partner purchases the interest of his copartners, including the good will of the business, trade marks, and other property, shortly before the time set for dissolution, with knowledge that the vendors intend to engage in a competing business, they having previously declined to promise not to do so,' and the vendee after the sale discharges the foreign purchasing agent of the old firm, the vendors will not be enjoined from trading with customers of the old firm within the limits of fair competition, where possible customers are limited in number owing to the nature of the business. Mor will they be enjoined from employing the former agent after his discharge.</p> <p>Authorities bearing on the right of a partner who has sold his interest to deal with customers of the former partnership, collated and discussed per Miller, J.</p> <p>A contract not to engage in a business if unlimited in respect to time and place is void as against public policy.</p> <p>Moreover, the vendors are entitled to deal with brokers through whom the old firm did business, where the brokers are not under contract to sell exclusively for the old firm, but are at liberty to deal with whomsoever they please.</p> <p>So, too, the vendors are entitled to employ a salesman who voluntarily resigned his position with the vendee and sought the new employment, though they have ho right to entice employees away. .</p> <p>But the vendors will be enjoined from soliciting the agency for the sale of articles of which the old firm had an exclusive agency, and from soliciting orders for goods packed under special labels and trade marks 'devised by the ' old firm for special customers.</p>

Ceetioeaei issued out of the Supreme Court and attested on the 8th day of June, 1909, directed to William E. Willcox and others, as commissioners, etc., commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the issuance by them of a certain order abating a nuisance.

Appeal by the -defendant, the Illinois National Bank, 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 21st day of July, 1909, upon the report of a referee to hear and determine.

Appeals by the petitioners, the Grade Crossing Commissioners of the City of Buffalo, and by The New York Central and Hudson Hi ver ¡Railroad Company and the West Shore Railroad Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of' Erie on the 1st day of July, 1908, appointing commissioners of appraisal in the above-entitled proceeding; also appeals by said parties and the city of Buffalo from the…

<p>Will—construction — partition—right of owner of vested remainder.</p> <p>That construction of a will which vests the title to the property devised immediately upon the death of the testator will be preferred.</p> <p>Where a will provided that at the death of oneE., or in case she should die before testator's wife, then at the death of the wife, or in case testator should survive both, then at his death, testator gave certain property to the three youngest children then living ” of E., the phrase “ then living ” refers to the death of the testator.</p> <p>The three children of E. living at testator’s death, having a vested remainder, any one of them may maintain partition and, if the life tenant consent, a sale may he had.</p>

<p>Appeal by the defendant, Faxon, Williams and Faxon, 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 Jt-b. day of July, 1909, upon the verdict of a jury for $2,000, which was thereafter reduced to $1,000, and also from two orders, entered in said clerk’s office on the 23d day of June, 1909, denying the defendant’s motions for a new trial.</p>

<p>Contract — sale of medicine by druggist — breach of warranty — failure to supply drug asked for — new trial — right to incidental damages.</p> <p>A druggist is not legally responsible for any unintentional consequential injury resulting from a lawful act unless failure to exercise due and proper care be . shown.</p> <p>Where the plaintiff asked a druggist’s clerk for cascara segrada and he sold him a proprietary medicine labeled “Kascara Kathartios,” telling him that it was cascara, although, in fact, it was not, an action will not lie for breach of warranty to recover damages for illness resulting to plaintiff’s wife from taking the medicine.</p> <p>In an action to recover substantial damages, a. new trial will not be ordered to enable plaintiff to recover nominal damages which are a mere incident .to the chief claim.</p>

Appeal by the plaintiff,-Emil Carlson, from a'judgment of the Supreme Court in favor of the defendant, entered in .the office of the clerk óf the county of Chautauqua on the 19th day-of February, 1909, upon a nonsuit granted by the court at the close of plaintiff’s case on a trial at the Chautauqua Trial Term,

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 thy clerk of the county of Onondaga on the 8th day of February, 1909, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Lackawanna Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 17th day of November, 1909, upon the verdict of a jury for $4,750, and also from an order entered in said clerk’s office on the 2d day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, The New York, Auburn and. Lansing Eailroad Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county Cayuga on the 7th day of October, 1909, upon the report of a referee dismissing the plaintiff’s petition herein.

Appeal by the plaintiff, Claude C. Anable, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of. Jefferson on the 17th day of December, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Jefferson Trial Term.

Appeal by the defendant, The Niagara Falls Hydraulic Power and Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara 'on the 4th day of February, 1909, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 15th day of January, 1909, denying the defendant’s motion for a-new trial made upon the minutes.

Appeal by the relator, Guiseppe Mengione, from an order made by the County Court of Monroe county, and entered in the office of the clerk of said county on the 2d day of February, 1910, dismissing a writ of habeas corpus and remanding one Angelo Mattruccio to the custody of the respondent. ,

<p>Appeal by the defendant, Bert H. Henion, as executor, etc., from an order of the Supreme Court,' made1 at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 24th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiffs, Harry R. Williams and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 27th day of November, 1909, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the complaint herein.</p>

<p>Appeal by the defendant, the Davis and Furber Machine Company, 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 20th day of March, 1909, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 23d day day of March, 1909, denying the defendant’s motion for a new trial made upon the minutes,</p>

Appeal by the defendant, Robert J. Pierce, 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 19th day of November, 1909, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the defendant, John Burleson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 8th day of May, 1909, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The O’Dell & Eddy Company, from' a judgment of the Supreme Court-in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 3d day of May, 1909, upon the verdict of a jury for $2,246, 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 petitioner, the Town Board of the Town of Boyalton, from an order of the Public Service Commission, second district, entered in the office of .the secretary of said Commission on the 19th day of May,, 1909.

