Volume 14 — New York Supplement

Petition by the Buffalo & Geneva Railway Company for the appointment off commissioners to appraise the damages to certain lands of Warren W. Britt and another from the laying out of petitioner’s railway through said lands. The petitioner appeals from the award of the commissioners thereupon, and from the order confirming the report of the commissioners.

Proceedings for the probate of the will of John McCarthy, deceased. From the decree admitting the will to probate contestants appeal. For former report, see 8 N. Y. Supp. 578.

Action by Charles 0. Day against Charles Harris. From a judgment of the county court affirming a judgment of a justice of the peace defendant appeals.

<p>■ Appeal—Weight' op Evidence—Sufficiency op Case.</p> <p>A finding of fact will not be reviewed on appeal, where the case does not show that it contains all the evidence given on the trial.</p>

Action by Anna B. Hall against Edward B. Germain individually and as executor of James T. Germain, deceased, and another. Judgment was entered on a verdict for plaintiff, and defendant Germain appeals.

Action by Charles Wood against William Mitchell and others. Plaintiff sold defendant Mitchell material used by him in the construction of life-saying stations, for which he had a contract with the United States government. Plaintiff extended the time to answer for 20 days, and during such time defendant Mitchell confessed judgment in his co-defendants’ favor.

At chambers. William E. Tefft and others, executors, etc., of Julia Apgar, deceased, applied for the appointment of a receiver of the Horth River Bank, under Laws N. Y. 1882, c. 409, sube. 6.

Action by William H. Warner against Clarence H. Lake. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals.

Exceptions from circuit court, Monroe county. Action by Mary Birmingham, an infant, by her guardian, against the Rochester City & Brighton Railroad Company. Plaintiff moves for a new trial on a case and exceptions ordered to be heard at general term in the first instance, after a nonsuit granted at circuit.

. Appeal from Wayne county court. Application by Fanny Dunn for an inquiry into the alleged lunacy of one Harrison Dunn. From an ex parte order made on the application of petitioner, said Harrison Dunn appeals.

Action by the Craig Medicine Company against the Merchants’ Bank of 6 Rochester. A judgment of the municipal court of Rochester in favor of plaintiff was affirmed on appeal to the county court, and a motion for a new trial on the judge’s minutes was denied by the county court, and defendant appeals.

Action by George W. Crouch, Jr., against Gustave Muller. Judgment was entered on a trial by the court without a jury for plaintiff, and defendant appeals.

<p>Appeal from circuit court, Erie county.</p> <p>The Third National Bank of Buffalo sued the Butler Colliery Company on certain notes. Defendant appeals from a judgment entered on the verdict of a jury directed by the court at the circuit.</p>

Proceedings for the probate of the will of Almira Ingersoll, deceased. The decree admitting the will to probate adjudged the eighth clause thereof void for uncertainty, and the executor appeals.

Appeal fropi circuit court, Livingston county. Action by John J. Berrigan, as administrator, etc., against the New York, Lake Erie & Western Railroad Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals.

• Action by Warren Bryant and another, as executors of Francis W. Tracy, deceased-, against Harriet F. Tracy Thompson and another, for the construction of the will of said Francis W. Tracy, and for instructions in regard to plaintiffs’ duties as such executors. Plaintiffs appeal from the judgment entered on trial by the court.

Action by Caroline E. Morgenstern against Jacob E. Davis and others. Plaintiff appeals from a judgment for defendants, entered on the dismissal of the complaint on trial by the court without a jury.

Action by Lewis Sanders, against Agnes Gordon Soutter and William K. Soutter, individually and as executors of James T. Soutter, deceased, and others. Plaintiff appeals from a judgment and decree entered May 14, 1890, dismissing the complaint as to the defendants, executors of James t. Soutter, on the merits, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

Action by Adam Sander against Charles Harris, brought before a justice of the peace. Defendant appeals from a judgment of the county court, affirming on appeal a judgment of the justice in favor of plaintiff.

<p>1. Eminent Domain—Entry by Consent—Removal of Track—Damages.</p> <p>A tenant for life of a farm, living thereon with his children, the remainder-men, who were all infants, having no general guardian, agreed with a railroad company for appraisement of damages for the construction of its railroad upon the land, and that it might enter for that purpose. The company entered and took possession. Afterwards, no appraisal having been made, the father agreed in writing to convey to the railroad company a right of way across the land for railway purposes, for which the company agreed to pay a certain sum, having already paid part thereof. The company never took proceedings to acquire the right of way, and never paid any further damages for the occupation and use of the land; and defendant, succeeding to its property and franchises, removed the railway structures from the-land, and abandoned the right of way, and the land remained in the possession of the tenant for life. Meld, that he and his children could not maintain an action against defendant for removing the railway structures on the ground that they had become part of the realty.</p> <p>8. Same—Trespass.</p> <p>The first railway company was not a trespasser on the land, having entered with the consent of the life-tenant, and, so far as possible, with the consent of the infants, through their father as their guardian in socage.</p>

Action by Joseph P. Olp and others against William H. Leddick and another, overseers of the poor of the town of Mt. Morris, and Maurice Cassidy. Plaintiffs appeal from a judgment for defendants entered on the dismissal of the complaint on trial by the court without a jury. Laws IT. Y. 1881, c. 531, § 1, as amended by Laws IT.

Petition by Eliza W. Clarke, administratrix with the will annexed of David Clarke, deceased, for leave to mortgage real estate of said testator. The heirs at law of the testator appeal from an order directing such mortgage.

Action by Sophia Foels against the town of Tonawanda for personal injuries to plaintiff, alleged to have been caused by negligence on the part of defendant. At the trial the j ury found a verdict for plaintiff for $4,500. Plaintiff appeals from an order setting aside the verdict as excessive.

Case submitted on agreed statement. Submission of controversy between John E. Richardson, assignee for benefit of creditors of William M. Hunt, and Elizabeth W. Hunt and another, and Sterling G. Hadley, executor of Richard P. Hunt, deceased. Rev. St. 2i. Y. pt. 2, c. 1, tit 2, art. 1, § 8, provides: “An estate in possession is where the owner has an immediate right to the possession of the land.

Action by Delia Clark against Lorentine G. Miller, brought before a justice of the peace. Defendant appeals from a judgment of the county court affirming a judgment of the justice of the peace in favor of plaintiff.

Petition by the board of trustees of the village of Olean for the appointment of commissioners to assess the damages for the laying out and opening of Fifth street, between Washington and Reed streets, in that village, over lands of John J. Steyner and another. The commissioners awarded only nominal damages. The land-owners appeal from an order of the co.unty judge confirming the award.

<p>Beargument of appeal.</p> <p>Action by Charles D. Thompson against Alexander McLean and another. See former report, 10 FT. Y. Supp. 411; 12 FT. Y. Supp. 957.</p>

Exceptions from circuit court, Cayuga county. Action by Harriet E. Jones against the Charles H. Sagar Company and others. At the trial, the complaint was dismissed, and the exceptions were ordered to be heard in the first instance at the general term.

