Volume 14 — New York Appellate Division Reports

<p> Negligence—a city cannot delegate to an independent contractor its duty to safeguard an-excavation in a street—contributory negligence.. </p> <p>A municipal corporation must keep its streets in a safe condition for public travel, and it cannot absolve itself from this liability by an attempted delegation of its duty in this respect to an independent contractor, who is prosecuting a public improvement in a street, by inserting in the contract express provisions for the protection of the'public by the contractor.</p> <p>A person using a public street has a right to assume that the street is in a safe condition for travel, but the rule has no application where he approaches an obstruction with knowledge of its existence and location.</p> <p>Where, however, a person approaches, after dark, an excavation made in a street which she has crossed within a few days by means of a temporary bridge which . has since been removed, and she testifies, upon the trial of an action brought by her to recover damages from the municipality because of an injury arising out of the existence of the excavation, that she had no knowledge of the removal of the bridge, and supposed it was still in position, and that she walked along to its former location, looking ahead intently to see where she was going, by a path practically unobstructed, the question of her contributory negligence is one for the jury, notwithstanding the fact that there were red and white lights upon either side of the excavation, and that there were logs and poles of some size lying about which should have indicated the necessity upon her part of exercising caution in her approach to the excavation.</p>

<p>Appeal by the defendant, Susselia Hays, from a judgment of the ■County Court of Monroe county in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 19th day ■of October, 1896, upon the decision of the court affirming a judgment of the Municipal Court of the city of Rochester.</p>

Appeal by the plaintiffs, Alfred Lyth and others, from a judgment of the Supreme Court in favor of the defendant, Edward J. Kingston, entered in the office of the clerk of the coilnty of Erie on the 20th day of March, 1896, upon the decision of the court rendered after a trial at the Erie Circuit on the 29th day of March, 1895, before the court without a jury.

Motion by the defendant, The Brush Electric Light Company, for a reargument of an appeal from a judgment in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 29th day of May, 1895, upon the verdict of a jury rendered -after a trial at the Monroe Circuit, and from an order entered in said clerk’s office on the 24th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes, and also for leave to appeal to…

<p>Appeal by the defendant, The Eew 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 t-he^ county of Wayne on the 10th day of July, 1896, upon the verdict of a jury at the Wayne Circuit, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon a case containing exceptions.</p> <p>This action was begun December 5, 1892, to recover damages for a personal injury, caused, it is alleged, by the negligence of the defendant. From some time in 1882 until November 17, 1890, the plaintiff was employed by the defendant as a brakeman..</p> <p>November 17, 1890, the defendant received at East Buffalo from the Lake. Shore and Michigan Southern Railroad Company box car No. 8468 which belonged to the Newport News and Mississippi Valley Railroad Company. It was inspected by the defendant’s inspectors, and placed at the rear of an. extra freight train, being the first car ahead of the caboose, which left Buffalo between twelve and one o’clock in the afternoon of that day bound for Syracuse, N. Y. At five-fifty-five p. m. the train reached Brown street station at Rochester, and the plaintiff attempted to set the rear brake on car No. 8468. When the plaintiff applied force to the brake wheel the eye bolt in the lower end of the brake shaft, to which the brake chain connecting the brake shaft with the brake beam was attached, gave way and the plaintiff was thrown to the track and run over by the caboose; both of his legs were so crushed that the right one •was amputated a few inches above the knee and the left one two inches below the knee. As a ground of recovery the plaintiff alleged in his complaint that “ the brake which he was operating was so carelessly and negligently constructed, and so worn, old and out of repair, that the brake chain and pin or bolt attached thereto and connected therewith broke and gave way, and the plaintiff, by reason thereof, wras thrown from the top of said freight car.”</p> <p>It is further alleged in the complaint: “ That it was the duty of the defendant to provide for its employees, and for this plaintiff, as such brakeman, good, safe and secure cars, ear brakes, appliances. and machinery, and to keep the same in good repair. That defendant, not regarding its duty in this behalf, negligently, carelessly and unskillfully provided for the use of the plaintiff on the day last aforesaid, unsafe, defective and dangerous freight cars, car brakes, machinery and appliances, and allowed the same to be used by him, of which it had due notice.”</p> <p>The defendant in its answer alleged that, the accident was caused by the negligence of the plaintiff and by the negligence of his fellow-servants. This case has been twice tried. On the first trial the plaintiff was nonsuited, which nonsuit was set aside and a new trial granted by the General Term of the fifth department, no opinion being written. (86 Hun, QW.) On the trial under review the plaintiff had a verdict for $15,000. A motion for a new trial on a case containing exceptions was heard and denied at Special Term, and a judgment entered from which, and from the order denying a motion for a new trial, the defendant has appealed.</p>

Appeal by Ernest O. Hazard, the purchaser at a foreclosure sale, from an order of the Supreme Court, made at the Fide Special Term and entered in the office of the clerk of the county of Erie on the llth day of ¡November, 1896, directing him to complete his purchase.

Appeal by the defendants, Frederick 0. Lauer, Jr., 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 Monroe on the Utli day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of February, 1896, denying the defendants’ motion for a new trial made upon the, minutes.

<p>Estrays—special proceeding befoi'e a justice of the peace — no appeal to the Appellate Division— consent cannot confer jurisdiction.</p> <p>No appeal lies to the Appellate Division from an order of a County Court, made upon an appeal from an order in special proceedings instituted before a justice of the peace in reference to estrays.</p> <p>Where an appeal is not authorized by statute, the consent of the parties cannot confer jurisdiction upon the Appellate Division to hear the appeal.</p>

<p>Negligence of a co-servant—running by a signal tower in a snow storm — additional, distance signals not necesscvry — engineer running a train fast to prevent its being blocked by snow -.—paramount duty of trackmen to dear, rather than patrol, the tracks — existing, rules qf a corporation, when sufficient.</p> <p>In an action where negligence was charged against'a railroad corporation, it appeared that upon a very stormy and snowy day a work train, of which the plaintiff’s intestate was the conductor, proceeded from Oneida east and about five minutes ahead of a following fast freight train. After the work train had gone about four miles it became stalled in a snow drift west of Verona station, and about 100 feet east of the block signal tower near that station. It was struck within a minute or two after it had stopped by the freight train, and the intestate was killed by the collision. The Oneida signal tower showed a danger signal when the freight train passed it, but the towerman motioned to its engineer to go on and threw towards him a “caution card,” which indicated that he must proceed with care as there was a train in the “block.” The “block signal tower” at Verona was 700 or 800 feet west of the station, and 1,500 feet west of the tower was a “station signal” designed only to control .the working of the tracks at the station. It was disputed whether this “station signal” at Verona indicated “ danger” when the freight train passed it, but the evidence tended to show that before this signal was set- at “ danger ” the freight train had passed it and was within the space which the signal was intended to guard. When the engineer of the freight train passed the “block signal tower ” at Verona, he could not see it because of the storm until he was almost under it and within 100 feet of the rear end of the work train. His train was .then running at a considerable speed.</p> <p>When the work train became stalled its brakeman did not go back instantly, as required by the rules of the road, to stop the freight train which was following, but the plaintiff claimed that the collision occurred so soon that it was impossible for any action of the brakeman to have prevented the collision. The rules of the. company required that if a preceding train had not cleared the block, the signalman must hold the train until ten minutes after the departure of the preceding train, unless the block should be cleared before the ten minutes had elapsed; but that if, after the expiration of ten minutes, the preceding train had not cleared the block, the signalman should give the engineer a “ caution card ” authorizing him to pass the signal at danger and proceed into the block already occupied. It was also provided that a train of inferior class must keep out of the way of a train of superior class; and it appeared that the work train was of an inferior class. In the absence of any signal a train was required to stop.</p> <p>Held, that a recovery upon the part of the plaintiff could not be sustained;</p> <p>That the question whether the “ station signal ” had been properly inspected and was in a working condition, must be decided, not by mere supposition or conjecture, but that the burden of establishing that it had not been properly inspected and was not in working order rested upon the plaintiff; that the question was, however, immaterial, as it appeared from the evidence in the case that the freight train must have passed the signal before it was set at “ danger; ”</p> <p>That the engineer of the freight train, a fellow-servant with the intestate, was guilty of negligence in running past the block signal tower at Verona, in a blinding snow storm, at a considerable rate of speed, after a “ caution card” had been thrown from the tower at Oneida, and that his act was the proximate cause of the accident;</p> <p>That, as both the intestate and the engineer of the freight train understood the system of signals, and knew that there were no distance signals upon freight tracks, the railroad company was not chargeable for not having erected so-called “distance signals” upon the freight tracks, as they had done upon passenger tracks where the higher speed maintained rendered it necessary;</p> <p>That the fact that the engineer of the freight. train Was obliged to run by the “block signal tower” at Verona at a considerable speed, in order to avoid the danger that his train might be stopped by the snow, did not justify him in maintaining such a speed when he knew there was a train directly ahead of him;</p> <p>That the defendant was not chargeable with negligence because it had not made applicable to severe snow storms a rule which required trackmen in foggy weather and when a train could not be seen at 800 yards, to suspend their ordinary work and- patrol the track as signalmen, and this because in such a sitúation the removal of snow from the tracks toy the trackmen was a matter of paramount importance;</p> <p>That as it appeared that the existing rules of the company, if followed, would have been, sufficient to have prevented the accident, the jury could not be allowed to speculate as to whether the existence of further rules was desirable.</p>