Appeal by the plaintiff, Richard S. Gilpin, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of December, 1909, requiring the plaintiff to accept service of a certain undertaking.- Order affirmed, with ten dollars costs and disbursements, on opinion of Lambert, J.-, delivered at Special Term.

<p>Deposition examination of witnesses upon oral questions — expenses of opposing party — notice.</p> <p>The granting of a commission to take testimony of designated witnesses in a foreign State upon oral questions should be conditioned upon the payment of the costs and expenses which will be incurred by the opposing party in attending the hearing to protect his lights.</p> <p>An allowance of §100 for counsel fees and expenses of the defendant in attending sucli hearing in three separate actions involving a large amount of money should be increased to §200 and the expenses of one attorney going to and from the place of hearing and while necessarily attending the same.</p> <p>Where the testimony of designated witnesses in a foreign State is to be taken without written interrogatories, the requirement of section 899 of the Code of Civil Procedure that the opposing party shall be given at least five days’ notice before the deposition is taken and in addition one judicial day for each fifty miles by the usual route of travel between the residence of the attorneys for the adverse party and the place where the deposition is to be taken is mandatory and a shorter notice is unauthorized.</p>

Appeal by the defendant, The City 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. 29tli day of June, 1909, upon the report of a referee duly appointed to hear, try and determine the issues.

Appeal by the plaintiff, The People-of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ontario on the 22d day of October, 1909, upon the dismissal of the complaint by direction of the court on the plaintiff’s opening on a trial at the Ontario Trial Term.

Appeal by the plaintiff, Martin Sheridan, 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 11th day of January, 1910, denying the plaintiffs motion to strike out of the defendant’s answer to the amended complaint herein certain allegations alleged to be irrelevant and scandalous.

Appeal by the plaintiff, Frederick H. Hazard, as trustee, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of'Oneida on the 26th day of July, 1909, upon the report of a referee, dismissing the complaint upon the merits.

<p>Foods—Agricultural Law—sale of adulterated milk — intent immaterial —evidence — proof of sale — taking samples — defenses — safe of skimmed milk as such.</p> <p>Persons selling or offering or exposing for sale milk which does not conform to the standard prescribed by the Agricultural Law are liable for the penalty irrespective of knowledge, intent or moral wrong.</p> <p>There is sufficient proof that a defendant sold, offered or exposed adulterated milk for sale where it appears that he told .inspectors of the Agricultural Department in answer to an inquiry that he served the milk in coffee and sold it by the glass,</p> <p>Evidence in an action to recover the penalty examined, and Tield, that samples of the adulterated milk were taken after proper stirring by the inspectors, and a. duplicate thereof was delivered to the defendant as required by the statute, and that a proper written statement of the reason for talcing the sample was given.</p> <p>The fact that a defendant sued for the penalty was selling skimmed milk as such, as is permitted by the statute in certain counties, is an affirmative defense tobe taken by him. The People are not bound to prove a negative as part of their ’ case.</p>

Appeal by the plaintiff, Frank, A. Hall, from a' judgment .of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 15th day of June, -1909, upon the decision of the court, rendered after a trial at the_ Orange Special Term, dismissing the complaint. During the pendency of the action George E. Conklin died, and Michael 1ST. Kane and A. Y. D. Wallace were appointed his executors: •

Appeal by the defendant, The City of Newburgh, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 26th day of March, 1908, upon the decision of the court rendered after a trial at the Orange Special Term.

<p>Limitation of actions — nature of plea pleading — when reply will be orderéd.</p> <p>The plea of the Statute of Limitations is a plea of avoidance.</p> <p>The court in its discretion may require the plaintiff to reply to the plea of a foreign Statute of Limitations, asserted by a foreign corporation, where the period fixed by the foreign statute and the former and present residence of the plaintiff may be material issues bearing upon the sufficiency of the plea, and there may be grounds upon which it may be claimed that the operation Of the statute was suspended or its effect avoided.</p>

<p>Process—jurisdiction of foreign defendant — waiver of defects — service of summons upon Superintendent of Insurance after revocation of his authority — acts constituting waiver.</p> <p>A failure to obtain jurisdiction of a foreign defendant by proper service of process may be waived, as where he appears generally in the action.</p> <p>Thus, although a designation of the State Superintendent of Insurance by a foreign corporation as a person upon whom service of process may be made was lawfully revoked after the defendant ceased doing business in this State, so that service of process on the Superintendent did not confer jurisdiction, the defect is waived, nevertheless, where the defendant moved to open a judgment taken against it by default and accepted an order to that effect, not granted as a matter of right, but as a favor, and complied with the condition of the order requiring it to interpose an answer.</p> <p>Under such circumstances the defendant will not be permitted to serve an amended answer setting forth the lack of jurisdiction by reason of the fact that service was made upon the Superintendent of Insurance after his authority had been revoked.</p>

Appeal by the defendants, Newbold T. Lawrence, individually and as executor, etc., and others, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Nassau on the 15th day of February, 1910, denying the said' defendants’ motion to dismiss the action on the ground that it was commenced without authority.