Action by Victor Rider and another against Robert Foggan. Defendant appeals from a judgment for plaintiffs entered on trial by a referee. Code Civil Proc. FT. Y. § 514, provides that a reply to a counter-claim may set forth “new matter not inconsistent with the complaint, constituting a defense to the counter-claim.”

Action by George It. Clark against Simon P. Swift. Defendant appeals from a judgment for plaintiff entered on trial by a referee. Code Civil Proc.

At chambers. Action by Ophelia J. Cuthbert against Cornelia D. Chauvet and others, to compel the determination of adverse claims to real property, brought under Code Civil Proc. Y. Y. §§ 1638-1650. Plaintiff obtained a temporary injunction restraining defendants from prosecuting different actions of ejectment against her, and she now moves for the continuance of such injunction pendente lite. Code Civil Proc.

Action by Weinstock against Levison and others for earnest money paid defendants on a contract for the sale of real estate, and for expenses incurred in the examination of title, which was rejected by plaintiff’s counsel because not marketable.

<p>Laecbny—Intent—Evidence.</p> <p>On a trial for the larceny of jewelry, which had been intrusted to defendant, a broker, for the purpose of selling the same, evidence that three years before the transaction in question he had pawned other jewelry, not shown to have been stolen, is not admissible to show a felonious intent in procuring the goods in question.</p>

<p>Defective Sidewalks—Contributory Negligence.</p> <p>Plain tiff fell into a trench opened to connect a building with the gas-main in the street. In an action for damages it appeared that the trench was about a foot deep, and one and a half feet in width; that two of the three rows of flagging forming the sidewalk had been removed, but the row furthest from the street had not been taken up; and that there was-nothing to obstruct plaintiff’s view of the trench. She testified that, as she approached the trench, she saw it, and stepped across it, but her foot struck upon a bar or shovel handle under the dirt which had been thrown out, and she fell back into the trench; that she did not know whether there was a passage between the end of the trench and the stoop line; that she did not notice that there was any danger, and did not pay any attention to the trench. Held, that she was guilty of contributory negligence.</p>

Exceptions from circuit court, New York county. Action by Jacob Rauth against William B. Davenport, as executor of Samuel Cardwell, Jr., deceased. At the trial the complaint was dismissed, and the exceptions were ordered to be heard in the first instance at the general term.

<p>1. Deposition—Taking by Agreement—Failure to File.</p> <p>The right to use in evidence, after the death of a witness, his deposition, taken under agreement of the parties that it might be so used, is not lost by omission to file it, as required by statute in ordinary cases.</p> <p>2. Stipulation—Evidence—Discharge in Bankruptcy.</p> <p>By a stipulation in an action, made while bankruptcy proceedings were pending against defendants, they were relieved from liability to arrest under an order of arrest which had been granted in the action, and plaintiffs agreed that no additional or further arrests would be made in the action, or any action to collect the debt, except in bankruptcy, on their part, in respect to or upon the debt for which the action was brought. Held, that extrinsic evidence to prove the understanding or intention of the stipulation was not admissible. It was to be construed according to the import of the language in view of the circumstances under which it was made; Following 21 N. E. Rep. 410.</p> <p>3. Evidence—Statement of Financial Condition—Memoranda.</p> <p>At a meeting of creditors of three copartners, of whom two were present, their financial condition was stated orally from a written statement, but the writing was not presented to or circulated among the creditors. Held, that, in a subsequent action against them, one who was present at the meeting might testify, from his notes made at the time, to what was said, no objection being¡made on the part of the partner not present at the meeting.</p> <p>4. Sale—Action for Price—Surrender of Notes.</p> <p>In an action for the price of goods sold, it appeared that notes, which had beem given on account thereof, had been filed in proving the debt in bankruptcy, and that, they were barred by limitation. Held, that failure to produce and surrender them at the trial would not prevent a recovery by plaintiffs.</p> <p>5. Bankruptcy—Discharge—Fraud of Partner.</p> <p>Where goods obtained for a firm by fraudulent representations of one partner are received and disposed of by the firm for their benefit, a discharge of the partners in bankruptcy does not relieve even those free from participation in the fraudl from liability for the debt so fraudulently contracted. Reversing 12 N. Y. Supp, 625.</p>

Application by George W. McLean, as receiver of taxes in the city of New York, for the punishment of the New York & South Brooklyn Ferry & Steam Transportation Company for its non-payment of a tax upon its personal property. Said company appeals from an order imposing a fine for such non-payment.

' Certiorari, on the relation of Isaac P. Martin, to review the proceedings of the board of assessors of the city of New York in levying an1 assessment upon the relator’s property.

Application by Alonzo T. Decker for a'writ of peremptory mandamus directing the Hoboken Turtle Club to restore him to his office and membership in said club, from which he had been expelled. The club appeals from an order granting a peremptory writ.

Certiorari, on the relation of Henry Butts, to Charles F. MacLean and others, police commissioners of the city of New York, to review a judgment of said commissioners dismissing relator from the police force.

Action by Nathaniel Sleeman against Lewis Hotchkiss and others. Plaintiff appeals from an order denying a motion to amend the complaint. For former report, see 13 N. Y. Supp. 98.

Action by Charlotte M. Parker against George W. Murray, as executor of John V. Beam, deceased, and others. Plaintiff appeals from a judgment for defendant entered on a dismissal of the complaint at the trial.

Action by Utley Hare against Michael Mahony. Defendant appeals from» a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

<p>Appeal from judgment on report of referee.</p> <p>Action by Delos I. Johnson, as administrator, against George W. Johnson and Devillo Johnson. There was a judgment for defendants, and plaintiff appeals.</p>

Action by La Fayette Bittenhouse against John Oreveling, as executor of Alanson Bittenhouse, deceased, who was plaintiff’s father. Defendant appeals from a judgment for plaintiff entered'on the verdict of a jury. Code Civil Proc. 21.

<p>Appeal from circuit court, Livingston county.</p> <p>Action by Mary 0. Putnam against Margaret Wigg. From a judgment for plaintiff defendant appeals.</p>

Action by Junius Judson against Mary A. O’Connell, individually and as executrix of the will of Ann Buckley, and others. The court refused to order a resale of the premises, and defendants appeal.

<p>Appeal from special term, Monroe county.</p> <p>Action by Amos H. Cobb and Alfred Potter against Jeremiah S. Ramsdell and others. The complaint was dismissed, and plaintiffs appeal.</p>

Action by the Sixth Avenue Railroad Company against the Manhattan Railway Company to restrain the operation of defendant’s elevated railroad in a street in front of plaintiff’s premises, and to recover past damages. For former report, see 9 N. Y. Supp. 207.

