Volume 139 — New York Appellate Division Reports

Appeal by Margaret E. Callen-from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 28th day of January, 1910, settling the accounts of respondent herein ¿ ■

Appeal by the plaintiff, Hyman Samelson, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 29th day of December, 1909, reversing a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said court on the 29'tli day of June, 1909. .

Appeal .by the plaintiff, Arnold Tanzer, from a judgment of the' Supreme Court in' favor of the defendant George W:,Morgan, entered in the office of the clerk of the county of Hew York on the 4th day of February, 1909, upon the dismissal of-the complaint-by-direction of the court''.as to said- defendant, at the close óf the plaintiff’s case on a trial at the Hew York Trial Term.

Appeal by the plaintiffs, Isaac H. Vaughan and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1910.

Appeal by the plaintiff, Edith Y. Gardiner,- from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 21st day of February, 1910, upon the decision-of the court Rendered after a trial at the Hew York Special Term overruling the plaintiff’s demurrer to a partial defense.

<p>'• Appeal by the plaintiff, Leopold Zimmermann, as sole surviving executor, etc., from so much of an order of the Supreme Court, made at the. New York Special Term and entered in the office óf ■ the clerk of the county of New York on the'15th.day of April, 1910, as directs that the'interest be computed upon the mortgage herein at the rate of four per centum per annum from January 2, , 1909, an'd n'o.t at the legal or statutory rate. . -</p> <p>Order affirmed, with ten dollars.costs and disbursements, on opinion of the court below. '</p>

<p>Will —. gift to infants — absolute bequest —* when no right of survivorship.</p> <p>Where a will gave two infant daughters of the testatrix all.her property, share and share alike, and provided that “ should either of them die without leaving issue then the share of such deceased shall go to the survivor,” the bequest is absolute, without condition or limitation and title to one half the property vests ' in each child immediately on the death of the testatrix and the admission of her will to probate.</p> <p>Upon the death of one of the two daughters intestate and unmarried after the'probate of the will her share of the testatrix’s estate should be distributed to her heirs at.law and next of kin, although the estate had never been divided but had been held intact by the testamentary guardians of the daughters. Scott and Clarke, JJ., dissented, with opinion. .</p>

<p>Attorney — disbarment.</p> <p>An attorney disbarred for appropriating money furnished by a client for the purpose-of paying a title insurance company for a policy of insurance.</p>

<p>New York city—debt limits-constitutional law.</p> <p>Under the amendment to the State Constitution, which excluded certain obligations from consideration in ascertaining the debt limit of New York city, and provided that “ any indebtedness heretofore incurred * * * for any rapid transit or dock investment may be so excluded proportionately to the extent to which the current net revenue received by said city therefrom shall meet the interest and amortization installments thereof,” only such bonds or obligations are to be excluded as can be paid, both principal and interest, with "the current net revenue received by the city from the improvements for which they were issued. .</p> <p>The constitutional amendment took effect January 1, 1910. It provided that the Legislature should prescribe a method for determining the amount of the debt to be excluded thereunder. The Legislature conferred power on the Appellate Division of the First Department to determine the matter on petition.by the ■ city. A petition was thereupon duly presented by the city to exclude the " amount of certain indebtedness incurred for the Manhattan and the Bronx Rapid Transit Railroad. By the petition it appeared that the railroad is operated by the Interborough Rapid Transit Cómpany; that the full net revenue now received by the city under the contract is §2,001,472.91; that the interest .and amortization requirements on the bonds amount to §2,118,459.52. Held, that such proportion of the bonds issued for this improvement should be excluded in ascertaining the debt limit as can be provided for, both principal and interest, by a yearly net revenue of §2,001,472.91 in such a way that no obligation will eventually fall on. the city of New York for: the bonds.</p>

Appeal by the defendant, Waclark Realty Company, from a. judgment of the' Supreme Court in favor of the plaintiff, entered in the; office of the clerk of the county of Hew York on the 11th day of January, 1910, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 10th day of January, 1910, denying the defendant’s motion for.a new trial made upon the. minutes,'

Appeal by the defendant, Robert F. McDonald, 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 May, 1908.

Appeal by the defendant, Albert F. Schwannecke, 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 May, 1908, granting the plaintiff’s motion to strike out as scandalous and redundant portions of the amended answer, and directing that the fifth and partial defense be made more definite and certain.

Appeals by Edward Harding, as assignee, etc.,'and by Adelaide T. Beacli 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 llth day of September, 1909, confirming the report of a referee appointed to inquire into and report' the facts respecting the claim of Richard A. Canfield to certain promissory notes.

Appeal by the defendant, The Northwestern Mutual Life Insur-. anee Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of November, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Apreal by the petitioner, Margaret M. Gleason, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of March, 1910.</p>

<p>Attorney — disbarment.</p> <p>An attorney disbarred for embezzling money received from a client for the purpose of opening a default.</p>

Appeal by the plaintiff, Harry Berler, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the lltli day of January, 1910, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, the verdict of a jury in favor of the plaintiff for $1,200 having been set aside, and also from an order entered in said clerk’s office on the 3d day of January, 1910, which…

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

Appeal by the defendants in each of the above-entitled proceedings from respective orders 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 December, 1909, in the first proceeding canceling and annulling an assessment for taxation for the year 1903, and in the second proceeding canceling and annulling an assessment for the year 1905.

Appeal by the defendant, John F. Ahearn, as president of the borough of Manhattan, 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.

Motion by the plaintiff, Otto T. Schuller, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division, in the first instance, after a trial at the New York Trial Term in November, 1909.

<p>Bills and notes—draft — conditional acceptance — answer — sufficient allegations.</p> <p>A promise by one party to a contract not under seal to refrain from doing some act before the other party is to be obligated to perform is a consideration for the contract and may be shown by parol.</p> <p>In an action to recover on defendant’s acceptance of a draft assigned to plaintiff by the payee after maturity, it is error to exclude evidence offered on behalf of the defendant to show that prior to the acceptance of the draft the payee promised the drawer that, if it would procure the acceptance, the payee would refrain from foreclosing a certain overdue mortgage which it held on the property of the drawer until a reasonable time after the maturity of the draft; that said promise was communicated to the defendant at the instance and with the knowledge of the payee; that defendant, relying thereon, accepted the the draft, and that the payee subsequently failed to keep its promise and prior to the maturity of the draft instituted proceedings to foreclose the mortgage.</p> <p>Allegations of a defense examined, and held, sufficient to admit evidence to show that the payee authorized the drawer on its behalf to induce defendant to accept the'draft on the condition and with the understanding that the payee would not foreclose the mortgage until after the maturity of the draft.</p> <p>On proof of this fact and that defendant accepted the draft in reliance on the promise of the payee, a valid contract between it and the payee was established.</p> <p>If failure to fulfill the promise was shown, the defense of failure of consideration was established, and, it seems, that the payee would also be estopped from enforcing the acceptance.</p> <p>, Ingraham, P. J., dissented, with opinion.</p>

<p>Separate appeals by the defendants, Frederick F. Searing and others, copartners, etc., and the defendant, Empire Trust 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 FTew York on the 25th day of March, 191Ó, granting the plaintiff’s motion for a discontinuance of the action on payment of a separate bill of costs to the defendant Empire Trust Company and the defendants Searing, George and Phillips.</p>

Appeal by the defendant, Frances May Williams Hall, from an interlocutory judgment of the Supreme Court in favor of' the plaintiff, entered in the office of the cleric of the county of Hew York on the 4th day of May, 1910, upon the decision of, the court, rendered after a trial at the HeW York Special Term, annulling a marriage and directing the entry of final judgment at the expiration of three months.

Appeal by the defendant, Pfotenhauer-Nesbit 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 2d day of May, 1910, staying proceedings in another action pending in the Supreme Court between the same parties wherein the defendant is plaintiff, until after the trial of the issues and final, judgment herein.

Appeal by the defendants, Charles A. Squires and another, from an order of the Supreme Court, made at the New York Special Térm and entered in the office of tlie clerk of the county of New York on the 16th day of May, 1910, denying the defendants’ motion to change the. place of trial.

Appeal by the defendants, Howland Haggerty Pell and another, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clérk of the county of Mew York on the 28th day of April, 1910, denying the said defendants’ motion to vacate an order for their examination herein to enable plaintiff.to frame his complaint.

Appeal by the plaintiff, Clifford H. Searle, 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 12th day of May, 1910, granting the defendant’s motion for the direction-of the court on several questions certified by a referee herein,-and denying the plaintiff’s motion to compel an officer of the defendant to answer certain questions and to compel the defendant to perform certain acts…

Appeal by the plaintiff, Lillian E- Shimer, from a final order of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor' of the defendant, dismissing the petition in summary proceedings.