Appeal by the defendant, the Thomas McNally Company, 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 Westchester on the 29th day of July, 1909 ; also from part of an order entered in said clerk’s office on the 10th day of March, 1909, and also from an order entered in said clerk’s office on the 18th day of December, 1908.

<p>Appeal by the defendant, The New York Times Company, from a judgment of the Supreme Court in favor of the plaintiff, entered . in the office of the clerk of the county of Queens on the 15th day of January, 1909, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 20th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Harry Levin, from an order of the Municipal Court of the city' of New York, borough of Brooklyn, made' on the 29th day of October, 1909, setting aside a verdict in his favor as excessive.

<p>Appeal by the defendant, the Borough Bank of Brooklyn, from an order of the Supreme Court, made at the Kings County Special-Term and entered in the office of the clerk of the county of Kings on the 21st day of January, 1910, confirming the report of a referee in surplus money proceedings, with notice of an intention to bring up for review an order entered on the 18th day of August, 1909, and also an order entered on the 13tli day of December, 1909.</p>

Appeal by the defendants, Frank L. Polk and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of January, 1910, granting a peremptory writ of mandamus.

Appeal by the defendant, the Eltoma Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day *of June, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the defendant, the Standard Oil Company of New York, from an order of the Supreme Court, made at,the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of February, 1910.</p>

<p>Appeal by the defendant, Joseph Bass, from a judgment of the Supreme Court in .favor of the plaintiff,- entered in the office of the clerk of the county of Kings on the 21st day of December, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, George Robins and another, from an order of the Supreme Court, made at the 'Kings County Special' Term and entered in the office of the clerk of the county of Kings on the 14th day of September, 1909, overruling the said defendants’ objections to the report of a referee, and also from an order entered in said clerk’s office on the 6tli day of October, 1909, confirming the said report.

Appeal by the defendant, Meta E. Brennan, from a judgment of the County Court -of Richmond county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of December, 1909, denying the • defendant’s motion for a new trial made upon the minutes.

Appeal by the- defendant, the American Sugar Refining Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 30th day of October, 1909.

Appeal by the plaintiff, Meyer London, as trustee, etc., from a judgment of .the Supreme Court in favor of the defendant Hyman S. Shlevin, entered in the office of the .clerk of the county of Kings on the 28th day of January, 1910, upon the decision of the court, pursuant to section 547 of the Code.of Civil Procedure, rendered after a trial at the Kings County Special Term, dismissing the amended complaint as to the said defendant, and also (as stated in the notice of…

Appeal by Charles H. Cans, as Comptroller of the.State of New York, from an order of the Surrogate’s Court of the county of Kings, entered in the said Surrogate’s Court on the 6th day of July, 1909, affirming an order entered on the 7th day of Hovember, 1908, fixing the transfer tax upon the estáte of Susan A. B. Moses, deceased,

<p>Appeal by the defendant, Yale Knitting Mills, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 17th day of January, 1910.</p>

<p>Mortgage — foreclosure — evidence — lack ■ of consideration — assignment of mortgage — assignee takes subject to prior equities — evi- . dence — competency of widow of deceased mortgagor to show lack of consideration.</p> <p>In an action of foreclosure brought by. the assignee of a mortgage on lands, the defendants, heirs of the mortgagor, may show by parol that there was no con- , sideration as between mortgagor and mortgagee, although the instrument be under seal.</p> <p>The assignee of a mortgage takes it subject to the legal and equitable defenses available to the mortgagor-at the time of the assignment, as, for example, want" of consideration between the parties to the mortgage.</p> <p>A mortgagee who is also widow of the mortgagor is not disqualified by section 839 of the Code of Civil Procedure from testifying in a suit of foreclosure brought by her assignee that she gave no consideration for the mortgage.</p>

<p>Stay—failure to pay costs of prior action — equitable or legal nature of ■actions immaterial.</p> <p>An action at law brought by a broker to recover commissions will be stayed until he pays.the costs awarded against him on the dismissal of his complaint upon the merits in a prior suit in equity which he brought against the same defendant to establish an equitable lien upon the same lands described in the complaint in the legal action.</p> <p>The rules governing a stay for failure to pay costs of a motion apply equally to a failure to pay costs in a prior action between the same parties involving the same subject-matter, unless special facts be presented which indicate that an exception should be made.</p> <p>It is immaterial that the prior action was legal and the latter equitable, or nice versa,.</p>

Appeal by the defendant, Augustus E. Lawrene, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of December, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant’s demurrer to the complaint.

<p>Real property—deed —successive conveyances from same grantor — failure of first purchaser to record conveyance — rights of purchaser from second grantee.</p> <p>A building annexed to land forms part of the. realty and must be conveyed as . such..</p> <p>A conveyance' of a building and its contents by an instrument in writing purporting to be a bill of sale, but not recorded, is-void as against a subsequent grantee of the land upon Which the building stood, who purchased from the same grantor without notice of ,the prior conveyance, if the building had not been removed and the first purchaser was not in such actual, open and visible occupation as to be equivalent to notice.</p> <p>Such prior unrecorded conveyance is also void as against a purchaser from the second grantee, although he had notice of the first conveyance. This, because the validity of his title is measured by that of his grantor. ' ' . v</p> <p>Motion for a new trial on the, ground of surprise and newly'-discovered evidence , denied..</p>

Appeal by the defendant, the Sundstrom & Stratton Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 8th day of June, 1909, upon the report of a referee.