<p>Appeal by the defendant, Martin Wolff, from a judgment of the Court of General Sessions of the Peace held in and for the city and county of ¡New York, rendered on the 12th day of ¡November, 1896, convicting him of the crime of contriving and proposing, and assisting in contriving and proposing, a lottery in violation of section 325 of the Penal Code. ■</p>

Appeal by the' defendant, Genevieve R. Colwell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of if ew-York on the 30th day of June, 1896, upon the report of a referee. ■

Appeal Dy the defendant, the Nassau Electric 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 New York on the' 19th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Power of sale dependent on the consent of another — it terminates with his death.</p> <p>Where the will of a testator empowers his executrix, a life tenant, with the consent of her mother, also a life tenant, to sell his real estate and to invest the proceeds, hut contains no requirements making a sale necessary, the death of the mother, without having given her consent to a sale, terminates the power, and a subsequent conveyance by the daughter as executrix does not give any title.</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 E. L. Goodsell Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of October, 1896, denying its motion to vacate an attachment on the papers on which it was granted.

Appeal by the plaintiffs, Millard F. Powers 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 New York on the 8th day of July, 1896, upon the report of a referee dismissing their complaint. The action was brought to recover damages because of the nondelivery of goods sold to, and paid for by, the plaintiffs.

Appeal by the plaintiff, Lippman Tannenbaum, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York on the 10th day of December, 1896, vacating a warrant of attachment, upon the papers upon which it was granted.,,

<p>'Will — when an annuity is charged upon lands — a right to occupy apartments has priority over an annuity payable from the same premises — costs, fees and commissions to a receiver., a party defendant.</p> <p>The will of Rose Arthur contained the following clause: “I bequeath to my husband, James Arthur, fifty dollars per month for his life, and to my daughter, Sarah Dalton, of 393 Eighth street in New York city, all the rest of my property, with the condition that my sister, Mrs. Sarah Seery, of 613 East Ninth Street in New York city, shall have her present apartments in that house, rent free for life, of, if she prefers it, fifteen dollars per month in lieu of having the apartments rent free.” The will was made but two days before the death of The testatrix, When she had, and when she must have known that she had, no property at all adequate to pay the annuity, except the premises in East Ninth street.</p> <p>Held, that as' the testatrix had nothing hut the house in question, it must be assumed that it was her intention to make the legacy to James Arthur a charge upon it;</p> <p>That there was nothing to indicate that the annuity was charged only upon the rents and profits of the house;</p> <p>That the' annuity to James Arthur was, however, secondary and subject to the provisions in favor of Mrs. Sarah Seery, whose apartments in the premises in question were given to her absolutely, coupled, however, with an option to her to surrender them in lieu of a payment of fifteen dollars per month.</p> <p>A receiver of the property of an annuitant, who is made a party to an. action brought by the annuitant to have his annuity declared a charge upon lands, is not entitled to costs out of the fund, but must recover his fees and liis commissions from the share of the annuitant.</p>

<p>Extra allowance based upon an annuity — its basis must be clearly established.</p> <p>Where an annuitant is in doubt as to his own age, and produces no satisfactory ■evidence of his final statement in regard to it, which makes him younger than at appears by the affidavits of three people that he previously stated that he was, this increased expectation of life, as hearing upon the value of his annuity, .should not he made the basis of an increased extra allowance in an action Frought by him to establish the fact that his annuity is charged upon certain lands.</p>

<p> Orime—improper pantomime, indictable as a public nuisance. </p> <p>A pantomime, symbolical of the retiring of a husband and wife upon their wedding night, although.unattended by improper language or actual exposure of the person, may be indictable as a public nuisance where it suggests indecency, excites impure imagination and is calculated to corrupt public morals.</p>

<p>' Appeal by the defendant, Charlton W. Crane, from a judgment •of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of October^ 1896, upon the report of a referee, decreeing the specific performance of a contract for the purchase of real property. ‘</p> <p>The contract was made February 7, 1895, by Shepherd Knapp as agent for Gideon Lee Knapp. The latter thereafter died; and the present plaintiffs, who succeeded to his title, were substituted as plaintiffs. The premises in question are situated on the northerly side of One Hundred and Sixtieth street, between Tenth and Eleventh avenues, in the city of New York. They are twenty-five feet in front and rear by ninety-nine feet eleven inches in depth. NTo question is raised as to the title of the plaintiffs to any portion of the premises except a strip eleven feet in width extending transversely across the rear of the property, constituting the southerly Iialf of what was formerly known as Knapp’s lane. This strip was ■originally owned by Dennis Harris, who, on December 1, 1855, conveyed it, together with other property, to John Dailey. Dailey conveyed it to Hollins in 1889, for a valuable consideration. It is not disputed that Hollins’ interest is vested in the plaintiffs; and the sole question is, whether he' acquired good title to this strip by Ms deed from Dailey.</p> <p>On October 21, 1856, Blanco, a judgment creditor of Harris, cbtained a judgment against Mm and Dailey decreeing these deeds to be void as against the plaintiff and the other creditors of Harris. In April, 1875, proceedings were taken to widen Eleventh avenue. Among other awards was one made to unknown owners for a strip included in the southerly half of Knapp’s lane, and lying about 250 feet west of the land now in question. One Buckley applied for this award as the assignee of Sarah Harris, wife of Dennis Harris. Dailey claimed in opposition. A referee was appointed to pass upon this and other claims. He decided in favor of Buckley ; his report was confirmed at Special Term; and the order entered "áhereon was affirmed at General Term and by the Court of Appeals.</p> <p>Further facts are stated in the opinion.</p>

Appeal by the defendant, Julia Dorian, 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 October, 1896,' denying her motion to strike this action from the Special Term calendar.