<p>Patents for Inventions—License—Liability por Royalties—Receivers op Licensee.</p> <p>A chattel mortgage executed by a licensee of a patented invention, on articles manufactured by Mm under the license, is not a “ sale ” of such articles, even after default in the payment of the mortgage, within the meaning of the license, which stipulates for the payment of a specified royalty to the patentee for the manufacture and “ sale ” of the patented article by the licensee; and hence, where receivers of the licensee, subsequently appointed, have redeemed the articles from the mortgage, and then sold the same, the liability for the royalties then accrues, and is the debt of the receivers, to tie paid for in full by them, and not the debt of' the licensee's estate, to be paid by the receivers as other claims of the estate are paid.</p> <p>Per Kennedy, J., dissenting.</p>

<p>Appeal from Genesee county court.</p> <p>Action by William S. Patterson and another against Joseph D. Delaney. There was a judgment for plaintiffs, and defendant appeals.</p>

Action by William Savage and others against the city of Buffalo to set aside an assessment. From-an interlocutory judgment entered on an order overruling a demurrer to the complaint defendant appeals.

Appeals from special term, New York county. Action by Maria Stelz against Minnie Schreck and others, for dower. Each party appeals from a judgment in favor of plaintiff for dower in an equal undivided half of certain real estate, and each also moves for a new trial.

<p>Landlord and Tenant—Injury to Premises by Fire.</p> <p>Laws KT. Y. 1860, c. 345, § 1, provides that “the lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied. ” Premises occupied by defendants as lessees were injured by fire on July 35th, and on August 3d defendants removed therefrom. There was evidence that it was necessary for defendants to remain such length of time after the fire on account of insurance on their goods. Held, that whether the premises were so injured as to be untenantable, and whether defendants exercised due diligence in removing, should have been submitted to the jury.</p>

<p>Appeal from surrogate’s court, Monroe county.</p> <p>Proceedings for the probate of the will of Samuel Wilcox, deceased. Probate was denied, and proponent appeals.</p>

Action by John P.'Magovern and others against Evolin B. Bobertson and others. There was a judgment for plaintiffs, and defendants appeal.

Action by Stephen Patterson, an infant, by Samuel P. Moulthrop, his guardian ad litem, against Stephen Kelly. From an interlocutory judgment sustaining plaintiff’s demurrer to the second defense of the amended answer defendant appeals.

<p>Appeal from special term, Monroe county.</p> <p>Action by Iteuben A. Adams against Nancy Ann Hilliard and others. From an order denying a motion to vacate an attachment, defendants appeal.</p>

Application by George H. Brown, as administrator of the estate of Isaac 0. Brown, deceased, for leave to sell the real estate to pay decedent’s debts. From that portion of the surrogate’s decree disallowing her claim Mary J. Malay appeals.

<p>Defective 'Highways—Liability for Injuries.</p> <p>In an action for injuries caused by a defective highway it appeared that at the place of' the accident the road was cut in the side of a hill and built up with logs on the lower side, which was not protected by any barrier. The surface of the road was covered with loose stones, and had been since the road was made. The horse stumbled, and both horse and buggy were precipitated down the embankment. Plaintiff’s evidence tended to show that he exercised due care, and that his horse was manageable. Defendant’s evidence tended to show that plaintiff was well acquainted with the road, and that the horse was difficult to manage. Held, that a verdict for plaintiff would not be disturbed.</p>

On motion to dismiss complaint. Action by Charles G. Gabrielson against Frederick Waydell. Plaintiff was a member of the crew on defendant’s vessel, and brings this action for an assault committed on him by the captain.

Action by Jacob H. Deitsch against Frederick Schanning, Marie L. Estay, and Joseph Lubin. Defendants appeal from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Plaintiff, McCarty, a stockholder in a corporation, brought this action against Parker and others, trustees of the corporation, to compel defendants to account. He also asked for an injunction and the appointment of a receiver. Plaintiff now moves'for the continuance of an injunction obtained by him. Defendants object, on the ground that the summons in the action was not served on them in the city of New York.

Action by John Reilly and others, as executors of Bernard Reilly, late sheriff of the city and county of Yew York, against Rufus Dodge, a former deputy of said sheriff, and others, on a bond given to said sheriff to indemnify him against loss from the acts of such deputy. Plaintiffs appeal from a judgment for defendants entered on trial by a referee.

At chambers. Plaintiff, Powers, recovered a judgment at the trial term of the superior court against the Manhattan Railway for damages resulting to plaintiff’s property from the construction of defendant’s road in the street in front thereof. This judgment was affirmed by the general term, but on appeal to the court of appeals it was reversed, “ with costs to abide the event. ” See 24 H. E. Rep. 295.

. Action by John Morrison against the Press Publishing Company. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

<p>Action by James C. Duff against Lillian Bussell ior an injunction.</p>

At chambers. Action by Maria Lezensky against the Supreme Lodge of the Knights of Honor on a mutual benefit certificate. Plaintiff obtained a judgment at the trial term, but on appeal the general term reversed the judgment, and ordered a new trial, “ with costs to abide the event. ” See 3 N. Y. Supp. 52. Plaintiff now moves that defendant be compelled to enter judgment on said order of the general term. Code Civil Proc.

Action by Haumam against Braun for goods sold and delivered for $844.50. Plaintiff demanded judgment for only $53.12, admitting that defendant was entitled to credits for the balance. On the trial, plaintiff recovered $49.39, for which sum, with costs, he entered judgment. Defendant now moves for a vacation of the judgment on the ground that plaintiff was not entitled to costs. Code Civil Proc.

Action by Elizabeth M. Levin against the Standard Fashion Company. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury. See former reports, 4 FT. Y. Supp. 867, and 11 FT. Y. Supp. 706.

Action by Frederick W. Fink and others against Rudolph Fraenkle. Plaintiffs appeal from an order denying their motion to punish defendant, against whom they had recovered a judgment, execution on which had been returned unsatisfied, for refusing to deliver to a receiver, appointed in proceedings supplementary to execution against him, certain property owned by him.

Action by the Mehrhof Bros. Brick Manufacturing Company against Frederick Wood. Plaintiff appeals from a judgment for defendant entered on a verdict rendered by direction of the court.

<p>Appeal from trial term.</p> <p>Action by David Friedman against Henry Myers. Defendant appeals from a judgment for plaintiff, entered on the verdict of a jury.</p>

<p>Appeal from trial term.</p> <p>Action by Floyd Clarkson against Philip L. Meyer. Plaintiff appeals from a judgment for defendant entered on the verdict of a jury.</p>

<p>On judicial settlement of the accounts of the deceased executrix of the estate of Margaret Langlois.</p>

Action by Meylert against the Gas Consumers’ Benefit Company for breach of contract. The ease was tried before the court without a jury.

Action by Patrick Cassidy and I. Richard Adler against Charles F. Font-ham. Defendant appeals from a judgment for plaintiffs on trial by a referee.

Action by Olin D. Gray against the Alabama National Bank. Plaintiff appeals from a judgment of the general term of the city court affirming a judgment of that court entered on a trial by the court, a jury having been waived, and affirming an order denying a motion foranew trial. For former report, see 10 N. Y. Supp. 5.