Appeal - by the-plaintiff, Generoso Valentino, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the'24th day of February, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term.

Appeal by the plaintiff, John T. Burns, from a .judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 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 Queens County Trial Term, and also from an order entered in said clerk’s office on the 3d day of March, 1909, directing the dismissal of the complaint.

Certiorari issued out of the Supreme Court and attested on the 14th day of July, 1909, directed to William F. Baker, as police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular the proceedings had before his predecessor, Theodore A. Bingham, regarding the dismissal of the relator from the police force of the city of New York.

■ ' Appeal by the plaintiff, Marie J. Carney, from a judgment of the- Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 24th day of March, 4910, after a trial at the Richmond Trial Term.

Appeal by Lillian Y. Bourke from part of an order of the Supreme Court,. made at the Kings County Special Term and entered'in the office of the clerk of the county of Kings on the 19th day of July, 1909, modifying the report of a referee upon the determination of the title to certain awards for, parts of' damage parcel No. 61 • to “ unknown owners ” in proceedings for the opening of Montgomery street in the former city of Brooklyn.

<p>Master and servant — Employers’ Liability Act, section 3 — assumption of risk — question of fact — charge — contributory, negligence — evidence.</p> <p>Where in an action under the Employers’ Liability Act the master has- shown that the servant .understood the risks of the employment, it does not ■ follow, as a matter of law, that he assumed them, for under section 3 of the act that is a ■ question of fact for the jury.</p> <p>Where plaintiff’s intestate, who was foreman of a small-gang of “riggers” employed by defendant in. installing certain electrical machinery, ■ told the superintendent in charge that he thought the work should not go on until guy ropes had been attached to the derrick, and the superintendent answered that it was all right, ordered the work to proceed and told the decedent that he would look after that end of it, and decedent though dissatisfied went on with the work and was killed by the slipping of some machinery while it was being raised, caused by the lack of guy ropes, it is not error for the court to refuse to charge that if the decedent understood the risk of standing where he did and giving orders to hoist thé machinery, then he assumed' the risk.</p> <p>Where it further appears that the decedent had served under the superintendent as a common seaman while the latter was an officer, and that he had had less experience and education than the superintendent, a verdict that the decedent was not guilty of contributory negligence and did not assume the risk is not against the weight of evidence.</p>

Appeal by the defendant, the Town of North Salem, from a judgment of the County Court of Westchester county in favor of the plaintiff against the said defendant, entered in the office of the clerk of said county on the 9th day of November, 19Q9, upon the verdict of a jury, for $500, and also from an.order entered in said clerk’s office on the 13th day of November, 1909, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 18th day of February, 1910.

Appeal by the plaintiff, John F. Stinson, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in the office of the clerk of said court on the 23d day of December, 1909, dismissing the complaint upon the merits after a trial before the court.

Appeal- by, the defendant, William M. Barrett, as president of the Adams Express Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 13tli day of December., 1909.

<p>Appeal by the plaintiff, Max Brandt, from .a judgment of the Municipal Court of the city of New York, borough -of Brooklyn, in favor of the defendant, rendered on the 16th day of March, 1910,. dismissing the complaint, at the-close.of the plaintiff’s case.</p>

<p>Process — service by publication—partition — real property—failure to name defendants in notice — marketable title.</p> <p>Where the summons in a partition action is served by publication, failure to name the defendants in the notice required by section 443 of the Code of Civil Procedure does not deprive the court of jurisdiction, or defeat a title to the prem ises derived through the partition sale, especially if it appear that all the defendants acknowledged receipt of copies of the summons.</p>

Appeal by the plaintiff, John E. Overton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk, of the county of Suffolk on the 31st day of January, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Suffolk Trial Term.

Appeal by the defendant, The Maryland Casualty Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county, of Kings on'the 14th day of January, 1910, upon the decision of the court, rendered after a trial at the Kings County- Trial Term, overrilling a demurrer to the amended complaint.

■Appeal by the plaintiff, Edmund O. Sorapure, from a judgment' of the Municipal Court of the city of ¡New York, borough of Brooklyn, in favor of the defendant, rendered on the 25th day of January, 1910, dismissing the. complaint at the close of the plaintiff’s case.

Appeal by the defendants, William Krimko and another, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 6th day of-January, 1910, and from an order denying the defendants’ motion for a new trial.

Appeal by the defendant, Van Mater Stilwell, 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 17th day of September, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to a separate defense set up in the answer of the said defendant.

Appeal by the defendants, Lewis J. Jacobs and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 14th day of February, 1910.

<p>Appeal by the defendants, Mary E. Leavitt and others, from an .order of the Supreme Court, made af the Westchester Special Term and entered in the office of the clerk of tlie county of Westchester on the 4tli day of April, 1910.</p>

Appeal by the plaintiff, George Frost, 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 15th day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at’ the Westchester Trial Term.

Appear.by the plaintiff, Michael W: Flynn, from a judgment of the Supreme Court in favor of the defendant railway company, entered in: the office of the clerk -of the county of Westchester on the 26th day of January, 1910, overruling a. demurrer to certain defenses set up in the answer of the said defendant.

Appeal by the defendant, John R. Stout, from a judgment of the Mimcipal Court of the city of New York, borough of Brooklyn, in favor of the-plaintiff, rendered on the 11th day of December, 190.9.

Appeal by the plaintiff, the P. H. Gill & Sons Forge and Machine Works, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant,, rendered on the 5.th day of February, 1910.

Appeal by the defendants, Flavius Packer and another; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the coiinty of Rockland on the 24th day of October, 1907; upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 6th day of November, 1907, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal' by the defendants, Jacob Deshel and others, from a judgment of the Municipal Court of the city of Kew Torlc, borough of Brooklyn, in favor of the plaintiff, rendered on the l'7th day' of November, 1909.</p>

<p>Contract — agreement to wreck buildings — time — personal contract — damages — anticipated profits.</p> <p>Where a contract for the wrecking of certain buildings provides that one of the buildings is to be removed “at once,” the words should be construed to mean that it is to be removed within such time as is’reasonable under the attending circumstances.</p> <p>Such a contract is not so personal in its nature as to prevent the contractor from making agreements with sub-contractors to wreck the buildings.</p> <p>In an action against the owner of the buildings for breach of such contract, ’ anticipated profits on sub-contracts’ made by the contractor after the execution of the original agreement are not an element of damage, and it is error to instruct the jury over objection that such profits may be recovered.</p>

■ Appeal by the plaintiffs, John H. Walbridge and another, as executors, etc., from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the . county of Kings on the 14th day of February, 1910, after a trial at the Kings County Special Term, as' directs them to pay out of the share of the defendant Ernest A. Walbridge an allowance of $1,500 to Maurice V. Theall, as guardian ad litem.

Appeal by the defendant, the Federal Printing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of April, 1909, upon the verdict of a jury for $30,000, after á trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 22d'day of April, 1909, denying the defendant’s motion for a new trial made upon the'minutes.

Appeal by Ernest A. O. Schoof, as executor, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 21st day of December, 1909, confirming the report of commissioners of estimate and assessment.

<p>Party—usufructuary of money — pleading—foreign judgment — jurisdiction.</p> <p>A usufruct under the laws of Louisiana is the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profits, utility, and advaritages which it may produce, provided it be without altering its substance.</p> <p>. Money under the Civil Code of Louisiana is an imperfect- usufruct and the position of the usufructuary thereof is'like that of a legal owner.</p> <p>The widow of a-resident of Louisiana who has an absolute right to one-half of the community property and the usufruct in the other half may sue in her own name in this -State to recover a part of the property situated here.</p> <p>An allegation that a judgment was “duly rendered ” in the court of another State is a sufficient averment of the jurisdiction of the court as against a general demurrer.</p> <p>Burr and Carr, JJ., dissented.</p>

<p>Appeal by Amelia Ellery from an order of the Surrogate’s Court of Richmond county, entered in said Surrogate’s Court on the 30th day of March, 1910.</p>

• Appeal by the defendant, Charles Fettner, from a judgment' of the Municipal Court of the city of Rew York, borough' of Brooklyn,' in' favor of the plaintiff, rendered on. the 18th day of June, 19Q9. ■

Appeal by the defendant, The- Elmore & Hamilton Contracting 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 7tli day of September, 1909, upon the decision' of the court rendered after a trial at .the Orange Special .Term.