Appeal by the plain tiffs, John L. Travis 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 Westchester on the 4th' day of December, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered on the same day denying the plaintiffs’ motion for a new trial made upon the' minutes.

<p>Appeal by the relator, Paul A. Ajas, 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 dth day of January, 1910, quashing an alternative writ of mandamus.</p>

Appeal by William Harman Black, the plaintiff and. judgment creditor, 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 23d day of March, 1910, denying the appellant’s motion to punish the defendant, the judgment debtor, for contempt.

Appeal by the plaintiff, William S. Schwartz, from a judgment of the Supreme Court in favor of the defendant 0. Walter Randall, as trustee, etc., entered in the office of the clerk of the county of Kings on the 3d day of January, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits and vacating and setting aside a certain mechanic’s lien.

<p>Appeal by the defendants, Annie Fox and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of November, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

Appeal by the defendant, Mary E. Hoyt, 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 11th day of March, 1910, granting the plaintiff’s motion for a bill of particulars.

<p>Appeal by the plaintiff, Flora Mitniclc, as. administratrix, etc., from a judgment of. the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 9th day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of March, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Bellew:Merritt Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the cleric of said county on the 1st day of June,.1909, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 19th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Jonathan C. Pierce, as executor, etc., and others, claimants, 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 lltli day of March, 1910, denying the appellants’ motion for the removal of commissioners of appraisal herein.

<p>Real property — adverse possession — salt meadow — trial — burden of proof — exception of statute.</p> <p>Ditches around three sides of a salt, meadow, which is bounded on the fourth side by a ¿reek, constitute a “substantial inclosure” within the meaning of section 370 of the Code of Civil' Procedure so as to give title by adverse possession,</p> <p>Annual mowing of the salt grass on such lands is also sufficient compliance with the requirement of- said se¿tion that the lands shall be “ usually cultivated.”</p> <p>Where; in an action for breach of covenant of seizin, the plaintiff shows title in third' parties by inheritance, but the. defendant establishes that he bad-good title by, adverse possession and brings himself within sections 369- and 370: of the Code of Civil Procedure, the burden is on plaintiff- to show that the case falls under one of the exceptions in section 375,</p>

<p>Appeal-by- the defendant, Grenville , M. Ingalsbe, 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 Washington on the 31st day of December, 1909, upon the report of a referee in an action under section 2718'of the Code of Civil Procedure.</p>

Appeal by the plaintiffs, John H. Gregory and another, from an order of the County Court of Ulster county, entered in the office of the clerk of said county on the 11th day of February, 1910, granting the defendant’s motion for a. new trial because of the misconduct of the jury.

Appeal by the plaintiff, Robert Maloney, from a judgment of the County Court of Broome county in favor of the plaintiff, entered in the office of the clerk of said county on the 13th 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 plain tiff Is motion for a new trial made upon the minutes.

<p>Principal and agent —- authority to execute contract — implied warranty — corporation — by-law — construction.</p> <p>A by-law of a.corporation providing that no contract shall be made “by any officer ” of the company unless authorized by the board of directors refers only to such contracts as would be made by an officer, and does not limit the authority of a managing agent intrusted with the sale of its securities to make a contract verbally authorized by those controlling the corporation as an incident to the sale;</p> <p>Evidence in an action against an agent for breach of his implied warranty of authority to execute a contract on behalf of his principal agreeing .to repurchase certain stock ón demand examined, and held, to fail to show that the agent acted without authority. .</p>

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

<p>Certiorari issued out of the Supreme Court and attested on the 7th day of December, 1909, directed to James W. Dickson and .others, Republican members of the board of supervisors of Delaware county, New York, during the year 1909, commanding them to .certify-and return to the office of the clerk of- the county of Delaware all and singular their proceedings had in relation to the designation, pursuant to section 20 of the County Láw (Consol. Laws, chap. 11; Laws of 1909, chap. 16), of a Republican newspaper in said county to publish the Session Laws and Concurrent Resolutions of the Legislature for the year 1910.</p>

<p>Witness — evidence — section 839 of the Code of Civil Procedure — disqualification.</p> <p>In an action to recover a ring claimed to have been loaned to defendant’s intestate the testimony of one who sold the ring to plaintiff that he was present at the time of the loan and that the decedent took part in the transaction is not inadmissible under section 829 of the Code of’ Civil Procedure, for he has no interest in the issue involved, nor ever had.</p> <p>A witness cannot be held disqualified under, that section as one.from whom a party derived his interest in the litigation unless the witness has some privity with the decedent. A witness from whom a party derived title is only disqualified under said section when siich witness, while owner of the title, was interested in the question at issue in such manner as would then have disqualified him..</p>

Certiorari issued out- of the Supreme Court and attested on the 11th day of December, 1909, directed' to Clark Williams, as Comptroller' of the State-of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in denying the application of the relator for a revision of the amount of its franchise taxunder section 185 of the Tax Law for the years ending June 30, 1907, 1908 and 1909.