Action by the fire department of the city of New York against James M. Hill and others. Defendant Hill appeals from a judgment for plaintiff.

Action by John Hoey, as president of the Adams Express Company, against Thomas E. Gilroy, as commissioner of public works, and Michael E. Cummings, as superintendent of incumbrances, of the city of Mew York. Defendants appeal from a judgment for plaintiff entered on trial by the court without a jury.

Motions for leave to amend the returns of a justice of a district court on appeals from judgments of such court, and for rearguments of the appeals upon the returns so amended. Code Civil Proc.

Action by Alexander Rich against the Yew York Elevated Railroad Company and others to restrain defendants from the operation of their road in the street in front of plaintiff’s premises, and to recover past damages.

Action by Catharine Wynn against the Central Park, North & East River Railroad Company. Defendant appeals from a judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial.

Petition by Thomas W. Parkin, executor of Emily L. De Bussy, deceased, that an order of reference to examine the account of said executor be vacated. The executor appeals from an order denying the petition.

Action by Albert A. Davis against Joseph Benedict and Henry T. Dunham, individually and as executor of the will of Fanny S. Benedict, deceased. From an order granted on the motion of defendant Dunham, Benedict and others appeal.

Action by George S. Wallace against Michael H. Williams and Sophia B. W. Williams. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>Municipal Corporations—Engine in Street—Runaway Team.</p> <p>In an action against a city for injuries to plaintiff’s horse and buggy, it appeared that the horse was scared by a large engine which was being used to roll defendant’s street along which plaintiff was driving. A man 76 years old, who was employed by defendant to protect travelers from injuries by the engine, seized plaintiff’s horse by the bridle and attempted to restrain it, but was thrown down, and the horse ran away. There was evidence that defendant was negligent in keeping the engine in motion when plaintiff’s horse was approaching, in omitting to provide proper signals and protection, and keeping a man inadequate by reason of his age to perform the duties required. There was no evidence of contributory negligence. Held, that the question of defendant’s liability was properly submitted to the. jury, and their verdict would not be disturbed.</p>

Proceedings for the appraisal of the interest of Mary Daggett in the estate of her deceased husband, Danforth Daggett. From the order of the surrogate the administrator, Nelson Daggett, appeals. For former report, see 9 N. Y. Supp. 652.

Action by Daniel Engel, as administrator of Frederica Engel, deceased, against the Eureka Club. Judgment was entered on a verdict for defendant, aud plaintiff appeals.

This is an application for an order directing the defendant, the German and French Boman Catholic Association of Buffalo, to deliver to the petitioners the body of their mother, Elizabeth Bonn, interred in defendant’s cemetery grounds, for the purpose of reinterment thereof in the petitioners’ family lot in the Buffalo Forest Lawn Cemetery.

Action by Frank Boss, ancillary administrator of James G-. Boss, deceased, against Wallace P. Willett and another for an accounting of sales and the recovery of any balance due plaintiff’s intestate. The plaintiff appeals from an order denying his motion to require the defendants’ attorneys to accept his amended complaint. For former reports, see 11 H. Y. Supp. 621, and 13 FTY. Supp. 102, 103.

Action by Annie B. Foster (revived in the name of Bufus Foster, her executor) against Benjamin Wetmore, executor of Mary Hopeton Drake, deceased, to recover interest upon a trust fund directed by defendant’s testator to be created for the benefit of the plaintiff. There was a judgment for the plaintiff, and the defendant appeals. ■

Petition by the Stuyvesant Safe-Deposit Company, assignee of De Forrest Fox, as a creditor of the estate of Samuel Lyman, deceased, to compel an * accounting by the administratrix thereof. The said administratrix, Lydia A. Lyman, appeals from an order directing her to render and file her account. For former report, see II Y. Y. Supp. 530.

Action by Joseph Marrone against the New York Jockey Club, to recover damages for breach of a contract, entered into between the plaintiff and defendant, who, by mistake in the contract, was called the Westchester Jockey Club. By the terms of the contract the plaintiff was to be paid $1.50 per cubic yard for excavations of rock, blasting, etc., required on the defendant’s premises, to be made according to a profile and survey of the work.

Indictment against Michael Fleming for grand larceny. Defendant appeals from a judgment of conviction entered upon the verdict of a jury.

Indictment against William McElroy and Edward Ryan for robbery. Defendants appeal from a judgment entered upon the verdict of a jury, finding them guilty of robbery in the first degree.

Motion by Jane Eliza Davis, administratrix with the will annexed of Cornelia Post, deceased, for a resettlement of an order of the surrogate of the county of New York referring back to a referee proceedings to compel Henry A. V. Post, as administrator of Edwin Post, deceased, who had been in his life-time administrator with the will annexed of said Cornelia Post, to account for the estate of said Cornelia Post.

Action by Clara A. Lam band others against Samuel Treat Lamb and others to obtain a construction of the will of Anthony Lamb, deceased, and a partition among the residuary devisees of his estate of certain property included in a devise of the testator, which failed to take effect, consisting of two lots with improvements on Columbia street and two lots on Sheriff street in the city of New York.

Action by the.Suburban Rapid Transit Company against the mayor, aider-men, and commonalty of the city pf New York and others to establish the right of the plaintiff to extend its railway through St. Mary’s park in the northern part of said city. Plaintiff appeals from an interlocutory judgment sustaining a demurrer to its complaint, and from the order directing the entry of such judgment.

Indictment against Thomas Hagan for burglary. Defendant appeals from a judgment entered upon the verdict of a jury, convicting him of burglary in the third degree. Code Grim.

-Appeal from special term, New York county. ° Action by Edward Colien and Isidore Sonnenthal against Ezekiel Plonsky and Aaron Auspach to set aside an alleged fraudulent transfer of bills receivable. The plaintiff appeals from a judgment entered on the dismissal of the complaint át the trial.

Action by Samuel E. Howe against Thomas M. Moore to recover damages for failure to accept goods manufactured to the defendant’s order. There was a judgment for the plaintiff, and the defendant appeals.

Submission of controversy without action, upon statement of facts agreed on, between Ferdinand Brooks, plaintiff, and John T. Terry and another, as executors and trustees under the will of Edmund Terry, deceased, defendants.

Action by John Claflin and others against John E. Bagan and others to set aside an assignment for the .benefit of creditors made by defendants. The venue was laid in New York county, where plaintiffs reside, whereas defendants reside in Dutchess county.

Action by Mary 0. Simis against Daniel S. McElroy. There was a judgment for the plaintiff, and the defendant, appeals. The case was tried by the court without a jury. There was no decision in writing, signed by the judge, filed with the papers on appeal. Code Civil Proc.

Action by Jonas P. Yarnum, administrator with the will annexed of Charles J. Hayden, deceased, against James W. Taylor. Plaintiff appeals from a judgment for defendant entered on the dismissal of the complaint at the trial. For former report, see 7 N. Y. Supp. 313.