<p>Trust — active trust — revocation — section S3 of the Personal Property Law.</p> <p>The effect of section 23 of the Personal Property Law, providing that upon the written consent of all persons beneficially interested in a trust in personal property, the creator may revoke the same and thereupon the estate of the trustee shall cease, is to remove the difficulty which formerly existed in the way'of the destruction of an active trust and to leave the beneficiary and trustee free to act in regard thereto.</p> <p>This law is retroactive and applies to trusts created prior to its enactment.</p> <p>Where a woman gave to a trustee certain money to hold and invest during her natural life and to pay the net income to her as long as she lived, with a provision that the principal with any accumulations should be paid to her executor or administrator to be distributed according to her will, the creator may at any time revoke the trust as to the whole or any part of the money and the trustee should then pay over to her the amount as to which such revocation is made.</p>

Appeal by the defendants, The United States Fidelity and Guaranty Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of November, 1909, upon the verdict of a jury, and also from respective orders entered in said clerk’s office on the 1st day of November, 1909, denying the defendants’ motions for a new trial made upon the minutes.

<p>Beal property — park—dedication—acceptance—pleading—party— individual lot owners — village — parties plaintiff.</p> <p>Where a complaint alleges that a map of certain lands showing a park was duly filed by the owner; that the surrounding lots were sold by him with reference to the map; that the public has traveled over and used the park as such for over twenty years; that the village, later incorporated, has taken the care and control of the same and "has maintained and repaired and improved it and that the land comprising the park has never been taxed, both a dedication of the land as a park by the original owner and acceptance by the public are shown.</p> <p>The owner of a tract of land who sells lots with reference to a map showing a certain area,as a public park cannot later deprive his grantees of the benefit thereof.</p> <p>Where land is so dedicated to the use of the inhabitants of a village the village may bring a suit in equity to protect its equitable rights to the use of the land as a park.</p> <p>Individual lot owners claiming title under or through deeds from the original owner of the park, which refer to the map, may join with one another and the village in which the park is situated and which claims to have accepted the dedication thereof as parties plaintiff to restrain the successor in title of the original grantee from impairing their easements in the park. '</p>

<p>Appeal by J. Edward Simmons and'others, constituting the board • of water supply of the. city of' Hew York, 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 14tli day of June, 1909,.appointing new commissioners in the proceeding.</p>

<p>Appeal by the defendant,- Radcliffe Baldwin, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the-, county of Richmond on the 13tli day of January, 1910, upon the decision-of the court, rendered after a trial at the Richmond Special Term, overruling a demurrer to the amended complaint.</p>

Appeal by the plaintiff, Israel E. Kobre, from a judgment of the Municipal Court of the city of Hew York, borough .of Brooklyn, rendered on the 14th day of July, 1908, dismissing the action on the ground that it is prematurely brought.

Appeal by the defendant, the Hudson River Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Orange on the 30th day of December, 1909, upon the verdict of a jury for §3,000, after a trial at the Orange County -Trial Term, and also from an order entered in said clerk’s office on the 10th day of January, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Harry Geller, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 11th day of October, 1909, in an action brought to recover damages alleged to have been sustained through the unlawful taking of his property under a warrant of attachment which was subsequently vacated.

Appeal by the plaintiff Mary O’Brien, 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 Orange on the 11th day of February, 1909, upon a dismissal of the complaint at the close of plaintiff’s case by direction of the court- upon a trial at the Orange Trial Term, and also from an order entered in said clerk’s office on the 5th day of March, 1909, denying the plaintiff’s motion for a…

Appeal by tlie defendant, Philip Cohen, from a judgment of the •Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3dth day of January, 1908.

Cross-appeals by the plaintiff, the Otto Gas Engine Works, and the defendant, Michael E. Moore, from a, judgment of the Supreme Court, entered in the office of the clerk of the' county of Suffolk pn the 26th day of April, 1909, upon the decision of the court rendered after a trial at the Suffolk Trial Term, a jury having been waived.

<p>Will — equitable conversion — power of sale — determining title to land — parties.</p> <p>Where a will directed executors to sell and convey any parcel of land of which the testator might “die seized,” for the purpose of raising the sums required for the payment of the debts and legacies, and it appears that the testator knew that his personalty was insufficient to pay his debts, the power of sale is imperative and works an equitable conversion of the real estate into personalty.</p> <p>The legatees under the will are not necessary parties to an action brought by a third person to confirm his title to part of the testator’s lands, although their legacies were made liens upon all the real estate of which the testator died seized.</p> <p>Burnt and Jbbks, JJ., dissented, with opinion.'</p>

■ Appeal by the defendant, The Village of North Pelham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tire county of Westchester on the 17th day of July, 1909, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, The Village of Mamaroneck, 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 20th day of January, .1910.

Appeal by Louis Han ne man, as guardian ad litem, from an order of the Supreme Court, made at the Westchester Special Term, dated tire ,14th day of August, 1909, and entered in the office of the clerk of the county of Westchester, vacating a judgment previously rendered.

Appeal by the defendan t, the Hudson Valley Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 27th day of January, 1910, upon the yerdict of a jury for $5,000 áfter' a trial at the Washington Trial Term, 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>Execution — levy on chose in action — voluntary payment of money by . debtor of judgment debtor on execution against the latter—no defense to action.</p> <p>A chose in action is not subject to levy and sale on execution.</p> <p>It is no defense to an action for money due that the sheriff after the commence- ■' ment of the action levied on money in the hands of the defendant to satisfy a judgment against the plaintiff where there is no connection shown-between such money and the cause of action stated in the complaint. The sheriff could not levy on the debt of the defendant to the plaintiff, and the defendant' had no more right to voluntarily pay the sheriff than he had to pay the judgment creditor.</p>

<p>Municipal corporationdelegation of power by board of health.^inspection of milk not ministerial duty — Public Health Law—validity of "ordinance.</p> <p>A duty resting on a public officer or board which involves an act of judgment or discretion cannot be delegated.</p> <p>A local board of health authorized to grant licenses to sell milk is without power to pass an ordinance providing that an application to the city clerk for a license shall be referred to the “milk and dairy inspector or other authorized agent” of the board of health, who shall investigate the conditions under which the applicant’s milk is produced and sold, and if He reports to the clerk that it is produced and handled “according to the rules and regulations” of the city, then the clerk shall grant the license, if such rules and regulations involve the exercise of judgment and not merely of ministerial duties. Such ordinance attempts to make an unlawful delegation of power.</p> <p>The enforcement of a municipal regulation requiring that the stables of dairymen shall be clean, well ventilated and lighted; that pure food and water be given to the herd; that the milkers and the vessels holding the milk be clean, and that it be stored in rooms where the air is pure, and that the vehicles from which it is sold be kept cle,an and unexposed to the sun in a manner satisfactory to the dairy inspector, is not purely ministerial but involves judgment and discretion.</p> <p>Section 21 of the Public Health Law, providing that every local board of health shall make and publish such orders as they deem necessary for the proper preservation of life and health, does not authorize such board to delegate its authority in respect to matters .of judgment and discretion.</p> <p>The validity of an ordinance is to be determined from its phraseology, and not from the actual practice under it.</p> <p>Kellogg and Houghton-, JJ., dissented.</p>

• Appeal by the plaintiff, Lewi's L. Forman, from a judgment of the Supreme Court in favor of the defendant Bostwick, entered in the office of the clerk of- the county of Tompkins on the 21st day of March, 1910, upon the decision of the court, rendered after a trial at the Madison Special Term, sustaining a demurrer to the complaint and dismissing the said complaint.

Appeal by the defendant, John Crossman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk. of the county of Franklin on the 1st day of December,' 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, George W. Harper, from a judgment of the County Court of Clinton county in favor of the plaintiff rendered on- the 13th day of January, 1909, convicting the defendant of the crime of libel.

<p>Tax — franchise tax—ferry company in hands of receiver on.foreclosure — liability of one purchasing “ subject to all taxes.”</p> <p>A franchise tax is a payment to the State for the privilege of doing business as ■ a corporation and the amount of business does not affect the amount payable to the public for that right.</p> <p>The purchaser of part of a ferry property on a sale on foreclosure “subject to all taxes which might be liens thereon,” takes the property subject to the lien of franchise taxes assessed against the mortgagor during the time a receiver appointed by the court in the foreclosure action operated the ferry under the corporate franchise.</p> <p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, the Childwold Park Hotel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of the county- of Franklin on the 9th day of October, 1909, upon the report of a referee.