Appeal by the defendants, Henry J. Cannnann and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 2d day of June, 1896, upon the report of a referee.

■ Appeal by the defendant, The Mayor, Aldermen and Common- . ally of the City of New York, from a judgment of the Supreme . Court in .favor of the plaintiff, entered in the office of the clerk of the county of New. York on the 12th clay of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s -office on the 12th day of May, 1896, denying said defendant’s.' motion for a new trial made upon the minutes. .

■ Appeal by the defendant, the United Life Insurance Association, Iby per mission,, from a judgment and order of the Appellate Term ■■<of the Supreme Court in favor of the plaintiff, entered in the office •of the clerk of the comity of New York on the 3d day of February, . 1896, affirming a judgment of the General Term of the City Court of New York, which affirmed a judgment entered upon the verdict of a jury in favor of the plaintiff directed by the court, and an •order…

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of fhe county of Hew York on the 23d day of June, 1896, upon the decision of the court rendered after a trial at the Yew York Special Term, and also from an order entered in said clerk’s office on the 24th day of June, 1896, denying its motion for a-new trial.

Appeal by the defendant, The Mayor, Aldermen and Commonaltv of the City of Hew York,, from a judgment of the' Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of April, 1896, upon the verdict of a jury, and also from an Order entered in said 'clerk’s •office on the 14th day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>New trials where .probate issues are tried in the Supreme Court — appeal — a signature to a will must be seen by a witness to whom it. is acknowledged. ■</p> <p>Where, in a proceeding for the probate of a will, issues of fact relative to the execution thereof have been tried ■ in the Supreme Court before a jury, the practice relative to the granting of a new trial is the same as that which obtains where issues of fact have been submitted to a jury, pursuant to an order made in an action.</p> <p>The granting of new trials in the latter case being governed by sections 999 and 1003 of the Code of Civil Procedure, it is not necessary that a motion for a new-trial in the former case should be made at the Special Term where the motion for final judgment is made, but such motion may be made at the time the verdict was rendered, upon the grounds specified in section 999 of the Code of Civil Procedure.</p> <p>An order denying such a motion for-a new trial is appealable under subdivision 2 of section 1347 of the Code of Civil Procedure. \</p> <p>Upon the trial of issues submitted to a jury relative to the subscription of- the testatrix’s name to a will, the only evidence as to. whether - there had been a proper acknowledgment of the testatrix’s signature was given by one of the subscribing witnesses, who testified that although the testatrix had studiously and persistently sought to prevent the witnesses from seeing what was written, by so folding the will that neither the writing nor the subscription was. visible, he had, by reason of the accidental raising of the edge pf the fold,observed some writing, which he could not read, where the testatrix’s signature appeared to have been written.</p> <p>J&eld, that the evidence was insufficient to sustain a finding that there had been a proper acknowledgment within the statute.</p> <p>The acknowledgment by a testator of his subscription to his will is not sufficient within the statute (2 B. S. 68, § 40), unless the signature is so far visible to the witnesses that they can see and know that the name purporting to be subscribed is the name of the testator. It is not sufficient that the witnesses see that there is some writing, which they are unable to read, where the signature is claimed to have been.</p> <p>The fact that subscribing witnesses to a will signed the attestation clause is not a circumstance tending to show a proper execution of the will where it appears that they were not permitted to read or even to see such clause.</p>

<p> Contract —practical construction by acts of the parties —joint adventurers—accounting as among partners—a release by one associate renders Mm liable to the others </p> <p>In 1888 the plaintiff and the defendants entered into an agreement which recited that the parties had agreed to make, sell, use and otherwise dispose of certain patents and improvements which they had theretofore, or should thereafter, make or become possessed of, for their “ joint equal and mutual benefit,” aud provided that the contracting parties “agree and bind themselves and legal representatives that all business hereunder shall be in accordance with their joint, consent, and for their equal benefit and profit.”</p> <p>In 1884 and 1886 the defendants granted licenses for the use of a certain patent issued to them, the licensee agreeing to pay certain royalties. The licensee paid all royalties due under the licenses until 1892, when it refused to do so, whereupon the defendant Skidmore sued for, and obtained, his share of the royalties, due for the years 1891 and 1893, from the licensee, but the defendant Harman, who was an employee of the licensee, did not receive his share of such royalties because he executed a release thereof to the licensee.</p> <p>In an action brought for an accounting under the agreement, it was Held, that the action was maintainable;</p> <p>That, although the agreement was not full or definite, the parties, by acting under it for eight years, and, without any disagreement, dividing between them all moneys derived from the patent and improvements, had given a practical construction to its provisions which they would hot be permitted to disavow;</p> <p>That, if the agreement did not create a technical partnership, it was, at least, a joint adventure entered into for the mutual profit of the parties, giving rise to relations between the parties of the same confidential and fiduciary character as existed between copartners, and that the rights and liabilities of the parties would be determined upon the same principles as are applied by courts of equity in partnership cases;</p> <p>That the action of the defendant Harman, in releasing his share of the royalties to the licensee, was a breach of his trust duty to his co-adventurers, because of which he became liable under the agreement to account to them for the damage which they had suffered thereby.</p>

<p>Trade mark — sale of, by a receiver of a firm — injunction.</p> <p>A plaintiff in an action "brought to restrain the use of a trademark or label, must, in order to obtain an injunction pendente lite, show that he is the owner of the trade mark or label, and is entitled to its exclusive use, and that the defendants, are wrongfully and to his detriment using or imitating it.</p> <p>Where, at an auction sale of the assets of a copartnership by a receiver appointed in an action for its dissolution, one of the partners buys a trade mark or label, owned and used by the firm, the other partner, having received the benefit of the purchase price, is estopped from claiming the right to use the trade mark or label adversely to, of in competition with, the purchasing partner.</p>

<p>Lease of coal lands in a foreign State — a construction given by the New York courts governs — conversion—measure of damages — evidence of .value.</p> <p>Where an instrument, referred to as a lease, reciting that the lessor has leased “ all the coal contained in, on or under ” a certain parcel of land, and providing for the mining of the coal by the lessee, has been construed by the Court of Appeals of the State of New York as merely an executory contract for the sale of coal to be mined, such construction will, prevail over parol evidence of judicial experts and the decisions of the courts of Pennsylvania, where the land is situated, to the effect that the instrument is a conveyance, and that it devolves upon the lessee the ownership of the coal in place and unsevered from the land.</p> <p>Where an executory contract for the mining of coal, made in the form of a lease, contemplates that all the coal to be mined, and deemed merchantable, shall be only such as will pass over a screen having a one-half inch mesh, and that all which falls through the screen shall be considered as mine waste or ‘ ‘ culm,” the latter product remains the property of- the lessor; and where* it appears that, by reason of discoveries and inventions made subsequent to the lease, this culm was converted by the lessee into small coal denominated pea coal, buckwheat and birdseye coal, and became a valuable article of merchandise, the lessor is entitled to recover its value of the lessee ; and where such small coal is kno wn to the lessee to have a value, and is taken by it without the knowledge of the lessor, its owner, is never accounted for, nor offered to be accounted for, the taking is not innocent, but is wrongful.</p> <p>The ordinary measure of damages applicable in cases of trover and conversion, or in actions of assumpsit upon an implied promise to pay, applies to such a case, and the lessor is entitled to recover the value of the product which would have passed through the one-half inch mesh as of the time and at the place where the coal was taken or used by the lessee, as the bringing of this small coal to the surface of the earth and running it through machinery of the lessee in the same way as other coal, was a necessary incident of the operation of mining other coal of larger sizes for which the lessee was, by the terms of the lease, to pay. Where, under the proper construction of a contract, such small coal remains the property of the lessor, the lessee cannot show by a witness the fair market royalty paid for pea and buckwheat coal, in connection with leases or contracts by which the right to take other and larger sizes of coal is granted.</p>

Appeal by the defendant, Benjamin Hawker, from a judgment •of the Court of General Sessions of the Peace in and for the city .and county of Hew York in favor of .the plaintiff, rendered on the 17th day of September, 1896, convicting him of a misdemeanor, and also from a judgment of said court rendered on the-23d day of July,' 1896, overruling his demurrer to the indictment.