Appeal by the defendant, Leroy S. Mackey, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Delaware on the 17tli day of -May, 1909, upon the verdict of a jury for $875, and also from an order entered in said clerk’s office on the 4tli day of August, 1909, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Germano P. Baccelli, as administrator, etc., from a judgment of the Supreme Court in favor of. the defendant, entered in the office of the clerk of the county of Saratoga on the 3d day of December, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiffs case on a trial, at the Saratoga Trial Term in an action brought under the Employers’ Liability Act. (See,Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14; Railroad Law [Gen. Laws, chap. 39 ; Laws of 1890-, chap, 565], § 42a, added by Laws of 1906, chap. 657.) ■</p>

<p>Damages — negligence — future consequences of accident — evidence — reasonable certainty.</p> <p>To entitle one to recover damages for apprehended future consequences, it must be reasonably certain that they will result from the injuries suffered.</p> <p>In an action for personal injuries it is error to permit the plaintiff’s physician to testify over proper objection as to whether certain future consequences are “ likely to occur!” The error is not cured by subsequent testimony that the accident would “predispose” the plaintiff to the consequences described.</p>

Appeal by the plaintiff, Margaret McMahon, as sole administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 14th day of November, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Tioga Trial Term.

<p>Crime — pleading — indictment of persons jointly — robbery — accomplice.</p> <p>An indictment charging two persons jointly with robbery, first degree, which alleges that the defendants at a certain place, “ each of said persons being aided by an accomplice actually present,” did unlawfully and criminally take certain property, is not demurrable on the theory that the accomplices should have been named. The fair meaning of the allegation is that the two defendants were actually present aiding each other as accomplices.</p>

<p>Railroad—foreign corporation — residence within State—venue of action.</p> <p>A foreign corporation, operating a railroad in this State is deemed to,have a “residence” within the meaning of section 984 of the Code of Civil'Procedure in any county, through which it operates its' road. The venue of an action against it may be laid in such county.</p>

<p>Vendor and purchaser — equity—farm — false statement as to acreage — sale in bulk—no waiver of fraud—material variance.</p> <p>A suit for specific performance may be maintained by the vendor of land to compel payment of the purchase price.</p> <p>A vendor who, with knowledge of the fact that his farm contains not to exceed forty acres, knowingly signs a contract of sale stating that it contains forty-eight acres, more or less, and, intending that the purchaser shall rely thereon, fails to disclose the misstatement is guilty of fraud.</p> <p>That the sale was in gross and not by the acre does not deprive the purchaser of his fight to relief.</p> <p>Where.it appears that the purchaser desired to purchase a farm of from fifty to one hundred acres, and that it was only with difficulty tliat he was persuaded to agree to buy the plaintiff’s farm, the plaintiff cannot maintain that the dis- ' crepancy in the quantity of land, was unimportant.</p> <p>Although the purchaser retains possession after knowledge of the fraud, he does not thereby waive his right to damages.</p>

Appeal by the defendant, The Atlantic, Gulf and Pacific Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office 'of the clerk of the county of Washington on the Ytli day of May, 1909, upon the verdict of a jury for $11,000, and also from an order entered in said clerk’s office on the 2d day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Banking—debtor and creditor — evidence — account in name of firm not conclusive on question of ownership.</p> <p>Action against a bank to recover damages-for a refusal to pay certain--checks drawn by plaintiff when at the time of presentation the bank held a deposit standing in plaintiff’s name sufficient to pay them. Evidence examined, and held, to show that plaintiff was not in fact the .owner of the money and had no right to draw thereon.</p> <p>"That the money was in plaintiff’s name is not conclusive on the question of his ownership, hut the real transaction and the circumstances surrounding the deposit may be examined.</p>

<p>Appeal by the plaintiff, Martin J. Doyle, from a judgment of the County Court of Rensselaer county in favor of the defendant, entered.in the . office of the clerk of said county on the 28th day of April,, 1909, upon the dismissal of the complaint by direction of the court at the opening of the trial. - . '</p>

Appeal by the plaintiffs, Jaeob I. Christman and others, as executors, etc., from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 30th day of December, 1909, directing the plaintiffs to allow the defendant an inspection of certain papers in their possession.

<p>Practice—dismissal at opening—master and servant—negligence — pleading—complaint—fall of clay bank—Employers’ Liability Act — “works'.”</p> <p>Ona motion to dismiss a complaint at the opening on the ground that it does not state a cause of action, the same question is presented as on a demurrer on like grounds. . ’ - • •</p> <p>Á’ complaint which alleges' that defendant while, its clay bank .was in a dangerous . condition Owing to an overhanging face of clay and earth having several fls- . súrésrunning- through it, directed plaintiff’s intestate to work at the foot of the bank; that the deceased, who had no knowledge of the danger, relying on defendant’s assuran.ce that it was safé, went to work and was killed by the fall " of the Overhanging face, and that death was caused by defendant’s negligence in failing to provide a safe place to work should not he dismissed on the opening.</p> <p>A clay bank is “works” within the meaning of the Employers’ Liability Act extending a master’s liability to defects in the condition of the ways, works and machinery used in his business.</p>

Appeal by the defendant, the International Eailway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th day of Hay, 1909, upon the verdict of a jury for $650, and also-from an order entered in said clerk’s office on the same day denying tlie defendant’s motion for a new trial made upon- the minutes.