Appeal by the plaintiff, The People of the State 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,Albany on the 14th day of February, 1910, confirming the report Of a referee and dismissing the claim of the plaintiff for unpaid taxes.

<p>Appeal by the defendant, Clark Williams, as Comptroller, etc., from a final order and judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Albany on the 20th day of January, 1910, upon the verdict of a jury rendered after a trial at the Albany Trial' Term.</p> <p>The relator applied for a peremptory writ of mandamus requiring the State Comptroller to reinstate him in the position of chief clerk of the transfer tax bureau in -his office, from which position he was removed April 10, 1909, as he alleged, on account of his political opinions and affiliations, in violation of section 25 of the Civil Service Law* The defendant denied the removal was for political reasons, and alleged that it was solely because the relator was not of sufficient experience to properly perform the duties of the position, and was not personally in accord with the Comptroller and not a proper person to fill an office the confidential relation of which was so close, with effectiveness or harmony, and. denied that the relator was willing and able to perform the duties of the position, and alleged that the best interests of the department requires and will be promoted by the absence of the relator therefrom. The issues thus raised were brought to trial before the court and a jury. The question submitted to the jury was whether the relator was removed from his clerkship on account of his political opinions or affiliations, which the jury answered in the affirmative.</p>

Appeal by the defendant, Michael Smith, from a judgment of the County Court of Albany county rendered against him on the 31st day of March, 1910, affirming a judgment of the Police Court of the city of Albany convicting the defendant of being a disorderly person.

Appeal by Charles F. Milliken and others, as Civil Service Commissioners, 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 Albany on the 8th day of April,.1910, granting a. peremptory writ of mandamus directing them to certify the compensation of the relator as physician to the county jail of Kings county.

<p>’ Appeal by the plaintiffs, Carl J. Nordstrom 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 Warren on the 30th day of October, 1909, upoh the dismissal of the complaint by direction of the court at the close of plaintiffs’ case on a trial at the Warren Trial Term.</p>

<p>master and servant — negligence — death of quarry worker —• evidence — apparent danger.</p> <p>Action to recover for the death of a quarry worker who was hit and killed by a rubbish box which was run on a cable. Evidence examined, and held, that the deceased assumed the risk and was guilty of contributory negligence.</p> <p>Where a certain construction is apparently necessary to the operation of a quarry and there is no evidence that any other quarry thus operated placed guards to warn the workmen of the apparent danger from such construction, • the master has no reason to-.anticipate injury to his employees. ,</p> <p>Cochrane, J., dissented..</p>

Appeal by the. plaintiff, Frances Clark, as administratrix, etc., ■ from a judgment of the. Supreme Court in favor of the- defendant, entered in the office of the clerk of the comity of Washington on the 22d day of January, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Washington Trial Term.

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

<p>Costs — default on. retaxation — remedy — trial fee — term fee.</p> <p>One. who makes an excusable default when the costs of an action are retaxed, is not without remedy for defects therein. He may have the bill of costs corrected on motion under section 3265 of the Code of Civil Procedure.</p> <p>Where a reference is agreed upon before the opening of court, and upon the first day of the term before the case is called an order of reference is made, no term fee for that term can be taxed although the referee never reported and another trial before a new referee was necessary.</p> <p>Where the defendant terminates a reference because the referee failed to report,- and later obtains a judgment-before a new referee, he may tax a trial fee for the trial before the first referee.</p>

<p>Practice —judgment — superfluous provision — extending time to appeal to Court of Appeals by indirection.</p> <p>A provision in a judgment entered on an affirmance by the Appellate Division stating that the court “finds and decides that the findings of fact are supported by the evidence is mere surplusage and in no way affects the right of the defeated party to appeal or to review any question, which he would have the right to review on appeal had the provision been omitted.'</p> <p>The Special Term is without power on amending such judgment hy striking out the superfluous provision to provide on the motion of the defeated party that the day of the entry of the judgment be fixed “ as of the date of such correction ” so as to extend indirectly the time of the moving party to appeal to the. Court of Appeals.</p>

Appeal by the plaintiff, Emma Fifield, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the courity of Clinton on the 13th day of March, 1909, upon the decision of the .court on a trial at the Clinton Special Term. •

<p>Beal property — partition — easement in water power — when not lost by non-user — conveyance of dominant estate — evidence — immaterial error —modifying judgment.</p> <p>The right to a water power and to control water for that purpose can be conveyed or reserved in the form of an easement, and, if so conveyed or reserved, is a charge upon the servient estate, and follows such estate into whosesoever hands it may be conveyed.</p> <p>Where it appears that a mill site was conveyed subject to such an easement in favor of the surrounding farm by one who claimed title thereto, and that the grantees of the mill site acquiesced in and ratified the grantor’s right to make, the reservation, the title of those claiming under them is subject to the servitude.</p> <p>The land is not relieved of the easement because . the purchasers at a foreclosure sale of the property permitted the mill site to be sold for taxes by the State Comptroller.</p> <p>Where an easement is held by a grant or reservation, a conveyance of the dominant estate to which it is attached transfers the easement, although it be not expressly mentioned in the deed. Such an easement is not lost by non-user.</p> <p>Where in an action to partition a farm, the principal issue is the site of the original mill, it is not error to refuse to admit in evidence the case on appeal in another cause involving the same land wherein no issue was raised as to the mill lot.</p> <p>Although certain of the evidence 'in the record was competent, its exclusion, is immaterial if there was no dispute as to the point to which it related.</p> <p>Where the lower court wrongly concluded that the easement had been extinguished, but otherwise found correctly, and the fact of the easement is a matter of record and not disputed, the judgment will be modified in that respect, and as modified affirmed.</p>

<p>Decedent’s estate — contract to purchase land—equitable conversion — payments by administratrix — title in individual name — credits on accounting — interest.</p> <p>Where a person dies holding a contract for the purchase of land, his interest .therein descends to his heirs as real estate.</p> <p>Where the administratrix' of one who held a contract for the purchase of land pays the balance due on the purchase price and takes a conveyance of the.land, she holds it in trust for the heirs of the decedent by virtue of section 2783 of the Code of Civil Procedure, even though she took title in her own name.</p> <p>It is not necessary for her to declare that she took.title as administratrix, even though she was guardian in socage of her infant children, the heirs of the decedent, and had a right to take title in her own name because of her dower' interest in the premises.</p> <p>On rendering her account as the administratrix she should not be refused credit for money of her own applied as a final payment on the contract nor for money loaned the decedent to apply thereon merely because she. had taken title in her own name. The adjudication of a court that she holds the land in trust is unnecessary, for the statute declares the trust..</p> <p>The surcharging of interest on the value of the property which administrators have held in their hands or treated as their own, although governed by established rules, is somewhat a matter of discretion with the court, and depends upon the circumstances of the case.</p> <p>Where it appears that the administratrix after her husband’s death continued to run the farm, for the purchase of which the decedent bad held the contract, and struggled to make a living for her children, and that on her accounting on the demand of her elder son after he became of age she made up her account in the harshest way against herself, she should not be charged' with- interest on the money in her hands, even from the time when she rented the farm, although she had always treated the property as her own.</p>

<p>Crime — criminal assault — grand jury—infant witness — evidence.</p> <p>The grand jury may examine a child under twelve years of age as a witness if satisfied as to her qualifications.</p> <p>In the absence of any evidence on the subject, it will be presumed that the grand ■ jury made proper investigation before receiving in evidence the statement of a witness only four years old who had been criminally assaulted.</p> <p>Where, upon the trial of one charged with criminal assault upon a child four yéars old, the child is the only one to identify the defendant as the person who enticed her into the shed, and another witness who testified to having seen him with the child, identifies him merely by general appearance, not having seen his face, and hoth declare that he "was wearing a straw hat, and four other witnesses called by defendant testified that they saw him about the place at the time of the assault and that he was wearing a derby, and there is no pretense that he could have changed his hat, there is not satisfactory corroboration of the statement of the child and a judgment of conviction should he reversed.</p>

Appeal by the defendant, the Hanover Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 12th day of November, 1909, upon the verdict of a jury, and also from an-order entered in..said clerk’s office on the 15th day of November, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the Board of Supervisors of Delaware County from an order of the County Court of Delaware county, entered in the office of the clerk of said county on the 21st day of December, 1909, directing the refund of certain taxes, with notice of an intention to bring up for review an interlocutory order entered in said clerk’s office on the 26th day of October, 1909, appointing a referee. . .</p>