<p>Appeal by ttie plaintiff, Sarah M. Hicks-Alixanian, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of November, 1895, upon the dismissal of her complaint directed by the court after a trial at the New York Circuit.</p>

<p>Right of a tencmt to remove fixtures — effect of the acceptance of a renewal of the lease—oral agreement as to the removal of the fixtures.</p> <p>Where, at the time when certain fixtures were put in the demised premises by the tenant, an ¡oral agreement was made that they might be removed, and such agreement was renewed, when a written renewal of the lease, mot specifically describing such articles, was taken, and proof of such oral agreement is not objected to, the tenant has established a right to remove such fixtures at the expiration of the term of the renewal.</p> <p>' It seems, however, that where a tenant, having the right to remove fixtures placed by him upon the demised premises, ¡accepts anew lease of the premises without making any claim to, or mention of, that right, he loses it.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.</p>

Appeal by the defendant, Patrick J. McArdle, 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 January, 1896, vacating a judgment recovered by the defendant against the plaintiff and granting a new trial of the action upon condition that the plaintiff pay certain costs.

<p>Appeal by Frank M. Clute, as assignee of Lucius Hart, doing business under the firm name and style of Lucius Hart & Co., 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 23d day of June, 1896, sustaining certain exceptions, filed by Hendricks Brothers to the report of the referee, and overruling certain exceptions of said assignee to the referee’s report, and passing the accounts of the assignee for the benefit of creditors.</p>

Appeal by the defendants, Norman S. Washburn and others,, from a judgment of the Supreme Court in favor of the plaintiffs,, entered in the office of the clerk of the county of New York on . the 5th day of June,. 1896, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 2d day of June, 1896, and entered in said clerk’s office, denying- the defendants’ motion- for a new trial made upon the minutes. • • : The-plaintiffs, a firm…

Appeal by the defendant, The Sicilian Asphalt Paving 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 11th day of December, 1896, denying its motion for leave to serve a supplemental answer. This action is brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. Issue was joined on the 7th day of August, 1895.

Appeal by the defendant, Henry J. Crocker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of August, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of August, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The American Surety Company of New York, from parts of a judgment, and by the defendants Edward Henry Kent and another, from the whole of said judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of New York on the 20th day of April, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the American Dock and 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 New York on the 26th day of August, 1896, denying its motion to set aside an assessment of damages and for a new assessment.

<p>Appeal by the defendants, James W. Godfrey and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendants’ demurrer to the complaint, and also from the decision and order dated the 8th day of December, 1896, upon which said judgment was entered.</p> <p>The action was brought against two sureties who executed, an undertaking required by an order continuing an "injunction restraining the plaintiffs "in the present (the defendants in the injunction) suit from enforcing a claim against one William Noble.</p>

<p>Appeal by the defendant, David Buchner, 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 January, 1897, denying his motion to vacate an attachment.</p>

Appeal by the defendant, Frank Lambert,- 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 18th day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1896, denying the defendant’s-motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Charles B. Tyng, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office ■of the clerk of the county of New York on the 10th day of October, 1896, upon, the verdict of a jury rendered by direction of the •court.</p> <p>The complaint set up two causes of action : (1) For work, labor,services and ináterials furnished the defendant, and (2) upon an account stated.</p> <p>The answer contained a general denial and also set up as a counterclaim “ that the plaintiff, without cause therefor,- or default upon the part of the defendant, unnecessarily and willfully delayed . the execution of said orders (for the manufacture of certain mer■chandise), and afterwards, and from and after the month of July, 1885, or thereabouts, refused and neglected to execute said orders, and failed and refused to keep and perform- said agreement in any particular.”</p>

Appeal by the defendant, Robert R. Sizer, receiver of the L’Hommedieu Box and 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 Hew York on the -5th day of Hovember, 1896, upon the decision of the court rendered after a trial at the Hew. York Special Term. •

Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New YArlc on the 24th day of October, 1895, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 3d day of October, 1895, awarding the plaintiff an extra allowance, and also an order entered in…

<p>Oa/re required of one 'driving in a public street— injury to a, street' sweeper — what attention to his ca/re is not an admission of negligence.</p> <p>A street sweeper, employed in the public service, cannot exercise the same care while in the street as an individual would, but such a sweeper is bound to use reasonable care to avoid being run over.</p> <p>Persons driving along public streets are bound to use reasonable diligence for the purpose of seeing those who may be rightfully in the streets, whether as pedestrians, persons working in the streets, or persons in vehicles.</p> <p>The fact that the driver of. a wagon, who has run down a street sweeper, follows ■ him into a drug store, tells him that, if he is hurt, he would be glad to do any- ; thing for him, subsequently pays him ten dollars at his house, and asks him if he can do anything more for him, does not amount to an admission by the driver that he has been guilty of negligence.</p>

Appeal by the defendant, The Fidelity and Casualty 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 October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edwin P. Woodward, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1896, made upon a motion to vacate and set aside an attachment, excepting that portion of said order which denies the motion to vacate said attachment.

<p>Appeal by the defendant, The Forty-second Street, Manhattanvil'le and -St., Nicholas Avenue 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 New York on- the 30th day of June, 1896, upon the verdict of a j¡ury for $10,000, and also from an order entered in said -clerk’s office on the- 1st day of July, 1896, denying the defendant’s motion for anew trial made upon the minutes. .</p>

<p> Negligence —failure to attach guy wires, used to support a derricli, to the posts at a </p> <p> right angle. •' </p> <p>In an action to -recover for injuries caused by the fall of a derrick, which, according to the expert evidence given upon the trial, should have been held by guy wires strung from posts at very nearly a right angle, there was, evidence from which the jury might infer that the angle Was much greater.</p> <p>Meld, that the jury were justified in finding that the defendants were negligent.</p>

Appeal by the defendant, Alva S. Walker, 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 15th day of December, 1896, upon the verdict of a jury, and also from an order bearing date the 11th day of December, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes..

.Appeal by the defendant, Max H. Kaufman, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered on the 8th' day of December,. 1896, convicting him of a misdemea/nor, and also from an order bearing date the 8th day of December, 1896, and entered in the office of the clerk of said court, denying the defendant’s motion for a new trial.