Appeal by the petitioners, John A. Bensel and others, constituting the board of water supply of the city of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 29th day of March, 1910, and also from an order entered in said clerk’s office on the 3d day of May, 1910, resettling the first order; also an appeal by David C. Eobinson and James J. Frawley, commissioners, from a portion…

Appeal by Jacob Mayer, claimant, from so much of an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 29th day of September, 1908, as confirms the report of commissioners of appraisal herein as to parcel Ho. 54 in section Ho. 2.

Appeal by the defendants, Jacob Schapiro and another, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Saratoga on the 1st day of March, 1910, denying the defendants’ motion for a change of venue from the county of Saratoga to the county of New York, on condition that plaintiff give a bond for the payment to the defendants or to their attorney, if the defendants succeed in the action, of all…

Appeal by the plaintiff, Celia Penor, 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 4th 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 Warren Trial Term.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 11th day of January, 1910, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case oh a trial at the Rensselaer Trial Term.

<p>Judgment — Justice’s Court — foreign judgment — transcript — evidence must be within pleadings.-</p> <p>In order that a transcript of a judgment rendered by a Justice’s Court in another State may be competent evidence here, it must be subscribed or authenticated as prescribed in the Code of Civil Procedure or the Federal statutes.</p> <p>Under the- Federal statute (U. S. E. S. § 905) prescribing by whom judicial records in State courts shall be authenticated, the presiding judge or magistrate alone can certify the record.</p> <p>A transcript attested by the ordinary certificate of a clerk and the certificate of a judge of the Court of Common Pleas of New Jersey, which states that the. clerk is the clerk of the Circuit Court and Court of Common Pleas, is not competent evidence of a judgment of a Justice’s Court of that State.</p> <p>The defects are not cured by a certificate of the judge that the attestation “is in due form."</p> <p>Even though the transcript be properly authenticated it is also necessary to establish the jurisdiction of the justice, both of the person of the defendant and .of the subject-matter of the action.</p> <p>Where the complaint alleges a justice’s judgment, the action cannot be sustained by proof of a judgment of the Court of Common Pleas.</p>

Appeal by the defendant, Leslie Howard, from a judgment of the Supreme Gourt in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 12th day of April, 1909, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 10th day of April, 1909,. denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Henry W. Bean and others, as committee of reorganization, etc.,, from an order of the Supreme Court, made at the Broome. Held: by said trust company as trustee for the bondholders of the railway company. This action of foreclosure was commenced in 1905.

Appeal by. the defendant, Harry A. Briggs, from a judgment of the County Court of Ulster county in favor of the plaintiff, entered in the office of the clerk of said .county on the 25th day of May, 1909, upon the decision of the court rendered after a trial before the court without á jury.

Appeal by the plaintiff, the Town of Bleecker, from‘a. judgment of the County Court of Fulton county in favor of the defendant, entered in the office of the clerk of said county on the 18th day of September, .1909, upon the report of a referee -dismissing the complaint upon the merits.

Appeal by the defendants, James R. McLaughlin and others, 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 Ontario on the 21st day of September, 1909, denying the said defendants’ motion to compel the plaintiff’s attorney to accept service of the respective answers of the several defendants. This case was transferred from the Fourth Department to the Third Department. (See 136 App. Div. 910.)

Gross-appeals by the plaintiffs, John D: Chism, Jr., and another, and the defendant, Sheldon D. Smith, from parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Warren on the 13th day of March, 1908, upon the decision of the court rendered after a trial at the Warren Special Term.

<p>Appeal by the defendant, The Standard Eefrigerator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 26th day of March, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 20th day of March, 1909, denying the defendant’s motion for a' new trial made upon the minutes.</p>

<p>Appeal by the defendant, the New York Herald Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st' day of December, 1909, upon the verdict of a jury for $15,000, and also from an order entered in said' clerk’s office on the 3d day of January, 1910, denying the defendant’s motion for ■ a nonsuit and his motion to withdraw a juror, and also his motion for a new trial made upon the minutes.</p>

<p>Municipal corporations — city, of New York — revocation of engineer’s license — act of police commissioner not reviewable by certiorari — academic question.</p> <p>Certiorari does not lie to review a determination of the police commissioner of the city of -New York revoking the license of - engineers employed in that department after a trial of charges against them .pursuant to section 343 of the charter, as it was an administrative, not judicial, act.</p> <p>Moreover, where the statute makes such revocation effective for six months only and that time has expired, so that the relator can apply for a new license, the validity of the former revocation is a purely academic question.</p>

<p>Negligence — use of city street by licensed peddler — contributory negligence. ,</p> <p>Both the common law and the statutes recognize a use of public highways and . 1 city streets by' itinerant peddlers' and that they may be licensed to use such 'highways.</p> <p>Hence, "a duly licensed -peddler who-was injured by a vehicle driven on ,a .city-street cannot be ..charged with contributory negligence as a matter of .tow merely because he plied his trade upon the street.</p> <p>Such peddler like any other person using the street may he guilty of contributory negligence as a matter of law, but it is because of what he does or does not do, not because1 of what he is.</p>