Action by the Delaware, Lackawanna & Western Railroad Company against Frederick M. Stetler and others and Clarence F. Birdseye, impleaded with Nathan Corwith, Jr., and others, to determine the title to certain goods in the plaintiff’s possession as between the defendants, claiming under rival assignments. All parties united in an application to the court to hear all the testimony and decide all questions involved in the action, as between the contesting defendants.

Action by Enoch P. Hindis and others against Aaron Field and another, to recover possession of certain personal property claimed by the plaintiffs under a chattel mortgage executed to the plaintiffs by the firm of L. D. Golds-bury’s Sons on the 30th day of August, 1889.

court, New York county. Action by Margaret Devlin against the mayor, aldermen, and commonalty of New York city, to recover interest on an award of $61,500 damages to the plaintiff upon condemnation of her property. There was a judgment for the plaintiff, and the defendant appeals.

Action by Joseph Sawyer and others against Otis G. Clark and another to recover the possession of certain raw material manufactured into goods by the defendants. The plaintiffs appeal from an order changing the place of trial, on the application of the defendants, from the county of Few York to the county of Bensselaer.

Action by the New York, Lake Erie & Western Railroad Company against the National Steam-Ship Company, Limited, to recover freight charges paid by the railroad company on 266 bales of cotton transported by itself and other carriers, but destroyed by fire before delivery to defendants. Defendants relied upon an exemption from liability for loss or damage by fire while goods were in transit or on deposit, contained in its bill of lading.

Action by Eugene Smith, executor of Richard Patrick, deceased, against Fredericka Rentz, to recover a balance upon account. There was a judgment for the plaintiff, and the defendant appeals.

Action by John B. Smith, assignee of Arthur L. Meyer, against William F. Lennon and another to foreclose a mortgage executed by said Lennon to said Meyer.

Application by Thomas B. Kniffin and another for an order directing the receiver of the North River Bank to pay petitioners the sum of $533.42, deposited in said bank by petitioners on the day of its failure. The receiver of said bank appeals from an order granting said applications.

Action by Increase M. Grenell against Sarah A. Stillwell to obtain an injunction restraining the defendant from the erection of a building charged to-be a type of a tenement-house, in violation of an agreement among lot-owners of the vicinity to erect private residences only on their grounds. The plaintiff appeals from an order denying the injunction.

At chambers. Application by Alexander Meakim and others, commissioners of excise of the city of Yew York, for a mandamus to Leonard A. Giegerich, clerk of the city and county of Yew York.

Action by William Ziegler, a tax-payer of the city of Brooklyn, to enjoin Alfred C. Chapin, mayor, Theodore F. Jackson, comptroller, and Thomas B. Rutan, auditor, of said city, from purchasing the property and franchises of the Long Island Water Supply Company, on the ground that such purchase would be a waste of the public funds. Plaintiff now moves for the submission to a jury of 50 questions of fact, alleged to arise on the pleadings. See, also, 13 N. Y. Supp. 783.

Action by Edward L. Parker and others against Margaret Gertrude Allen and others for liberty to resign as trustees under a deed of trust executed by defendant Allen, for compensation for their services, and for the annulment of the deed.

<p>Appeal from trial term.</p> <p>Action by Joseph Kellow and others against William J. McCaw and Samuel Coombs. Plaintiffs appeal from a judgment for defendants entered on a verdict, and from an order denying a motion lor a new trial.</p>

<p>Infancy—Rescission of Contract—Damages.</p> <p>In an action to avoid, on the ground of plaintiff's infancy, an executory contract entered into by him, and to recover back money paid by him on account thereof, defendant cannot be allowed, as a counter-claim, damages from plaintiff's failure to carry out the contract.</p>

<p>Tbial—Exceptions to Chabge.</p> <p>On taking an exception to a charge that certain questions stated were the only questions for the jury to determine, counsel said he did not think there was any question for the jury, and he did not request that any other question be submitted to them. Held, that no error could be predicated on the exception.</p>

Action by Michael McGoldrick against Samuel Metcalf. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

<p>Appeal from trial term.</p> <p>Action by Susan Treanor against the Manhattan Railway Company. .Defendant appeals from a judgment for plaintiff entered on the verdict of a .jury.</p>

<p>1. Benevolent Societies—Payment of Dues.</p> <p>Under a by-law of a benevolent association, providing for payment of benefits in case of sickness, etc., to “every member in good standing on the books, ” a member cannot be deprived of such benefits because in arrear for dues, where the amount of the dues in arrear is less than the benefits to which he was entitled when they became due.</p> <p>3. Same—By-Laws—Validity.</p> <p>A by-law of a benevolent association providing that a member in arrears for three months’ dues “ shall not be entitled to benefits until three months after such arrears shall have been paid, ” is unreasonable and inoperative.</p>

Action by Cyrus Scofield against Samuel Kreiser. Defendant appeals from a judgment for plaintiff, entered on the verdict of a jury. Eor former report see 3 N. Y. Supp. 803.

<p>Appeal from trial term.</p> <p>Action by John L. Douglas against William H. Leonard. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury.</p>

Action by the De Witt Wire-Cloth Company against the New Jersey Wire-Cloth Company, for goods sold and delivered. Plaintiff demurs to defendant’s counter-claim.

Action by John O. Heald, as general assignee for benefit of creditors of Guy H. Gardner and David Daggett, composing the firm of G. H. Gardner & Co., against Robert W. Macgowan and Frank B. Van Siclen.

At chambers. Plaintiff, McSkimin, obtained a judgment against defendant, ICnowlton, and instituted supplementary proceedings against him. Plaintiff now moves that defendant be punished for contempt for an alleged violation of the injunction order served on him in such proceedings.

Action by Theodore F. Schumann and others against John H. Davis. Defendant appeals from an order of the general term of the city court affirming an order of the special term denying a motion by defendant to vacate an attachment against his property for insufficiency of the affidavits upon which the attachment was granted.

Action by Bruen against the Manhattan Railway Company and another for damages to plaintiff’s easements in a street in front of plaintiff’s premises, caused by the construction of defendants’ road therein. Plaintiff recovered six cents damages, and judgment for costs was rendered in defendants’ favor. Plaintiff now moves that the adjudication of costs in defendants’ favor be set aside, on the ground that the title to real property came in question at the trial.

Action by John Berenberg Gossler and others against Jacob H. Lau and Louis Lau, to recover an amount paid by the plaintiffs for the use and benefit of defendants. The defendants appeal from an interlocutory judgment sustaining a demurrer to a counter-claim set up by the defendants.

Action by John Berenberg Gossler and others against Jacob H. Lau andi Louis Lau, to recover an amount paid by the plaintiffs for the use and benefit of defendants. The defendants appeal from an order striking out portions of their answer.

Action by Vincent A. Witcher against the Tribune Association. Defendant appeals from an order denying its motion for an order that the plaintiff appear and submit to an examination before trial, and that, in the event of plaintiff’s failure to appear for ¿xamination as directed, the trial of the action be stayed.