<p>Assignee for creditors —?■ his liability on the covenants of a lease while he occupies the premises restsion privity of estate — he is not liable for rent which became due before his occupation—judicial notice that the first day of a month was Sunday.</p> <p>An assignee, who enters under the assignment into the possession of property leased to his ¡assignor, is liable upon the covenants of the lease during the period of his own occupation, because of the privity, of estate created by such entry. Where a tenant, who has covenanted in a written lease to pay an installment of rent upon the first day of a month, makes ¡a general assignment for the benefit of creditors upon the second day of the month, his assignee, who thereupon enters and occupies the demised premises, is not obligated, by reason of the privity of estate between himself and his assignor, created by such assignment, entry and occupation, to pay the installment which became due . on the first day of the month.</p> <p>The trial court is not bound, in such a case, to take judicial notice of the fact that the first day of a month was Sunday, and that, consequently, the rent was payable on the second, unless that fact is brought to its notice, and, if not, ' such fact must be disregarded by the appellate court.in reviewing the judgment.</p>

<p>Appeal hy the defendants, Catharine Foerster, individually and as administratrix, etc., of Joseph Foerster, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Yew York on the 25th day of July, 1896, upon.the decision of the court rendered after a trial at the Yew York Special Term!</p>

Appeal by Frederick D. Iiilburn, as Superintendent of the Banking Department of the State of New York, and Theodore E. Hancock, Attorney-General of the State 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 23d day of December, 1896, directing Benjamin B. Odell, Jr., and Edward H. Hobbs, receivers of the Murray Hill Bank appointed in the second department, and Frederick…

<p>Receiver of a solvent firm — when leave to issue an execution against its assets should</p> <p> he granted. </p> <p>Where a receiver of a firm, appointed after its dissolution for the purpose óf winding up its affairs, is really carrying on the business, and, in the meantime,, is endeavoring to get creditors to extend the time for the payment .of its debts, and the firm is in fact solvent, the court should permit a judgment creditor to-levy upon the assets precisely as though no receiver had been appointed.</p>

Appeal by the defendant-, Edward J. Swords, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling his demurrer to the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 8th day of December, 1896, directing the entry of said…

<p>Appeal by the plaintiff, Etta Forgotston, from an interlocutory judgment' of the Supreme Court in favor, of the defendant, Matthew J. McKeon, entered in the office of the clerk of the county of Eew York, on the 16th day of January, 1897, upon the decision of the court, rendered after a trial at the Eew York Special Term, overruling her. demurrer to the first and second separate defenses in the said defendant’s answer. ■</p>

<p>Negligence—failure to warn men, working in a tunnel, of the approach of an engine — degree of care to be exercised by the servant —position of peril — risks not assumed, by the servant.</p> <p>In an action in which negligence was charged against a railroad corporation, it appeared that the plaintiff’s intestate was working with others in a tunnel, far from its mouth' and with no light other than a few torches. The men had just left one track to avoid a train going north, when an engine, hacking at the rate of fifteen miles an hour, showing a small light in a lantern at the top of the cab and giving no signal beyond ringing a bell, came from the north upon the other track and - struck and killed the plaintifi’s intestate. The court, at the request of the defendant, charged the jury that they were not authorized by the evidence to find that it was the duty of the defendant to make or promulgate any rules relative to signal flags or other warnings' in or near the tunnel for the intestate’s protection.</p> <p>Held, that it was the duty of the master to, warn the men in the tunnel of the approach of a train;</p> <p>That, in the absence of rules, the defendant was called upon to use such other means of-giving warning as were proper and sufficient for the purpose;</p> <p>That that duty had not been performed in this case;</p> <p>That the question of contributory negligence was one for the jury;</p> <p>That the intestate was only bound to use such care as would have been sufficient to protect him had the defendant, upon its' part, given him the warning to which he was entitled.</p> <p>Unless a servant knows that proper precautions have been neglected, he does not take the risk of a failure to exercise such precautions.</p> <p>A person brought suddenly into the presence ¡of an immediately impending peril is not required to use the same amount of judgment as in a case in which he is made aware of the danger while it is distant from him.</p>

<p>Attorney's services — elements of compensation — duty of an administrator as to litigations affecting the estate — limits within which an estate can he charged with the expenses of such litigations — effect of changing an administrator personally with costs.</p> <p>In judging of the value of legal services, it is proper to consider the time occupied by them, the difficulty of the questions involved, the nature of the services rendered, the amount involved in the litigation, the professional standing of counsel who claim pay for services, and, to some extent, the result which has been reached.</p> <p>After the law of the case has been settled against an administrator by one appeal, while ho has a right to continue the litigation, he should never do so, unless he has reason to believe that the law thus laid down is erroneous, and that the result of a further appeal would be to free the estate from a liability which would be greater than the expense incurred by the litigation — and where a protracted litigation is carried on by an administrator contrary to this rulé,. the expenses incurred therein by him will not be allowed to him out of -the estate.</p> <p>Where a litigation in reference to the construction of a will was had, not for the benefit of the estate, but solely for the personal benefit of an administrator, and the administrator, after having been charged personally with costs at General Term, appeals to the Court of Appeals, and is there defeated, he will not be permitted to pay, out of the estate of the intestate, the compensation, in the appellate courts, of his attorney.</p>

<p>Verdict — when the action of the trial justice in setting it aside will not he reversed—weight of evidence.</p> <p>Great, if not conclusive, weight must he given to the action of a trial justice who sets aside a verdict'as against the weight of evidence, because of the peculiar advantages he has in seeing the witnesses and in hearing their testimony, while the Appellate Division is confined to printed testimony reduced to a-narrative form.</p> <p>In an action brought to recover damages resulting from alleged negligence, in which the evidence of the plaintiff, and of the one other witness called by him, whose testimony was somewhat contradicted and discredited by his own cross-examination, was refuted by five witnesses, four of whom were entirely disinterested, and all of whom had an opportunity to see the occurrence, the court considered that the action of the trial justice in setting aside a verdict in favor of the plaintiff as contrary to the weight of evidence, should be sustained.</p>

<p>Appeal by the defendant, Thomas H. McCann, as executor, etc., of Margaret Haggerty, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of June, 1896, upon an order made at the Hew York Special Term bearing date-the 18th day of June, 1896, and entered in said clerk’s office, confirming the report of a referee, upon a statutory reference of a claim against the estate of defendant’s testator, and also from an order entered in said clerk’s office on the 15th day of June, 1896, allowing costs and disbursements, to the plaintiff.</p>

Appeal by the defendant, Robert H. Arkenbnrgh, from an order of the Supreme Court, made at the Hew York Special Term, bearing date the 31st day of December, 1896, and entered in said clerk’s office, denying his motion to set aside an execution issued in the action, with notice of intention to bring up for review- upon such appeal three separate orders dated, respectively, June 1J, July 16, and July 31, 1896.

Appeal by the plaintiff, Mortimer. Stiefel, as receiver of the New York Novelty Company, from a jüdgipent, of the Supreme Court in favor of the defendants Sophia Schwab and others, entered in the office of the clerk'of the county of New York on the. 24th day of March, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaints.

<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 defendants, the Hartford Fire Insurance Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of December, 1896, continuing an injunction pendente lite theretofore granted in the action.

<p>Service by publication — a copy of the order of publication must be served, without the State.</p> <p>The requirement of section 440 of the Code of Civil Procedure that, where personal service of the summons in an action is made upon a defendant without the State, a copy of the order for the publication of the summons must he served at the same time, cannot he disregarded; a compliance with that requirement is necessary to give the court jurisdiction.</p> <p>Section 443 of the Code of Civil Procedure has no reference to the service of a copy of the order, and does not in any manner dispense with the requirement of section-440.</p>

Appeal by the plaintiffs, Minnie Rothschild'and another, from a. judgment of the Supreme Court in favor of the- defendant Moritz; Brockman, entered in the office of the clerk of the county of New York on the 7th day of May, 1896, upon the decision of the court rendered after a trial at a Trial Term -of the Supreme Court held in and for the county of New York before the court without a jury..