<p>Appeal by the defendant, T. Edmund Krumbholz, from a judgment of the County Court of Warren county in favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of February, 1910, affirming a judgment of a Justice’s Court.</p> <p>This action was commenced in a Justice’s Court. The complaint was oral and was for services rendered by the plaintiff in the laundry of Hotel Sagamore, at Bolton Landing, H. T. The answer was a general denial. The plaintiff recovered before the justice and the defendant appealed to the County Court which affirmed the judgment of the justice.</p> <p>It appeared upon the trial that there was a written agreement between the parties dated June 19,1909, by which the plaintiff agreed to work for the defendant as mangle-girl and to perform the duties attendant upon such- a situation for “the sum of 14 dollars per month for each and every month that. I work for the interest of my employers, to be paid at the end of my service. 'The time of service to be computed from the commencement of actual service after arrival at the said hotel, and continuing until such time as my services may no longer he required, or until the close of season.” The agreement also contained the following clause: “ It is agreed that this is an entire contract, and in the event of my not giving ' satisfaction in every particular * * * and for any ‘disregard on my part of any of the stipulations qf this contract,-1 .may be discharged, or [if] I leave while my services are required, I agree to forfeit the amount of seven dollars, as liquidated damages hereby agreed upon.” The plaintiff commenced work on the nineteenth day of June and continued to -the 8th of August, 1909. She was discharged by the defendant for refusing to work in the laundry the afternoon of Sunday, August eighth. The plaintiff recovered the balance unpaid for services up to the time she was discharged. The defendant claims that the court erred in not allowing him the seven dollars which the plaintiff agreed to forfeit in the provision of the agreement already quoted.</p>

Appeal by the defendant, Alfred G-. Peck, from'an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bensselaer on the 7th day of March, 1910, upon the decision of the court after a trial at the Bensselaer Special Term. The action was commenced January 18, 1910, to recover upon a judgment for a sum of money. The complaint alleges that on the 10th day of July, 1895, one Ellen Gr.

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 20th day of January, 1910, upon-the decision of the court rendered after a trial at the Washington Trial Term, a jury having been waived.

Appeal, by th.e defendants, Helen S, Gwynne, as administratrix, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28tli day of October, 1909., upon the decision of the court, rendered after a trial at the New York Special Term, setting aside a conveyance of real property as fraudulent and void as to creditors.

Appeal by the plaintiff, G. Edgar Allen, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 18th day of February, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.

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

Appeal by the plaintiff, George G. Belden, as administrator, etch, from so much of a judgment of the-Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of July, 1909, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the •merits. • . ,

Motion by the plaintiff, Hugh Conway,'as administrator, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, on the dismissal of the complaint by direction of the court at the opening'of the. case, at the Hew'York Trial Term in June, 1909.

Appeal by the- defendants, Helen Yillard Bell and another, appearing specially, 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 April, 1910.

<p>Appeal by the defendant, William Seggie, 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 29th day of October, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28tli day of October, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Habeas corpus — appeal — stay — bail.</p> <p>Where an appeal is taken in good faith from an order dismissing a writ of habeas corpus and remanding the relator to the custody of a police commissioner and directing the latter to deliver him to the agent of another State, pursuant tó a rendition warrant and it appears 'that a question is presented which justifies the appeal, a stay should be granted.</p> <p>If the oSense with which the relator is charged is bailable in this State he should be admitted to hail pending the appeal from the order.</p> <p>Scott, J., dissented, in part.</p>

<p>.Motion to confirm referee’s report.</p>

<p>Attorney — disbarment.</p> <p>Answer to a petition to disbar an attorney for making false statements in an affidavit examined, and held, to show that the statements were true when made and to explain satisfactorily the attorney’s conduct. ■ ■</p>

Appeal by The People of the State of Pew York from an order of the Supreme Court, made at the Pew York Special Term and entered in the office of the clerk of the county of Pew York on the 7th day of April, 1910, as resettled and amended by an order entered on the 11th day of April, 1910, sustaining a writ of habeas corpus and discharging the relator from custody.

Appeal by the relator, J. & M, Haffen Brewing 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 26th day of May, 1910. The opinion delivered at Special Term is reported in People ex rel. Haffen. B. Co. v. Clement (67 Mise:. Rep 527). ,

Appeal by the relator, Jacob Kuppert, 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 26th day of May, 1910, denying the relator’s motion for a peremptory writ of mandamus to compel the defendant to prepare orders for the payment of a rebate on a liquor tax certificate.

Appeal by the defendant, Thomas Simpson, 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 January, 1910, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 8th day of January, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Isaac 0. Lowenthal, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 21st day of February,' 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the said defendant’s demurrer to the complaint in an action for libel.

<p>Corporation — foreign corporation — failure to allow inspection of stock book.</p> <p>By the provisions of section 33 of the Stock Corporation Law a foreign corporation having an office for the transaction of business in this State, except moneyed and railroad corporations, is bound to keep a stock book here and permit it to be inspected by any stockholder who desires to do so.</p> <p>A foreign corporation maintaining a “sales office” in this State cannot escape the penalty prescribed by section 33 of the Stock Corporation Law for refusing to permit a stockholder to inspect its stock book by failing to keep any stock book in the office.</p>

Appeal by the defendants, George G. Jackson 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 13th day of November, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiffs, Augustus D. Jnilliard and others, from a judgment of. the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of February, 1910, upon the dismissal of the complaint by direction of the court at the close of the plaintiffs’ case.on a trial at the New York Trial Term.

Appeal by the defendant, Max Richter, from a judgment of the Supreme Court in favor of the plaintiffs, entered in. the office of the clerk of the county of Rew York on the 23d day of February, 191Q, upon the decision of the court rendered after a trial at the Rew York Special Term.

Appeal by the defendant, The Delaware and Hudson Company, from a judgnaent of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on. the 21st day of December, 1909, upon the report of a referee.

<p>Witness — failure to obey subpoena — contempt — punishment -= inadequate excuse.</p> <p>On a finding that the failure of a witness to obey a subpoena, was “ calculated” to defeat, impair, impede or prejudice the rights or. remedies of the parties who subpoenaed him, but that in fact it did not do so for the reason that they succeeded in the action, the court has no power to fine the witness with a view of compensating the party for damages sustained by reason of a failure to attend.</p> <p>Under such circumstances the court should adjudge the witness guilty of contempt and fine him the costs of the special proceeding to punish him, and a further sum, not exceeding $250, the limitation prescribed by law, sufficient to compel respéct to the dignity of the court and to serve as a warning to others.</p> <p>A witness'who refuses or neglects to obey a subpoena cannot escape punishment upon the ground that the party who subpoenaed him was successful in the action. .</p> <p>A witness who fails to obey a subpoena cannot escape punishment - because his counsel advised him that the service was not valid. • . .</p>

<p>Appeal by the plaintiff, John F..McIntyre, from a portion of a judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk of the county of New. York' qn the lOtli, day of May, 1910, upon the report of a referee.</p>

<p>Pleading— action by corporation — allegation as to. corporate capacity-r- ■ when causes should be separately stated and numbered.</p> <p>. The complaint of a corporation should allege that ,it is a corporation and state whether it be domestic.or foreign, and if. the latter,, the law under which it is incorporated, as required by section 1775 of the Code of Civil Procedure.</p> <p>Where the complaint of several plaintiffs shows that the damages sustained by some are separate and distinct from the damages sustained by the others, and there is no allegation that by assignment, agreement or otherwise all parties . ' are mutually interested in the total damage, the plaintiffs will .he required to separately state and number the causes of action.</p>

<p>Evidence — expenditure of money loaned.</p> <p>In an action to recover money loaned, tried on the theory that the defendant borrowed the same and expended it for her individual use, she is entitled to show that, while living with the plaintiffs in the same household, the moneys were advanced to her for household expenses and that she expended them for that purpose. To that end she may put in evidence checks drawn on the bank-where the money was deposited.</p>

<p>Appeal by the plaintiff, The People of the State of New York, from an order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 15th day of December, 1909, allowing a demurrer to the indictment against the defendant.</p> <p>The opinion of the Court of General Sessions is published in People v. Tillman (63 Mise. Rep. 461).</p>

Appeal by the First National Bank of the City of New York, .judgment creditor, 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 5tli day of May, 1910, vacating an order for the examination of Artemas Ward as a third party, made pursuant to section 2441 of the Code of Civil Procedure.

Cross-appeals by the First National Bank of the City of New York, judgment creditor, and by Artemas Ward, witness, 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 May, 1910, the judgment creditor’s appeal being from so much thereof as modifies a subpoena duces tecum, and the appeal of Artemas Ward being from so much of the said order as denies his motion to vacate the…

Appeal by'the defendant, Mary W. Harriman, as executrix, 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 18th'day, of April, 1910, granting the plaintiff leave to serve an amended complaint.