<p>Appeal by the defendant Hunt Tilford Dickinson, by his guardian ad litem, Andrew Gr. Dickinson, from part of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, and appeal by the defendant Henry If. Tilford, as executor, etc., from the whole of said judgment, which was entered in the office of the clerk of the county of New York on the 29th day of December, 1909, upon the decision. of the court, rendered after a trial at the New York Speeial Term, adjudging the 13th and 14th paragraphs of the will of Catharine Hunt Tilford invalid and void.</p>

<p>Appeal by Nellie K. Reed, as executrix and trustee, etc., and another, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 17th day of March, 1910, directing the appellants to account.</p>

<p>Appeal by the plaintiff, Harriet Evelyn Martin, 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 6th day o.f October, 1908, denying the plaintiff’s motion to amend ' an interlocutory decree and final judgment in. an action for divorce.</p>

Appeal by the defendant, Daniel G. Eeid, from, an order of the Supreme Court, made at a New York Trial Term and entered in the office of the clerk of the county of New York on the 17 th day of December, 1909, denying the said defendant’s motion to correct the records and minutes of the clerk of the Trial Term of the Supreme Court to conform to the actual findings and conclusions of the jury.

<p>Appeal by the petitioner, Uriah Herrmann, 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 29th day of May, 1909, denying the petitioner’s motion for a peremptory writ of mandamus.</p>

<p>Appeal by the plaintiff, Joseph Seligman, 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 18th day of April, 19-10, denying the plaintiff’s motion to revive an action, and for leave to serve an amended and supplemental complaint.</p>

Appeal by the plaintiff, Isa Willard Hein, 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 April, 1910, precluding the plaintiff from giving certain evidence upon the trial herein.

Appeal by the petitioner, Charles A. Bunk, as substituted trustee, 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. 8th day of April, 1910, denying the petitioner’s motion for a writ of mandamus.

Appeal by the plaintiff, Edward White, 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 17th day of April, 1909, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint upon the merits.

Appeal by the defendant, Leopold Sondheim, 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 New York on the 6th day of March, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of March, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Gennaro Ghiggeri, from a judgment of conviction rendered against him in the Court of Special Sessions of the First Division of the city of New York on the 10th day of November, 1909, on an information charging him with'petit larceny in having procured a check to be cashed on false pretenses.</p>

Appeal by the plaintiff, Mary Huston, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th 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 8th day of April, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ethel I. Anderson, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 12th day of December, 1909, denying the plaintiff’s motion to restore the -.cáse to the day calendar-for trial.

Appeal ' by the defendant, Louise Davis, individually and as executrix, 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 30th day of December, 1909, upon the decision of the court rendered at the New York Special Term upon a motion for judgment on the pleadings.

<p>Appeal by The City of New York 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 New York on the 15th day of July, 1908, as resettled by an order entered on the 7th day of October, 1908, directing commissioners of estimate and assessment to-ascertain and determine the compensation, if any, which should be made to the petitioner herein in consequence of the closing of Elliott avenue.</p>

Appeal by the defendant, Henry S. Glazier, 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 12th day of Hovember, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Brearley School, Limited, from an order of the Appellate Term of the Supreme Court, entered* in the office of the clerk of the county of New York on the 10th day of March, 1910, affirming an order of the City Court of the city of New York, entered on the 5th day of January, 1910, which denied the plaintiff’s motion to issue an execution under section 1391 of the Code of Civil Procedure,

Appeal by the defendant, The City of New York, from a. judgment of the Supreme Court in faVor of the plaintiff, éntered in the office of the clerk of the county of New York on the 26th day of June, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1909, denying the defendant’s motion for a new trial made upon the mintites.

<p>Appeal by the defendant, William Crowley, from an order of tlie 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 March,-1910,. granting the plaintiffs motion for a bill of particulars.</p>

<p>Appeal by the defendant, William Crowley, 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 18th day of March, 1910, vacating an order for the examination of the plaintiff before trial.</p>

Appeal by the defendant, Albert H. Flint, from a judgment of the Supreme Court in-favor bf the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of June, 1909, upon the report of a referee.

Appeal by the defendant, Clifford E. Parker, from part of a judgment of theSupreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of March, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal-, by the defendant, W. Arthur Gr. Walker, from a judgment of the Supreme Court iñ favor of the plaintiff, entered in the office of the clerk of the dounty of New York on the 7th day of January, 1910, upon the decision of the court rendered, after a trial-at the New York Special Term; . •* -.

Appeal by the plaintiff, Elsie Knaisch, from a judgment of the Supreme Court in favor of. the defendants; entered in the office of the clerk of the county of New York on the 14th day of December, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.

Appeal by Mary 0. Leary, as administratrix, etc., from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 1st day of April, 1910, denying the appellant’s motion for an order returning a referee’s report to him for correction and amendment.

Appeal by the defendants, Edward F. Hutton and others, as copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of May, 1909, upon the verdict of a jury for $791, and also from an order entered in said clerk’s office on the 28th day of May, 1909, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Atlantic Terra Cotta Company,. from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of March, 191Q, upon the decision of the court, rendered after a trial at the New' York Special Term, overruling the defendant’s demurrer to- the complaint.