<p>Benefit corporation — contract to assume the risks of another corporation — ultra vires — estoppel.</p> <p>Where an incorporated benefit society assumes the risks and liabilities of a simi-" lar society, and receives from a certificate holder of the latter alb subsequent assessments necessary to keep his risk in force, it becomes liable to the certificate holder and is estopped from insisting that the contract by which it assumed the risks of the other society was ultra vires, and that the certificate holder did not acquire any right, as against it, to enforce the obligation it had assumed. , "</p>

Appeal by the plaintiff, the Camp Manufacturing Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, Job M. Reamer, entered in the office of the clerk of the county of New York on the 19th day of January, 1897, upon the decision of the court rendered after a trial at the New York Special Term sustaining the said defendant’s demurrer to its complaint.

<p>Creditors suit — latitude of examination of an alleged fraudulent grantee.</p> <p>In a creditor’s action, brought to set aside a transfer of property made by a mother-in-law to her son-in-law on the ground that it was intended to hinder, delay and defraud creditors, the plaintiff, on an examination of the son-in-law, called by him as a witness upon the trial of the action, should, in view of the • fact that the witness is hostile, be allowed wide latitude in examination; and, where an item of the consideration for the transfer, as testified to by the son-in-law, was the extinguishment of an alleged indebtedness due to him by his mother-in-law, the plaintiff should be allowed to show the state of the accounts between these parties for a considerable period of years anterior to the date of the conveyances of the property.</p>

<p> Tax—ovei'valuation —,objection to, confined to grounds of illegality and overvaluation. </p> <p>An objection made to an assessment upon the ground of overvaluation is suffl- ' ciently specific, where a written notice is given to the commissioners of taxes that the property in question is assessed at $310,000 more than is in accordance with the marketable value -thereof, as such a phrase is equivalent in its meaning to a statement that the assessment is §310,000 in excess of “the sum for which such property, under ordinary circumstances, would sell.” Semble, that the right to review an assessment for purposes of taxation in the city and county of New York is confined to the grounds of illegality and overvaluation.</p>

Appeal by the plaintiffs, John P. Jackson and another, as administrators, etc., of Maurice J. Smith, decéased, from a judgment of the Supreme Court in favor of the defendant, George G.- Decker, entered in the office of the clerk of the county of Hew York on the 28th day of July, 1896, .upon the decision of thé court rendered after a trial at the Hew York Special Term, except so far as it is necessary to retain said judgment to reform a contract therein mentioned, and from…

Appeal by the plaintiff, Louis Spero, 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 23d day of July, 1896, upon the decision of the, court rendered after a trial at the Hew York Special Term dismissing his complaint upon the merits.

<p>Equitable set-off, arising from the discount by a bank for a depositor of notes which matured after his death—fra/udulent repi'esentations as to solvency — rescission — an allegation as to a mutual mistake may be disrega/rded.</p> <p>In an action, brought hy the administrators -of a depositor against a hank, to recover a balance alleged to have been due the depositor at the time of his death, the defendant interposed an answer to the1 effect that the depositor, shortly before his death, procured from the defendant, hy fraud or mistake,the discount of notes upon which he was liable as indorser; that the depositor had represented that he was solvent; that the. bank discounted the notes upon the faith of the statement and credited him with the amount thereof; that it subsequently discovered that the representations were false, and that the depositor was either mistaken as to his alleged solvency or the representations were made with intent to deceive and defraud the defendant. These notes had not matured at the time of the depositor’s death and were for about the amount- of the deposit.</p> <p>The plaintiffs were granted judgment upon the pleadings.</p> <p>Held, that this was erroneous;</p> <p>That the answer stated a good defense upon the" ground of fraud, and that it was-improper to reject evidence offered to establish it;</p> <p>That the defendant had a right" to rescind and to keep possession of the deposit which it had at all times retained, and which it had not parted with hy the mere fact that it had credited to the depositor the amount of the notes discounted;</p> <p>That the allegation of mutual mistake, while perhaps not tenable, could be dis- ' regarded and the defense he sustained upon the ground of fraud.</p>

Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York, on the 21st day of November, 1894, upon the report of a referee. The judgment in this action was reversed and a new trial ordered before another referee, with costs to appellants to abide event.

Appeal by the plaintiff, Diedrich JÍ. Bensen, 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 18th day of February, 1895, upon the report of a referee dismissing the complaint.

<p>Appeal by the defendant, the American Dock and Trust 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 30th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This”'action was brought to recover damages for the conversion of certain cotton represented by certain storage warehouse receipts assigned to the plaintiff — a demand having been made for the cotton May 2, 1891.</p>

<p>Appeal by the plaintiff, Max Aligner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th ■day of December, 1896, denying his motion .for judgment in the ■action.</p> <p>The action was brought to recover from the defendant the sum ■of $61, the proportionate part of a license fee of $200, for the period from June 30, 1896, to October 21,1896, for which a right of action was given to the plaintiff by section 4 of the Liquor Tax Law, being chapter 112 of the Laws of 1896.</p>

Appeal by the defendants, The New York Elevated' Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of October, 1895, upon the report of a referee, with notice of an intention to bring up for review upon, siicli appeal an order made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 3d day of October, 1895,…

<p>Appeal by the. defendants, John F. Miller and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 14th. day of July, 1896,-upon the decision of the court rendered after a trial at the Westchester Special Term, enjoining the defendants from erecting a pier or projection extending out from the end of the defendants’ pier at Sing Sing, and required them to remove the piles already driven in front of the present pier.</p>

<p>Civil service legislation—the constitutional provisions cm'e self-executing — they were enacted in contemplation of existing statutes — all appointments must be made by competitive examination, as far as practicable—the Governor and the mayors of cities a/re not the final arbiters of the question—review by the court—practicability of competitive examinations is a question of law —presumption that an administrative officer has done his duty—positions which may be filled by competitive examinations—confidential positions.</p> <p>The provisions of section 9 of article 5 of the Constitution' of 1894, relative to the civil service, are self-executing and are not dependent upon the action or non-action of the legislative body.</p> <p>The Constitution of 1894 was enacted in contemplation of the then existing civil . service statutes, but those statutes are not conclusive as to the method in which appointments or promotions in the civil service are to be made; and, in so far-as the classification of appointments to office under them was discretionary, the provisions of ihe Constitution have superseded the statutes.and require that all appointments in the civil service shall be made by - competitive-examination “so far as practicable.”</p> <p>The fact that those statutes imposed upon the Governor and'the mayors of cities the assignment of appointees to various classes did not constitute those officers the final arbiters of the question, whether or not in any particular ease an examination or competitive examination was practicable. *</p> <p>The Legislature could impose the duty of classification upon other officers; and, although the duty is undoubtedly an administrative one, if the action of the administrative officer conflicts with the Obnstitution, the courts, when the question is brought before them, must hold his action void. To this extent only can the courts review the administrative action of such an officer.</p> <p>When the particular character and functions of an office or position are ascertained, the question whether competitive examination or appointment for that place is practicable or not is one to he determined by the court as a matter of law, in the light not only of "the proof, but óf common knowledge as applied to the subject-matter. ■ .</p> <p>It will be presumed that an administrative officer, in determining the question whether an examination of a candidate for office is practicable, has done his duty, subject to the "rule that under the Constitution competitive examination is the rule and exemption therefrom the exception.</p> <p>It is practicable to fill, by competitive examination, such positions as a clerk to committees in the board of. aldermen, a dockmaster in the department of finance, a chief clerk in the department of audit, a law clerk in the department of law, a surveyor in the department of assessment, a finance clerk in the department of health, a license fee collector ih the fire department, a secretary in the department of buildings, a stamp clerk in .the water bureau department of city works, and a license clerk or deputy license clerk in the city clerk's office.</p> <p>It is possible that a warrant clerk to the comptroller, whose duty it is to present warrants to the comptroller for signature, may he deemed a confidential clerk, and, therefore, exempt from competitive examination; but, assuming this to be so, the comptroller cannot, by appointing a large number of warrant clerks, divide a duty, which is confidential and in this manner obtain exemption for all and evade compliance with the State Constitution and the civil service statute; Semble, that there may he confidential positions of such a nature that the incumbent would not be exempt from a civil service examination.</p>

Appeal by the plaintiff, the American Credit Indemnity Company of New York,.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 May, 1896, upoii the decision of the court rendered after a trial at the New York Special Term dismissing its complaint. This appeal was transferred from the first department to the second department.