Action by William Fleron against Wilton Lackaye to enjoin defendant from using plaintiff’s dramatization while acting the part of Pierre Clemenceau in the “Clemenceau Case.” Plaintiff had translated Dumas’ novel of that title, and subsequently dramatized .it, introducing original features in the play, and freely rendering and'paraphrasing the novel. Defendant, while in plaintiff’s employ, memorized the lines of the character Pierre Clemenceau.

Action by Thomas F. Oakes against Edward F. De Lancey. The defendant, owner of certain lands known as “Yergemere,” at De Lancey’s Heck, in the town of Mamaroneck, Westchester county, offered them for sale at auction June 4, 1890. The posters and advertisements represented the place as containing 22.57 acres. The plaintiff was a bidder at the sale, and the property was sold to him at $3,125 per acre, or $70,531.25 for the 22.57 acres!

Action by Rosa Herzog against the New York Elevated Railroad Company and the Manhattan Railway Company, for an injunction to restrain defendants in the construction and operation of their elevated railroad in Third avenue in the city of New York, from trespassing upon or appropriating certain easements in that avenue appurtenant to land of plaintiff abutting •thereon. . ■

Action by Alfred Blewitt against William H. Boorum and George L. Pease upon a contract. The plaintiff appeals from a judgment dismissing the complaint after trial.

, Appeal from special term. Action by Henry W. Droge against Eugene H. Cree to recover a deposit made by the plaintiff on a contract for the purchase of real estate. There was a judgment for the plaintiff, and the defendant appeals.

Action by William Butler Duncan, Jr., against the China Mutual Insurance Company upon a policy of insurance issued by the defendant July 28, 1888, upon the steam-ship Samana, which then belonged to the Samana Steam-Ship Company. The plaintiff owned all the stock of this company, except a nominal amount of $25, which was held by five persons to satisfy some requirement of the English law. He was the' managing owner, and, for practical purposes, the company.

Action by Pliebe Pearsall against Jacob Hirsh, Alois Gutwillig, and James1 F. Ferguson. The plaintiff appeals from an order sustaining a demurrer to the complaint, and from an interlocutory judgment, entered thereon.

special term. Action by Benjamin F. Batchelder against the Council Grove Water Company.

Action by Annie Barrett, an infant, by guardian ad litem, against George Waldo Smith and John S. Sills to recover damages for. injuries caused by the .alleged negligence of defendants’ servant. The plaintiff appeals from a judgment dismissing the complaint.'

Action by George Langdon as a judgment creditor of the New York Book Company for a sequestration of the property of the company. George H. Stonebridge, Jr., was appointed in the action receiver of the property of the company, and, having been sued, without leave of court, by John B. Alden for acts done as such receiver, applied for the punishment of Alden for contempt. Alden appeals from an order adjudging him guilty of contempt.

<p>Appeal from jury term.</p> <p>Action by the Fifth Avenue Bank of New York against Samuel W. Parker. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury.</p>

Action by Frederick Storck against the Metropolitan Elevated Railway Company and another. Defendants appeal from a judgment entered upon findings and conclusions at special term.

Action by Aaron Altmayer against the Metropolitan Elevated Railway Company and another. Defendants appeal from a judgment entered on findings and conclusions made at special term.

<p>Reverence—Accounting.</p> <p>Upon the question whether an order of reference should be made under Code Civil Proo. N. Y. § 1018, providing for references in cases where the trial will require the examination of long accounts, an objection to the reference upon the ground that the account of defendant, if long, was such as would be taken under a counter-claim, was properly disregarded when the answer pleaded as a defense what was pleaded in the counter-claim also.</p>

Action by Julius Bobertson against the National Steam-Ship Company, Limited. On June 8, 1889, F. F. Munster delivered to the defendant, at Havre, France, 45 bales of goat skins, to be transported to New York city.

Action by Mary E. Bradley against Isaac Walker. Plaintiff appeals from an order made at special term, February 9, 1891, vacating an ex parte injunction theretofore obtained, forbidding the violation of a covenant, and denying an application to continue said injunction pendente lite. The covenant was signed by the defendant’s grantors and others, and they thereby agreed to reserve an open space in front of certain lots, and not build thereon.

Action by Benjamin Fitch against Paul .J. Armour upon the covenants of a written lease. Plaintiff appeals from a judgment entered on verdict for defendant, and from order denying plaintiff’s motion for new trial made upon the minutes.

<p>Appeal from special term, New York county.</p> <p>Action by Frederick B. Gurney against the Grand Trunk Railway Company of Canada. Plaintiff appeals from an interlocutory judgment sustaining a demurrer to the complaint.</p>

Action by Edward L. Merrifield against Ezekiel Y. Bell, assignee in bankruptcy of Henry Lawrence & Sons, to vacate and set aside a judgment recovered against him as a special partner of the firm of Merrifield & McDowell. The plaintiff appeals from a judgment for the defendant rendered by the court without a jury.

<p>Action by the Schillinger Fire-Proof Cement & Asphalt Company against William H. Arnott and others, to foreclose a mechanic’s lien. Defendant demurs to the complaint.</p>

Action by Patrick Martin against Valentine Cook and another to recover damages for injuries alleged to have been caused by defendants’ negligence. Exceptions taken by the plaintiff at the trial were ordered to be heard in the first instance at the general term, and plaintiff appeals from an order dismissing his complaint on the merits.

Action by Daniel W. Tallmadge against the Press Publishing Company to recover damages for a libelous publication. There1 was a judgment for the plaintiff, and the defendant appeals. For former reports, see 7 H. Y. Supp. 895; 10 H. Y. Supp. 713.

<p>Appeal from judgment on report of referee.</p> <p>Action by John C. Orr and others against St. Anthony’s Roman Catholic Church on negotiable promissory notes. The defendant appeals from a judgment entered on the report of a referee.</p>

Action by the people of the state of New York by the direction of Matthew Kennedy, game and fish protector, against Beuben Tanner, to recover a penalty for violation of the fish laws in taking bass and suckers from the waters of Wappinger’s creek, in the county of Dutchess, in a net, contrary to Laws H. Y. 1879, c. 5.34, §. 23, as amended by Laws H. Y. 1884, e. 127, and for illegally having in his possession a net for taking such Ash.

On rehearing. For opinion on appeal, see 12 FT. Y. Supp. 122. , Petition by Mary A. Mahoney for probate of the last will and testamen t o Peter P. Mahoney. The probate was resisted by Mary A. Prendergast and Lucie E. Cahill, and the surrogate refused to admit the will to probate. Petitioner appealed, and the judgment of the surrogate was reversed. Upon a motion for a reargument the court rendered the opinion below.

Action by Erank W. Ehrman, an infant, against the Brooklyn City Railroad Company, to recover damages for personal injuries sustained by the plaintiff. There was a judgment for the plaintiff, and the defendant appeals from an order denying a motion for a new trial upon the minutes of the court.