' Appeal by the plaintiffs, Eugene L. Waldo and another, partners, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1910, amending nunc pro tunc defendant’s appeal to the Court of Appeals.

<p>Appeal by the plaintiff, the Western Commercial Travelers’ Association, from an. order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of .New York on the 23d day of December, 1909, denying the plaintiff’s motion to be- permitted to pay into court $4,000 and be discharged from further liability.</p>

<p>Appeal by the defendant, Guiseppe Adrogna, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 22d day of April, 1909, convicting him of the crime of extortion, and also from orders denying the defendant’s motions for a new trial and in arrest of judgment.</p>

Appeal by the plaintiff, Angelino Sartirana, 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 15th day of December, 1909, upon the dismissal of the complaint by direction of the court as to the defendants New York County National Bank and James S. Herrman at the close of plaintiff’s case, and upon the verdict of a jury in favor of the defendants Alexander Dickson and George Turnbull On a…

Appeal by the defendant, Cornelius S. Chellborg, doing business as C. S. Chellborg & Co., from .part of a judgment of the ■Supreme Court in favor of the defendant, entered in' the 'office.'of the clerk of the county of Mew York on the 10th day of March, 1910, upon the dismissal of the complaint, by direction of the court, after a trial at the Mew York Trial Term.

<p>Bills and notes—note payable on demand after date—interest — demand prerequisite.</p> <p>A promissory note payable on demand after a certain date at a particular place' without interest, does not draw interest until demand for payment or action brought.</p>

<p>Injunction—park privileges, city of New York removal of buildings erected by licensee enjoined.</p> <p>One holding a'license to sell refreshments, etc., in a park, owned by the city of ■ New York, who in reliance thereon has paid the license fee for the first year, which has not expired, and has expended §3,800 in the erection of buildings and.who has not been guilty of any default or violation of his contract obligation, is entitled to an injunction restraining the park commissioner from removing or demolishing said buildings, until it has been determined that the removal is ordered in good faith and for the purpose of enabling the commissioner to execute a plan adopted for the development of the park system. Under such circumstances, the plaintiff has no adequate remedy at law. Ingraham, P. J., dissented.</p>

Motion by the plaintiff, Julins:W. Krafft, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of defendant, rendered .by. direction of the court after a trial at the New York Trial Term in April, 1907.

<p>Mortgage — contract between mortgagees as to priority — substitution of new mortgage in place of old — expenses and counsel fees.</p> <p>The plaintiff and defendant owning a bond and mortgage in severalty agreed that the plaintiff’s ownership should be prior to and superior to that of the defendant, as if the plaintiff held a first mortgage and the defendants a second, and that the plaintiff could receive the amounts due and receipt therefor, remitting the balance to the defendant. It was further agreed that the plaintiff should have all the rights of the holder of a bond and mortgage, including the authority to accept payment, to execute a satisfaction piece, etc., and that while the plaintiff should notify the defendant of any default of the mortgagor and of any foreclosure, the plaintiff should be under no obligation to protect the interest of the defendant in any suit or sale on foreclosure.</p> <p>As there were liens prior to the mortgage held by the plaintiff and defendant, and as a foreclosure thereof was threatened, it was arranged without the knowledge of the defendant that the prior liens should be paid by the proceeds of a new first mortgage and that the plaintiff should take a new second mortgage. . On the foreclosure of the second mortgage,</p> <p>Held, that the acts of the plaintiff in satisfying the participation mortgage and the taking of a new mortgage without the consent of the defendant was not a conversion by the plaintiff as trustee, and that the lien of the plaintiff was superior to that of the defendant as under the original participation agreement;</p> <p>That the plaintiff was justified in charging against the new mortgage the amounts paid for commissions and counsel fees for procuring a permanent loan in place of the liens the foreclosure of which was threatened.</p> <p>Laughlin, J., dissented.</p>

<p>Animals—negligence — injury by kick of horse.</p> <p>Although it be, negligent to leave a horse untied and unattended , on a city street, yet there can be no recovery for injuries received by a.pedestrian who was kicked by the horse, if ¡the animal did riot- run ..away. This, because the negligence in not tying the animal, and leaving it unattended, Was not the . proximate cause Of the accident. -</p> <p>Clarke and Miller, JJ., dissented. • ...</p>

Appeal by the defendants, Alexander Lazard 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 25th day of June, 1909.

Appeal by the plaintiff, J ames B. Swing, as trustee, etc., from a . judgment of the Supreme Court in favor of the defendant, bearing date the 21st day of March, 1910, and entered in the office of the clerk of the county of ¡New York, upon the decision of the court rendered after a trial at the New York Trial Term, the jury having been discharged, dismissing the complaint, and also from an order entered in said clerk’s office on the 29th day of March, 1910.

Appeal by the plaintiff, George-E. Brown, 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 April, 1910.

Appeal by the plaintiff, the Ebling Brewing Oompany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dew York on the 11th day June, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of June, 1909, denying the ■plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, William Henry Hall, from an order of the Supreme Court, made at the New York Special Terra' and entered in the office of the clerk of the ¿ounty of New York on the 31st day of May, 1910.</p>

<p>Appeal by the defendant, Browning, King & 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 8th day of April, 1909, upon the verdict of a jury for $2,000; also from an order entered in said clerk’s office on the 2d day of April, 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 8th day of April, 1909, denying the defendant’s motion to dismiss the complaint. ,</p>

Appeal by the defendants, Gustav Bok and another, from an order of the Supreme Court, made at the Hew-York Special Term and entered in the office of the clerk of the county of Hew York on the 15th day of March, 1910, continuing in part an in junction and resettling an order entered on the 10th day of February, 1910, and also from an order entered in said clerk’s office on the 9th day of February, 1910, denying the defendants’ motion for a reargument of a motion to continue…

Appeal by the defendant, The Mutual Alliance Trust Company of New-York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of November, 1909, upon the verdict of a jury, and also from an 'order entered in said clerk’s office on the 26th day of November, 1909, denying the defendant’s motion for a new trial.

Appeal by the defendant, Levi A. Fessenden, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of November, .1909, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the defendant’s counterclaim.

<p>Appeal by the defendant, the Mercantile Warehouse Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 29th day of January, 1910, upon the verdict of a jury for $1,216.74, and also from an order entered in said clerk’s office on the 27th day of January, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, Louise Emilie Monnot and others, from a judgment of-..the Supreme Court in favor of the defendant, entered in-the'office of the clerk of the county of Hew York on the 11th day of October, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of October, 1909, denying the plaintiffs’ motion for a new trial made upon the minutes.

<p>Real property—partition—possession required — effect of contest over will devising lands.</p> <p>The possession of lands required by section 1533 of the Code of Civil Procedure in order to maintain partition is not a strict pedis possessio ; a right to possession is sufficient.</p> <p>One holding an undivided five-sevenths of land under a conveyance from the sole devisee who had purchased the interests of five of the seven heirs pending a contest over the probate of the will, which lands are in the actual possession of a temporary administrator, may maintain an action for partition, even though the contest is still pending, if there be no claim that the owner left any other will.</p> <p>Appeal by the plaintiffs, George 0. Smith and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew" York on the 12th day of April, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint.</p>

Appeal by the defendant, Martin T. Garvey, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office ■ of the clerk of the county of Mew York on the 14th day of June, 1909, upon the decision of the court, rendered after a trial at the Mew York Special Term, directing the specific performance of a contract of purchase and sale.

Appeals by the plaintiff, Isabella M. Manley and by the defendants Maria Louisa Overman and another, from so-much of a judgment of the Supreme Court in favor of the defendants, entered.in the office of the clerk of the county of Hew York on the 28th day of March, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, as upholds the validity of a charitable bequest contained in the will of Henry Howard Paul.

<p>Appeal by,the plaintiff, George A. Lee, from so much of an order of the'-Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1910, as requires him to separately state and number different causes of action.</p>

Appeal by the plaintiff, the American Woolen Company of New York, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 16th day of May, 1910, denying the plaintiff’s motion to vacate an order for the examination of two witnesses before trial.

Appeal by the defendant, the Title Guarantee and Trust Company, from a judgment of the Supreme Court in favor of .the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of October, 1909, upon the decision of the court rendered after a trial at tlie Kings County Special Term.