Appeal by- the defendant, Murray’s, from a judgment of the Supireine Court in favor, of the plaintiff, entered in the office of the clerk of .the county of New York on the 23d day of December, 1909, upon the verdict of a-jury, and also from an order entered in said clerk’s office on the ,20th day of December, 1909, denying the defendant’s motion for a new trial mad'e upon the minutes.

Appeal by the defendant, Charles H. Uolte, from part of an order of the Supreme Court, made at the New York Special Term and entered in.the office of the clerk of the county of New York on the 26th day of April, 1910.

<p>Appeal — order entered by default —persons not aggrieved — insurance.</p> <p>An order entered by default is not appealable.</p> <p>Where, upon the return of an order to show cause, an attorney appeared generic ally and after interposing some preliminary objections, which were overruled, Buffered the order tobe entered by his default, his client cannot appeal.</p> <p>It seems,, that persons who are not underwriters themselves, but claim to own a sort of charter or.franchise to do business as individual underwriters under the name of the New York and New England Underwriters at Lloyds of New York city, which they used as merchandise, granting rights to do business thereunder to others, are not aggrieved by an order authorizing the Superintendent of Insurance to take possession of the New York and New England Underwriters at Lloyds of New York city,' and restraining said underwriters - from continuing to transact business except through the Superintendent.</p>

‘ Appeal by The New York and Hew England Underwriters at Lloyds Of. New York City 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 August, 1909, restraining the appellant from, changing its name.

<p>Tax—transfer tax — trust — power of appointment —mortgages on land in this State —money deposited here,</p> <p>Where the beneficiary of a trust estate has exercised a power of appointment conferred by will the taxability of the transfer under subdivision .5 of section 220 of the Tax Law must be determined as though the estate had been bequeathed by the beneficiary to the appointees and as if they took title under her will, not under that of the testator.</p> <p>Where the appointor at the time of her death resided in another State where her will was probated and it appears that the bonds and mortgages which made up the trust fund were at that time in the foreign State, the transfer is not taxable, although the land covered by the mortgages is located here.-</p> <p>But the transfer of money forming part of the trust fund and deposited by a trustee in this State is subject to taxation, although the certificate of deposit was. in the individual name of the trustee wjho, however, did not claim to hold it adversely.</p>

<p>Appeal from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 27th day of July, 1909.</p>

<p> Pleading—fraud—misrepresentations inducing purchase of stock. </p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 9th day of December, 19t9.</p>

<p>Contract — building contract — value of services.</p>

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

<p>Appeal from an order entered in the New York county clerk’s office March 32, 1910, allowing interest on awards for damage Nos. 14 and 19.</p>

<p>Appeal from an order entered in the New York county clerk’s office March 21, 1910, denying a motion for an injunction pendente lite.</p>

<p>Certiorari issued out of the Supreme Court on July 16, 1909, to review the determination of the respondents in canceling relator’s license as an auctioneer.</p>

<p>Appeal from an order entered in the New York county clerk’s office April 19, 1910, appointing a referee.</p>

<p>Appeal from an order entered in the New York county clerk’s office April 7, 1910, denying the defendant’s motion to strike the case from the Trial Term calendar.</p>

<p>Appeal from an order, made at Special Term and entered in the New York county clerk’s office'February 23, 1910, compelling the plaintiffs to furnish a verified bill of particulars.</p>

<p>Motion for an order directing the chamberlain of the city of New York to pay over money.</p>

<p>Appeal from a judgment of the Court of General Sessions of the Peace, rendered on the 17th day of February, 1909, Convicting the defendant of the crime of seduction.</p>

<p>Appeal from an order entered in the New Yoke county clerk’s office April 37, 1910, directing the plaintiff to reply to new matter set up in the amended answer of the defendant Henry A. Rubino.</p>

<p>Appeal from an interlocutory judgment, entered in the. New York county clerk’s office January 18, 1910, oyerruling a demurrer to a defense and counterclaim;</p>

<p>"' Appeal from an order entered in the New York county clerk’s office March 31, 19Í0, vacating an attachment.</p>

<p>Appeal from an order entered in the New York county clerk’s office December 29, 1909, granting a motion for an injunction during ttidpendency of the action.</p>

<p>Appeal from so much of an order of the Special Term, entered in the New York county clerk’s office March S, 1909, affirming the report of commissioners of estimate and assessment as confirms certain assessments for benefit.</p>

<p>Appeal from an order entered in the New York county clerk’s office March 11,1910, denying a motion to vacate an order for the examination of the defendant before trial.</p>

<p>Motions by the plaintiff for reagument and for leave to appeal to the Court of.. Appeals.</p>

<p>Appeal from a judgment of the County Court of Erie county entered in the office of the clerk of said county June 14, 1909.</p> <p>Judgment modified by striking out interest allowed and as so modified affirmed, with costs.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Kings county clerk’s office January 81, 1910.</p>

<p>Appeal by the defendants from an order of the Special Term, entered in the office of the clerk of Westchester county on the 12th day of January, 1910.</p>

<p>Appeal — record.</p>

Appeal by the plaintiff from a judgment entered in Columbia county clerk’s office June 28, 1909, dismissing the plaintiff's complaint at the close of the case, upon a trial before the court and a jury.

Judgment affirmed, with costs, on opinion of Van Kirk, J., at Trial Term. All concurred, except Smith, P. J., who voted for modification of the judgment so as to strike therefrom the provision that it is upon the merits.