Action by Stewart H. Pink against William S. Church, administrator of Henry H. Stewart, deceased, to recover ten $1,000 bonds of the Union Pacific Railroad Company, which the plaintiff alleged were given to him by said intestate, but taken possession of by the defendant, as a part of said intestate’s éstate.

<p>1. Appeal—Weight oe Evidence.</p> <p>Plaintiff, a boy about nine years of age, was injured by coming in contact with defendant’s mowing-machine. In an action therefor, he testified that he received his injuries while handing a whip to defendant, at the latter’s request, while defendant was seated on the machine, and it was in motion. Defendant testified that he had stopped the team, and was some distance behind the machine, when he heard the boy make a noise, and then saw that he had been injured. There was other testimony on each side, from which inferences might be drawn favorable to each party. Held, that a finding for plaintiff, on trial before a judge without a jury, would be sustained on appeal.</p> <p>2. Contributory Negligence—Children.</p> <p>The degree of care required of a child, the omission of which will constitute contributory negligence on his part, is only that which could reasonably be expected from a child of his age.</p>

<p>Fixtures—Right to Remove Buildings.</p> <p>Defendants conveyed land on which there was a frame barn so built that it could be removed without injury to the soil. There was no reservation of the barn in the deed, but it was shown by paroi evidence that, after the conveyance, the grantee told defendants it was theirs, and that they took and retained possession of it, and that plaintiff and all mesne grantees of the land had notice of their claim. Held, that the barn remained personal property, and defendants had the right to remove it as against plaintiff. Dwight, P. j., dissenting.</p>

Appeals from circuit court, Dutchess county. Action by William I. Thorn against Oliver T. Beard, for professional services rendered by plaintiff as an attorney. At the trial it appeared that part of such services were performed by plaintiff as guardian ad litem for minor children of defendant, in certain proceedings in the surrogate’s court, in which defendant’s interest was not identical with the interests of his children.

A receiver of the Consumers’ Coal Company was appointed in proceedings instituted against it by plaintiff, Sebenek. George W. McLean, receiver of taxes for New York city, now makes application for an order directing said receiver to pay the personal taxes assessed against the corporation.

Mortgage foreclosure by the C. B. Keogh Manufacturing Company against John Whiston and others. Plaintiff moves that a receiver of the mortgaged property be appointed.

Action by William H. Boggs against Theodore S. Bird, James D. Leary, and Susan J. Boggs, individually and as administratrix of William Boggs, deceased. Defendants Bird and Leary appeal from an interlocutory judgment for plaintiff entered on the report of a referee.

Action by Charles E. Hubbell, as receiver oE the Syracuse Iron-Works, against the Merchants’ national Bank and others, for an adjudication as to the validity of certain bonds issued by the Syracuse Iron-Works, and secured by a mortgage on its property.

After the award to the estate of Ann Bolton various claims were presented against the amount so awarded, The matter was referred, and on the filing of the referee’s report the various claimants move for an allowance of their claims.

Indictment against Henry A. Cassidy for arson in the first degree, in setting fire in the night-time to a dwelling-house of the New York Catholic Protectory, used as a lodging place for their employes, and so occupied on the night of the fire. At the trial, the prosecution was permitted to show that, at the time of the fire, other buildings adjoining that set on fire, and with it constituting a single structure, were likewise occupied by human beings.

<p>Appeal from special term, Westchester county.</p> <p>Action by Henry C. Griftin against John A. Todd to abate and remove certain obstructions from plaintiff’s real estate, and to restrain the obstruction of the'1 same. There was a judgment for defendant, and plaintiff appeals.</p>

<p>False Imprisonment—Nominal Damages—New Trial.</p> <p>In an action for false imprisonment, it appeared that plaintiff was arrested and detained only long enough to walk across the street. Held, that a verdict for six cents damages should not be set aside as inadequate, and a new trial granted.</p>

Action by William Hughes, as receiver of Alexander C. McKenzie, a judgment debtor, against said Alexander 0. McKenzie and others, to restrain defendant from disposing of a fund until said McKenzie's interest therein could be ascertained and subjected to the judgment.

Action by Rachel Weinberg and Isidor Weinberg against Philip Weinberg and Louis Clark, Jr. Defendants’ motion that plaintiffs be required to elect whether they will try their claim in the action brought by them, or in an action brought by defendants against plaintiffs, in which plaintiffs set up their claim as a counter-claim, was denied, and defendants appeal.

Petition by Sarah Kerwin, on behalf of William Kerwin and others, infants, for an order of the surrogate directing Cornelius Kerwin, guardian o£ the property of said infants, to pay the claim of petitioner for the support and care of the infants under an agreement with the guardian of their persons. The petitioner appeals from an order dismissing her petition.

Action by Irvine A. Hodge and Lyman E. Miner against John H. Drake and others, to recover upon a contract and for money had and received by the defendants to the plaintiffs’ use. The defendants appeal from an interlocutory judgment overruling a demurrer to the complaint, and from an order directing entry of judgment thereon.

<p>At chambers. Laws FT. Y. 1875, c. 542, § 1, provides as follows: “All rents reserved on any lease granted after the passing of this act, and all annuities, dividends, and other payments of every description, made payable or becoming due at fixed periods under any instrument executed after the passing of this act, or (being a last will and testament) that shall take effect after the passing of this act, shall be apportioned so that on the death of any person interested in any such rents, annuities, dividends, or other payments as aforesaid, or in the estate or fund from or in respect to which the same shall issue or be derived, or on the determination by any other means whatever of the interest of any such person, he or she, and his or her executors, administrators, or assigns, shall be entitled to a proportion of such rents, annuities, dividends, and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof, respectively, (as the case may be,) including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions on account of charges on such rents, annuities, dividends, and other payments being made.”</p>

Action by Timothy Derrick and Catherine M. Breen, administrators of Michael Morriss, deceased, against Mary Louisa Emmens and the.Seamen’s Bank for Savings. Defendant Emmens appeals from a judgment for plaintiffs, rendered on trial by the court without a jury.

<p>1. Benevolent Societies—Rights of Members—Revocation of Privileges.</p> <p>A member of a brick-layers’ union brought an action against the union asking that a “strike” ordered by it be declared irregular and void; that fines imposed on him b) declared null and void; and that he be reinstated as a member in the union, and his “ pass-card, ” showing him to be a member in good standing, of which he had been deprived, be given to him. It appeared that the fines had been imposed for violations of the rules of the union by him in working for an employer who did not pay his men weekly, and in working with non-union men; and that he was in arrears for the fines for more than the period after which a member so in default was prohibited by the by-laws from working. Meld, that it was immaterial whether the “strike” was properly ordered against his employer, and that his card was properly taken away.</p> <p>2. Same—Remedies.</p> <p>A member of a society cannot maintain an action to have fines imposed on him by a committee of the society declared void, because imposed without a trial, until he has exhausted his remedy by appeal in the society itself.</p>

Action by Lester A. Lewis against Ervin G. Gollner and Ada F. M. Gollner. Plaintiff appeals from a judgment for defendants, entered on trial by the court without a jury.