Appeal by the plaintiff, Joseph Steinert, Jr., 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 28th day of October, 1895, upon a nonsuit granted by the court after a trial at the Queens County Circuit.

Appeal by the plaintiff, Charles Cooper Clark, from an order of the Supreme Court, made at the Hew York Trial Term and entered in- the office of the clerk of the county of Hew York on the 10th day of April, 1896, setting aside the verdict of a jury in his favor, rendered after a trial at said term. This appeal was transferred from the first department to the second department.

<p>Appeal by "the defendant, the Second Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 12th day of March, 1896, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 11th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This appeal was transferred from the first department" to the second department.</p>

<p>Appeal by the defendant, Henry Belden, from an interlocutory judgment of the Supreme Court- in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of January, 1895, upon the decision of the court rendered after a trial, at the New York Special Term, and also from a final 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 November, 1895, upon the decision of the court rendered after a trial at the New York Special Term upon an accounting.</p> <p>This appeal was transferred from, the first department to the second department.</p>

Appeal by the defendant, Charles E. Blauvelt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 2d day of May, 1896, upon the verdict of a jury, and also from' an order entered in said clerk’s office on the 4th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

<p>Sale — breach of wan'anty as to the age of a horse — a.purchaser is bound to examine the conditions of the “pi'incipal catalogue,” although he buys by a “supplemented ” one.</p> <p>The “Catalogue of a Breeders’ Sale by Woodard and Shanklin, at Lexington, Ky.,” contained elaborate conditions of sale, among which was the following: “Ages and heights of horses are approximated by owners and are believed to' be correct, but are not guaranteed.” A “ Supplemental Catalogue of Woodard & Shanklin Sale,” which contained no conditions, described an animal as “May Day,” a bay mare, foaled in 1874, “ and, therefore, eighteen years old.” This mare was bought at the sale by a purchaser, who subsequently sued to recover for a breach of warranty as to the age of “ May Day,” which was in ■ fact twenty-two instead of eighteen years.</p> <p>Held, that as both catalogues referred to the same sale, they must be read together, and as thus read the age of the mare was not guaranteed;</p> <p>That the plaintiff’s omission to read the conditions in the principal catalogue did not affect the question of the defendant’s liability.</p>

<p>Power of sale to executrix with consent of life tenants—exercise thereof ', by conveyance to a third-party who recomeys to the life tenants — unmm'ketable title — executory devise limiting afee after afee.</p> <p>In an action brought to enforce the specific performance of a contract for the sale of real estate, it appeared that John Thompson left a will by which he devised, in 1876, to his three children, then of full age, the use and income of the premises in question, in the proportions of one-half to Jessie during life, and one-quarter each to Euphemia and Margaret during Jessie’s life. Upon the death of Jessie he devised one-half of the property absolutely to her son, and one-quarter absolutely to Euphemia and the same to Margaret. The seventh clause of his will provided that in the event of the death of Euphemia and Margaret, or either of them, before Jessie, but leaving issue, such issue should take the share of the income and property which the parent of such issue would be entitled to if living. The eighth clause of the will appointed Jessie executrix, and empowered her, with the consent of Euphemia and Margaret, to be testified by their signing the deed with her, to sell his real estate.</p> <p>In 1877, Jessie,, with the consent of her sisters and of her son, all of whom executed the deed, conveyed the property in question to a third party, who, soon after, conveyed to Jessie and her son one-third of the premises, to have and to hold the same' to Jessie during life, and, after her decease, to her son forever. On the same day he conveyed to Euphemia and to Margaret two undivided thirds. Under these deeds the plaintiff acquired his title. On the day when the contract in question was to • be performed, both Euphemia and Margaret had living issue.</p> <p>Meld, that the title was not marketable;</p> <p>That the- will gave to Euphemia and Margaret vested remainders, subject to be divested in favor of their surviving issue,, provided either died before Jessie, who was still living;</p> <p>That Euphemia and Margaret were the donees of a power of sale with Jessie, and owed a duty to their children to protect their interests as contingent remaindermen, which was inconsistent with the acquisition of the property in fee simple absolute by themselves as purchasers;</p> <p>That the devise- over to the issue of Euphemia and Margaret was a valid executory devise, although it limited a fee after a fee.</p>

<p>Commission on an application for executive clemency — expense Of the employment of a medical expert by the district attorney — a county charge.</p> <p>Where a commissioner is appointed under chapter 213 of the Laws of .1887, upon an application made by a criminal for executive clemency, to conduct a hearing in the matter (the testimony taken by him in which he is required to forward to the Governor) and, a question arising before the commissioner involving considerations of questions of medical science, the district attorney of the county employs an expert to testify as to the medical question involved, the action of the district attorney in so doing is proper, although not specifically directed by any statute of the State; and the claim of the expert witness is a proper charge against the county where the testimony is taken.</p>

Cross-appeals by the plaintiff and defendant from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of November, 1896, which modified the provisions of a judgment in respect to alimony for the support and maintenance of the plaintiff and her children entered in an action for separation.

Appeal by the plaintiff, Hattie Babin, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of July, 1896, reversing the judgment and order made by a justice of the peace of the city of Brooklyn ill summary proceedings to remove a tenant from demised premises, and also an order granted on the 25th day of July, 1896, and entered in said clerk’s office upon which said judgment…

Appeal by the defendant, The Stein way Railway Company of. Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of April, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office nune pro tune as of the 15th day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Ernest J. Wathen and others, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 21st day of October, 1895', upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of October, 1895, denying the defendants’ motion for a new trial made upon the minutes..

Appeal by the defendant, Frederick W. Wurster, as mayor of the city of Brooklyn, from an order of the Supreme Court, made át the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of July, 1896, directing that a peremptory writ of mandamus issue against him compelling him to grant, or cause to he granted, a first-class theatrical license to the Surf Athletic Club of the city of Brooklyn.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor - of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of October, 1896, upon the verdict of a jury, and also from an order, bearing date the 12th day.of October, 1896, and entered in the said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles Lewis and Barbette Lewis, as executrix, etc., of Joseph Lewis, deceased, 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 25th day of August, 1896, upon the decision of the court rendered after a trial at the Hew York Special Term. This appeal was transferred from the first department to the second department.

Appeal by the plaintiff, Mary Ann Kimbel, from a judgment of the Supreme Court hi favor of the defendants, entered in the office of the clerk of the county of Westchester on the 5th day of December, 1896, upon the decision of the court rendered after a. trial at the Westchester Special Term.