<p>Appeal by the defendant, Charles P. Randall, from that part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 22d day of March, 1910, which provides “ that th'e order of reference entered in the office of the clerk of Suffolk County on the 17th day of June, 1903, be and the same is hereby vacated.”</p>

Appeal by the defendant, John II. Springer, -from an order of. the Supreme Court,, made at- the. Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of May, 1910.

Appeal by the relator, Francis J. Steele, 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 4th day of April, 1910, denying the relator’s motion for a writ of mandamus.

Appeal by the defendant, Edward Mandel, 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 20th day of ¡November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of ¡December, 1909, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The People of the State of Hew York,, from ah 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 ,29th day of April, 1910, denying the plaintiff’s motion for an injunction pendente lite,

Appeal by the defendant, The Westchester Lighting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Westchester on the 7th day of February, 1910, upon the verdict of a jury, and also from- an order entered in said clerk’s office on the 28th day of February, 1910, denying the defendant’s motions to direct a verdict and for a new trial made upon the minutes.

<p>Appeal by the defendant, Hawk & Wetherbee, 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 22d day of November, 1909, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 7th day of December, 1909,, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Degnon Realty and Terminal Improvement Company, from an order of the Supreme Court, made at'the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 1st day of April, 1910.

Appeal by the plaintiff, Felix McCabe, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Eocldand on the 29th day of January, 1909, upon the decision of the court, rendered after a trial at the Eocldand Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court' in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 30th day of November, 1909, upon the verdict of a jury for $3,000 and also from an order entered in said, clerk’s office on the 3d day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mary Heist, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the' 22d .day of April, 1910, continuing an injunction pendente lite.

Appeal by the- defendant, the National Lead Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of the county of Kings oh the 31st day of December, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying tbe defendant’s motion for a new trial made upon tbe minutes.

<p>Counterclaim — action against contractor for material furnished — sums paid by defendant under contract to which plaintiif was not party.</p> <p>In an action by a sub-contractor against a principal contractor engaged in the construction of a building for the value of materials furnished, the defendant cannot counterclaim a sum which he paid to an officer of the plaintiff to settle a claim made hy him against the owner of the building for personal injuries received, which payment the defendant made in consideration of an agreement by the owner to release him from a claim for liquidated damages caused by delay in completing the contract, where the plaintiff was neither' privy to the agreement, nor consented thereto. ■ ...</p>

Appeal by the plaintiff, Emma Zaun, 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 Nassau on the 16th day of October,. 1909, upon the dismissal of the complaint, by direction of the court, after a trial at the Nassau Trial Term, and also from an order éntered in said clerk’s office on the 18th. day of September, 1909, denying the plaintiffs motion for a nexv trial made upon the…

Appeal by the plaintiff, Thomas Beyer, from an order of the Supreme Court, made at the ICings County Special Term and entered in the office of the' clerk of the county of Kings on the 5th day of April, 1910.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of tihe county of Kings on the 24th day of May, 1910, granting plaintiff leave to continue, the action as ' a poor person and vacating a stay theretofore granted to the defendant. ■

<p>Appeal—failure tó raise question as to sufficiency of verdict — contract void on grounds of public policy — defense available under general denial — agreement to pay witness more than legal fees.</p> <p>Where a plaintiff, suing on a contract to pay him money for testifying as a witness in excess of .the legal fees, fails to move to set aside a verdict for the legal fees only, upon the ground that the damages were insufficient, and to appeal from the order entered thereon, the questions as to whether the validity of the contract can be raised under a general denial and whether the court’s instruction, limiting the recovery to the legal fees, was correct, are not before the appellate court. • .</p> <p>Although the questions are not before the court the following rules are stated:</p> <p>Where the fact that a contract is illegal upon the grounds of .public policy appears upon the face of the complaint, or necessarily appears from the plaintiff’s evidence, the defense may he taken under a general denial.</p> <p>Where a witness who is not interested in the' result of a controversy residess within this "State and is amenable to process therein, an agreement to compensate him in excess 6f the legal fees for attending as a witness and for testifying as to facts within his knowledge is contrary to public policy and void.</p>

Appeal by the plaintiff, the Beakes Dairy Company, from a judgment of the Supreme Court in favor of the defendant William G. Berns, entered in the office of the cleric of the county of Kings on the 9th day of November, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Annie Early, 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 22d day of January, 1910, denying the plaintiff’s motion for judgment on the pleadings.

Appeal by the plaintiff, Beckie Hillman, from a judgment of the Hunicipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of October, 1909, dismissing the complaint.

Appeal by the plaintiff, Oswald Maune, from a judgment, of the Municipal Court of the city of Hew York, borough of Brooklyn in favor of the defendant, rendered on the 5th day of January, 1910.

Appeal by the plaintiff, Edward Hett, from an order and judgment of the Municipal Court of the city of Hew York, borough of ' Richmond, rendered on Hovember 19, 1909, in a summary proceeding brought to dispossess the tenant, respondent, for nonpayment of- rent.

Appeal by the defendant, the A. R. Sax Lumber 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 29th day of November, 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 14th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Dair, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of July, 1909, upon an order of the court setting aside the verdict of a jury in plaintiff’s favor for $3,500 and dismissing the complaint, with notice of an intention to bring up for review an order entered in said clerk’s office on the 27th day of August, 1909, upon which the judgment was entered.

Appeal by the defendant, Salvador Bodriguez, 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 11th day of January, 1910, 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 in a proceeding for the registration of a title to real property Under the provisions of article 12 of the Beal…

Appeal by the defendant, Lena Vogelsang, from a judgment of the County Court of ¡Nassau county in favor of the plaintiff, entered in the office of the cleric of said county on the 11th day of ¡November, 1909, upon the verdict of a jury^ also from an order entered in said clerk’s office on the 13th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 8th day of January, 1910, deny^ ing the…

Appeal by the defendant, the Pep pie’s Surety Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the llih day of June, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by William Auer from part of an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 11th day of April, 1910, and also from an order entered in said court on the 27th day of April, 1910, denying an application to retax costs.

Appeal by William George Foster from part of an- Order of the - Supreme Court, made at the Kings- County Special Term and entered in the office of the clerk of the county of Kings oh the 20th day of June,. 1910, resettling an order entered on the l6th day of June, 1910, which modified an order entered in said clerk’s office on the 10th day of February, 1909.

Exceptions ordered to be heard at the Appellate Division in the' first instance upon the dismissal of the- complaint by .direction of the court after a trial at the ¡Kings County Trial Term in June, 1909. • ' S

<p>Railroad — negligence — injury to- pedestrian crossing tracks—obligations Of railroad.v</p> <p>Where-one enters the lands of- another without invitation express or implied, but by bare permission, he must use' thei property as he finds it, and the owner is held to no greater degree of' care than to abstain from affirmative negligence. -</p> <p>Thus, although a railroad had permitted the general public to pass along tracks in -its yard which was situated -between two public streets, there can .be no recovery toy a pedestrian who, seeking to avoid a crowd which in the night time was passing along the way used by the public, attempted to make a short cut across a switch track and fell into a hole between the rails maintained toy the defendant to discharge coal from its trains into a coal pocket.</p> <p>Hirschberg, P. J.; dissented.</p>

<p>Contract — building contract — effect of agreement that architect’s certificate shall not be conclusive:—proof admissible under general denial.</p> <p>An architect’s certificate is conclusive evidence of performance by a contractor where the contract so provides, iinlessithe certificate be attacked on the ground ■ of fraud, misconduct or -palpable mistake, which defenses cannot be taken unless affirmatively pleaded in the answer. ,</p> <p>But where .the contract provides 'that the architect’s certificates, excepting the final certificate, shall not be conclusive evidence of performance, the owner when sued by the contractor for sums due before the issuance-of the final certificate,' may under a general denial show failure to perform, although intermediate certificates have issued.</p> <p>The intermediate certificates at most aré prima faeie evidence of performance. ■</p>

Appeal by the defendant, Hugo Béhr, as Moble Grand, etc., from a judgment of the Municipal Court of the city of Mew York, borough of Queens, in favor of the plaintiff, rendered on December ■ 29, 1909.