Appeal by the defendant, Pauline M. Hamburger, from a judg- ' ment of the Supreme Court in favor of the plaintiff, entered in fire-office of the clerk of the county of New York on the 20th day of April, 1896, upon the verdict of a jury, and also' from an Order-entered in said clerk’s office on the 18th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the-second department.

<p>Appeal by the defendants, the Arvernam Company and another, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 3d day of June, 1896, affirming a judgment of a justice of the peace of the town of Hempstead, and also from an order-entered in said clerk’s office on the 1st day of June, 1896, upon which said judgment was entered.</p> <p>The proceeding was instituted to obtain possession of real estate, which was alleged to have been forcibly entered upon and detained by the defendants.</p>

<p>Partnership agreement,,- construed.</p> <p>A partnership agreement provided for an equal contribution of capital, an equal division of profits and losses, that an annual inventory should be made, that an annual balance should be struck, and the profits and losses be ascertained and. a division be made on February first in each year, and that, if either partner died, “ his interest in the firm should he deemed to be of file value shown by-the last previous inventory taken before his deáth, and that that sum should be payable by thie' surviving partner to the executor or administrator of the deceased partner.” It further provided that one of the partners (Thomas Gráfry) might dissolve the partnership at any time by giving thirty days’ notice, in which case he should take .the firm property and pay to the other partner “one-half of the value of the firm assets ás shown by the last annual inventory.” -</p> <p>Held,- that the dominant provision related to ah equal division of the profits and. losses, and that in case a partner died his estate should he credited with the-profits which were earned after the last annual inventory was taken and before his death, and was to be charged with the stuns which he drew out pf the firm, during that period.</p>

<p>Appeal by the defendants, The Hew York Elevated Railroad Company and another, from judgments of the Supreme Court in favor of the plaintiffs,' entered in the office of the clerk of the county of Hew York on the 11th day of July, 1895, upon decisions of the court rendered after trials at the Hew York Special Term.</p> <p>These appeals were transferred from the first department to the second department.</p>

<p>Devise of real estate leased for unexpired terms — right to a determination in equity as to the validity of the devise—right of, the devisee to a trial by jury.</p> <p>The complaint, in an action in equity, alleged that the plaintiS was the son and only heir at law of Eliza Ann Williams, deceased; that her alleged will had been filed in the office of the Surrogate’s Court for probate, by which, after giving several legacies, she gave the residue of her estate, real and personal, to the defendant George E. Payne, and nominated him executor of the will; that the will was not duly executed; that its execution was procured by fraud, circumvention and undue influence practiced upon the alleged testatrix by the defendant Payne, and that certain premises of which she died seized had been leased by her to tenants for terms which had not expired at the time the action was commenced, and would not expire for some time thereafter. The plaintiS further alleged that he had no adequate remedy at law.</p> <p>The complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action and for want of jurisdiction.</p> <p>Held, that the dismissal of the complaint was erroneous;</p> <p>That, while a devisee was entitled to a trial by jury as to the validity of a devise to him of real estate, yet the allegation of the complaint, that his testatrix had leased the devised premises for unexpired terms, presented, in the fact of the occupation by suqh tenants, an obstacle: to a recovery by the plaintiff in an action at law, which justified a court of equity in taking jurisdiction of the case;</p> <p>That, while the mere factum of a will was exclusively a matter for a probate court, yet probate was not essential to a devise of realty, and as the present . action related to the will only in so far as it purported to devise real property, the allegations: óf the complaint were sufficient to justify equitable cognizance; That the question whether the defendant George E. Payne, as devisee, should • be denied the right to have the validity of his devise tried by jury, might,, in the -future,, be presented in a proper manner for the consideration of the court.</p> <p>Appeal by the plaintiff, Bobert Wallace, from a judgment of the Supreme Court in favor of the defendants, entered in .the office of the cleric of the county of Queens on the 13th day of February, °1896, upon the decision of the court, tendered after a trial at the Queens County Special Term, dismissing the plaintiff’s complaint.</p>

<p>Negligence —failure of a workman to close securely a door leading into a cellw' — ignorance of possible-consequences.</p> <p>In. an action to recover damages resulting from the death of the plaintiff’s intestate, it appeared that while the defendants’ employees were, pursuant to a contract between the board of education and the defendants, engaged in doing work upon a public school building, they had occasion' to open a double door opening from the cellar Of the building into an .alleyway, leading from the street to the school yard, which was used by large numbers of the school children "in going in and out.</p> <p>The employee who had last closed the door testified-that after he had latched and .bolted one-half of it his foreman called Mm; that thereupon he slammed the other half, and, hearing the latch click, walked away without paying any more-attention to it.</p> <p>It appeared that the half door which had been slammed tó, although apparently • securely closed, was- not so in fact, and the- plaintiff’s intestate, a boy about six or seven years.old, while returning through the alleyway to his class room, in. some manner leaned against an. iron grating, which stood in front of the door,, when the door opened and he fell into the cellar, receiving injuries which caused his death.</p> <p>. Held, that the assumption of the defendants’ employee, that the door"was securely fastened because he heard the latch click, was natural and justifiable, unless, there was something to call his attention to the fact that a mistake in that regard might -imperil others in life or limb;</p> <p>That, as there was nothing in the case to show that the defendants’ employees, were aware of the danger to which the unsecured door would expose school children using the alleyway, or that they had any knowledge or information, that the alleyway was liable to be so used as to lead to pressure against the door by passing pupils, a verdict for the plaintiff could not be sustained.</p> <p>Hatch, J., dissented.</p>

<p>County La/w — the action of a board of supervisors in establishing a fire district is-legislative — it cannot be reviewed by certiorari.'</p> <p>The authority conferred upon boards of supervisors, by section 37 of the County Law (Chap. 686 of the Laws of 1892, as, amended by chap. 902 of the Laws of 1896) to establish fire districts outside of incorporated villages, is-clearly a legislative power, and, being such,; its exercise cannot be reviewed by means of a- writ of certiorari.</p>

<p>Application of a loom, by the lender — acquiescence therein — what is a sufficient consideration for an agreement to extend, the time of payment — when the entry of a judgment of foreclosure is not a bar to the agreement.</p> <p>Where the owners of real property procure a loan upon mortgage, and consent that the money remain in the hands of the mortgagee to be advanced upon their orders, their acquiescence in the application by the mortgagee of a part of the loan to the payment of interest on prior loans made by the mortgagee to the mortgagors, and of taxes upon the mortgaged premises, is a bar to an action for damages brought by assignees of the mortgagors based upon a claim that such part of the money has not been advanced in accordance with the agreement.</p> <p>An agreement by a mortgagee which has brought an action to foreclose its mortgage, that it will not, for a certain period, enforce by sale any judgment of foreclosure which it may obtain in the action, provided that the appearance of a non-resident, the wife of one of the mortgagors, be procured, and that the parties to a contemplated lease of the building situate upon the mortgaged premises complete and furnish it as a first-class hotel by a specified time, and .that on the first of each month one month’s interest at six per cent be paid on the judgment of foreclosure, or until the same shall have been obtained, on the mortgages and on the interest and expenses then due, and that on the first day of each January, during the period of the extension, or within thirty days thereafter, there shall be paid one year’s tax, which has been longest due, and also any assessments and all premiums for insurance, and also the water rates, on or before August first in each year — is founded upon a good consideration.</p> <p>The agreement being made in contemplation of the entry of judgment of foreclosure and sale, and indeed providing for it, the fact that such judgment is subsequently entered does not constitute a bar to' an action by assignees of the mortgagors for damages alleged to have resulted from the mortgagee’s breach of the contract for the extension.</p>