<p>Appeal by the defendant, Samuel Friedman, from a judgment of the County Court of Kings county, rendered against him on the 18tli day of March, 19Ú8. ■</p>

<p>Appeal by the defendants, Nathan Lacher and another, from a judgment of the Supreme Court in favor of the plaintiff, entered</p> <p>in the office of the. clerk, of the county of Kings on the 14th day of January, 1910, 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 24th day of January, 1910, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Principal and agent — embezzlement of funds received to discharge mortgage.— when loss falls upon mortgagee;</p> <p>The plaintiff, having been accustomed for some years to invest money on- first mortgages through' the medium, of-M., as her attorney, gave him a suni of money to make a loan secured by a first mortgage on lands owned by the defendant. She dealt with the defendant entirely through the medium of her attorney, M. As the defendant’s property was already incumbered by two • mortgages, in order to give the plaintiff a first mortgage, he agreed to apply the greater part of the loan in extinguishing one mortgage, and to obtain from the other mortgagee an agreement subordinating his lien to that of the plaintiff’s mortgage. When the defendant and the plaintiff’s .attorney, ,M., met to carry out the transaction, M. stated that he himself would attend to thó payment of the prior mortgage which was to be discharged, and after deducting the amount from the amount of the new loan he gave the defendant hi» per-; ' sonal check for the balance. M. did not discharge the prior mortgage, but converted the moneys and subsequently committed suicide. The mortgage which was to have been discharged imposed no personal liability on the defendant, being merely a lien upon his lands.</p> <p>Held, that the attorney, M., when he retained the money and agreed to discharge the prior mortgage, was acting for the plaintiff, and that she must stand the loss.</p> <p>Hikschbebg, P. J.,. dissented."</p>

Appeal by the plaintiff, Earl Eox, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 19th day of November, 1909, upon the dismissal of the complaint by direction of the court on a trial at the Onondaga Trial Term, and also, as stated in the notice of appeal, from an order made on the 12th day of November, 1909, dismissing the complaint.

<p>Appeal by the plaintiff, Thomas Gary, from an interlocutory judgment of the Supreme Court in favor of the defendant, Hazel M. Koerner, individually, etc., entered in the office of the clerk of the county of Erie on t.he 11th day of February, 1910, upon the decision of the court, réndered after a trial, at the Erie Special Term, overruling the plaintiff’s demurrer to certain defenses set up in the said defendant’s answer. •• •</p> <p>The answer set up as practically the only defense the Statute of Limitations. Such defense was demurred to under section 494. of the Code of Civil Procedure upon the ground that it is insufficient in law.</p> <p>The action was, commenced on the 21st day of June, 1909, to foreclose the lien of certain tax sale certificates issued by the comptroller of the city of Buffalo on tax sales made between April, 1891, and May, 1898, and to recover the amounts paid for the property purchased, with interest allowed by law.</p>

<p>Crime—larceny — sale of timber cut from State preserve.</p> <p>One employed by the Forest, Fish and Game Commission, to protect a portion of the forest preserve owned by the State, who through agents and employees cuts timber from the preserve arid sells it to third parties, falsely stating that it is sold on behalf of the State, and who receives over §7,000 as his part of the proceeds, is properly convicted of grand larceny in the first degree.</p> <p>Trees standing upon the forest preserve are property within the meaning of the statute governing larceny, although the Constitution provides that such lands shall be forever occupied as wild lands, and that timber shall not be sold or removed therefrom.</p> <p>Nor can such timber be deemed property without value because of said constitutional provision.</p>

<p>Appeal by the plaintiff, James B. Swing, as trustee, etc., from an interlocutory judgment of the Supreme Court in favor of. the defendant James Mooney, entered in the office of the clerk of the county of Erie on the 12th day of January, 1910, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the plaintiff’s demurrer to certain defenses in the amended answer- of the said defendant, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the same day.</p> <p>The action was commenced on the 16th day of July, 1907, by J ames B. Swing, as trustee for the creditors of the Union- Mutual Fire Insurance Company of Cincinnati, a corporation created and which" existed under the laws of the State of Ohio, to recover certain assessments claimed to be due and owing by these defendants. The defendant Brisbane was not served in this action and has not appeared therein. The defendant Mooney served an amended answer to the complaint, setting- up various alleged defenses, which were numbered one to six, both inclusive. The plaintiff interposed a demurrer to the third, fourth and sixth of said, alleged defenses on-the ground that they were each insufficient in law to constitute a defense. The demurrer' to each of such defenses was overruled, with costs, with- le.ave to the plaintiff within twenty days to withdraw said demurrer and plead over upon payment of costs. Interlocutory judgment was entered accordingly and from such judgment this appeal is taken. -</p>

Appeal by the plaintiff, Orazia Drago, from a judgment of the Supreme Oourt in favor of the defendant, entered in the office of the clerk of the county of Erie on the 21st day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s cáse on a trial at the Erie Trial Term.

. Appeal by the defendant, Henry' B. Curtis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 13tli day of April, 1909, upon the decision of the court rendered after' a trial at the Livingston Special-Term, and also (as stated in the notice of -appeal) from an order entered in said clerk’s office on' the1 same day directing the. entry of' said judgment.

Appeal by the plaintiff, Herman J. Westwood, from a judgment of the Supreme Court in favor of the deféndants, entered in the office' of the cleric of the county of Chautauqua on the 19th day of March, 1910, upon the decision of the court, rendered after a- trial at the Erie Special Term, dismissing the complaint upon the merits. The .opinion of the court below is reported in Westwood v. Oole (66 Mise. Rep. 53.) . -

Appeal by tbe defendant, The Hosier Safe Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of- the county of. Oneida on tbe 19th day of October, 1908, upon the verdict of a jury for $3,000, .'and also from an order entered in said' clerk’s office on tlie 26th day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes. ' '

Appeal by the plaintiff, the Weeks-Thorne Paper Company, -from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 5th day of January, 1910, upon the decision of the court rendered after a trial at the Onondaga Special Term.

Appeal by the defendant, Ella M. Johnston, from a judgment of the Supreme Court in favor of the plaintiff, entered -in the office of the clerk of the county of Erie -on the 12th day of November, 1909, upon the decision of the court rendered after a trial at the Erie Special Term,

Appeal . by the defendant, the International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the,office of.'the clerk of the county of Erie on the 5th day of January, 1910, upon the verdict o'f, a. jury, for $3,500, 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 International Eailway Company, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the cleric of said county on the 22d day of November, 1909, upon the verdict of a jury for $1,225, and also from'an order entered in said cleric’s office on the 17th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>. Bailroad — negligence — collision at grade crossing — erroneous nonsuit.</p> <p>Action to recover for injuries caused hy a collision between the' defendant’s tool- ■ ley car and a vehicle which the plaintiff was driving across the tracks. A witness for the plaintiff testified that the motorman, just prior to the collision, was not looking forward, but had turned and was looking into the car. Evidence examined, and held, that the complaint should not be dismissed upon the ground that the testimony of the witness was incredible, owing to the fact that his vision was obscured by a load of hay stationed between him and the motorman.</p>

Appeal by the defendant, The Village of Medina, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 25th day of October, 1909, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the 1st day of ¡November, 1909, denying the' defendant’s motion for a new trial made upon the minutes. -

Appeal by the defendant, the City of Amsterdam, from a judgment of the Supreme Court in favor of the plaintiff, entered ip the office of the clerk of the county of Onondaga on the 12th day of July, 1909, upon the decision of the court rendered after a trial at the Onondaga Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 12th day of July, 1909, denying the defendant’s motion to dismiss the complaint and to nonsuit the…

Appeal by the defendant, the City of Amsterdam, from an order of the Supreme Court, made at the Herkimer Special Term and entered in the office of the clerk of the county of Onondaga on the 23d day of September, 1909, denying the defendant’s motion for retaxation of costs.

Appeal by the defendant, Eosa W. Strans, individually and as executrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d day of October, 1909, upon the report of a referee. Judgment affirmed, with costs, on opinion of referee.

<p>• Attorney disciplined—misconduct.'</p>

<p>Injunction — use of trade name similar to that of another in same business— deception of public.</p>

<p>Appeal — record on appeal.</p>

<p>Appeal from a judgment-entered on the Í4th day of February,'1-910, upon a verdict directed by fhe court after a trial-at--Trial Term, and from an order entered-on. the 21st day of February, 1910, denying a motion foi' a new' trial.</p>

<p>Appeal from an order entered on the 18th day of May, 191Ó, denying a.motion to direct the plaintiff to serve an amended complaint. .</p>

<p>Appeal from a judgment entered' on the 19th day of April, 1910, upon a decision after a trial at Special Term;</p>

<p>Appeal from a decree of the Surrogate's Court, entered on the 24th day of February, 1910, admitting a will to probate..</p>

<p>Appeal from an order entered on the 27th day of June, 1910, denying a motion for an injunction.</p>

<p>Appeal from an order, of the Appellate Term reversing a judgment of the Municipal Court.</p>

<p>Pew trial — newly-discovered evidence.</p>

<p> Corporation—representative action by stockholder. </p>