<p>Appeal—Weight of Evidence.</p> <p>Where defendant’s motion to dismiss the complaint is denied, and defendant does not request a submission of the facts to the jury, a verdict directed for plaintiff will not be disturbed on appeal, if there is any evidence to sustain it.</p>

<p>Writs—Defective Service of Process.</p> <p>In an action against a railroad company to recover the penalty prescribed by Laws N. Y. 1857, c. 185, for extortion, an objection that the summons was not served by the sheriff, as required by Code Civil Proc. N. Y. § 1895, in actions for penalties, can be taken only by motion before answer.</p>

<p>Appeal from trial term.</p> <p>Action by Joseph Wiener against Dietrich Hammell and others. Judgment was entered on a verdict for plaintiff, and defendants appeal.</p>

<p>Landlord and Tenant—Holding Over.</p> <p>Plaintiff leased a room to defendant for a term ending at noon, February 2,1891. In December preceding plaintiff refused to renew the lease, and advertised the room for rent. Defendant began to remove his goods at S’clook on the morning of February 2d, and continued without intermission ■ until midnight, having removed all the goods except a safe and desk, which he removed on the following morning. Held not such a holding over as would render defendant liable for the month’s rent.</p>

Action by James A. Flack, late sheriff, etc., against Samuel Thaxter and ■others. Judgment was entered on a verdict for plaintiff, and defendants appeal.

<p>Action by Horace M. Williams and others against the Deutscher Verein and another to foreclose a mechanic’s lien.</p>

Action by the Richard Thompson Company, Limited, against Augustus T. Brook, to recover a balance of money advanced to defendant for plaintiff’s use. The defense was a counter-claim for balance of salary due. There was a judgment for the defendant, and the plaintiff appeals.

Action by John Preissenger against Phebe E. Sharp and Ferdinand G. Soper and others upon a joint liability under contract. Code Civil Proc.

Action by Daniel Mahony against Louis Ungrich and Louis K. Ungrich and another to recover $675 for services rendered to the defendants in procuring a purchaser for their property on the north-west corner of Ninth avenue and Seventeenth street, at $67,500. The plaintiff is not a broker, and relied upon a special agreement to pay him 1 per cent, commission.

Action by Joseph B. Pennell and Thomas O’Hern against the mayor, aider-men, and commonalty of the city of New York. Defendants appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying their motion for a new trial.

Action by Henry Bohlen against the Metropolitan Elevated Railway Company and the Manhattan Bail way Company to restrain the continuance of the defendants’ elevated road in front of the plaintiff’s premises on Second avenue, in New York.

Exceptions from jury term. Action by Frank Leslie against George F. Bassett and another, on a bill of ■exchange accepted by the defendants, and transferred to the plaintiff before maturity.

Action by George P. Delisser against the New York, New Haven & Hartford Railroad Company. Plaintiff appeals from an order setting aside the summons in the action and all proceedings therein.

<p>Appeal from special term.</p> <p>Action by Michael Bergman against the Manhattan Railway Company and the Metropolitan Bail way Company, to enjoin the continuance of defendants’ elevated railroad in front of plaintiff’s-premises on Sixth avenue in the city of New York. Defendants appeal from a judgment for plaintiff, entered on trial by the court without a jury, which restrained defendants from operating their road, unless within a specified time they should pay plaintiff the sum of $5,500, and obtain from him a grant and release of his easement in the street.</p>

<p>Contest of Will—Right of appeal</p> <p>In an action brought by executors to determine whether a bequest given by the will in trust for a daughter of testator had been revoked by a contest of the probate made on her behalf the widow of testator, who became entitled to such bequest if it was so revoked, declined to become a plaintiff, and was made a defendant. Field, that under Code Civil Proc. N. Y. § 1294, giving a right of appeal to “a party aggrieved, ” the executors might appeal from a judgment that the bequest was not revoked.</p>

Action by Elizabeth Fletcher, as administratrix, etc., of Charles H. Fletcher, deceased, against Oliver P. Hurd, individually and as executor and trustee of James H. Dailey, deceased, to compel the defendant to account and to pay to the plaintiff one-half of the amount covered by the residuary bequest in the will of James H. Dailey.

At chambers. Action by Knauth against Wertheim. Defendant’s answer contained a counter-claim. Plaintiff obtained an order requiring defendant to furnish a bill of particulars within a specified time, with which order defendant was not able to comply. He now moves that he be permitted to amend his answer by striking out the counter-claim, as by the terms of the order he is precluded from giving evidence to sustain it at the trial.

<p>At chambers. Action by Frank Boss, as ancillary administrator, etc., of James G. Boss, deceased, against Wallace P. Willett and others, to charge defendants with their share of the loss resulting from a joint purchase and sale of a cargo of sugar under an agreement entered into between themselves and plaintiff’s intestate. The third paragraph of plaintiff’s first cause of action alleged that “in or about the month of April, 1880, the said James G-Boss and the defendants agreed to purchase jointly a cargo of sugar, to be shipped from the island of Java on the bark Cornells Smit to some port in the United States, and there sold; and they further agreed that the profit made or the loss incurred from the said purchase and sale should be divided or borne in the proportion of three-fourths by the said James G. Boss, and one-fourth by the defendants. ” • Defendants obtained an order that this paragraph of the complaint be made more definite and certain. Plaintiff accordingly amended his complaint, but defendants declined to accept it. Plaintiff now-moves that they be compelled to do so. For former reports, see 11 H. Y. Supp. 621, 13 N. Y. Supp. 102, 103.</p>

Action by Mary A. P. Tucker (Preble Tucker, assignee) against Cornelia Gilman. The said Preble Tucker, a person beneficially interested in the suit as assignee of the plaintiff, appeals from an order adjudging him in contempt for his failure to pay the defendant’s costs as directed by the court.

Action by Anna B. Haulenbeek and another, as executors of James H. White, deceased, against Daniel MeGibbon, upon a note dated September 8, 1884, for $2,000, made by Hat han C. Wood, and indorsed, as it is alleged, by the defendant, and is payable at Delaware County Bank one year after date. The answer denies the indorsement and alleges that it is a forgery. The case was tried at the Delaware circuit, February, 1887, and a verdict rendered for the defendant.

Action by William H. Everett against Charles E. Jones and Catharine Hunter. From an interlocutory judgment directing the reformation of a partnership agreement between plaintiff and defendants, and the dissolution of the partnership and an accounting, plaintiff appeals, and also moves for a new1 trial, made under section 1001, Code Civil Proc.

Action by Henry B. Walker and others, executors, etc., of Schuyler B. Steers, deceased, against Delos Steers, Frederick A. Saville, and… Held: owned, and borne in proportion of two-thirds to Steers and one-third to Saville, each agreeing to devote their time and energies to the business as far as they were able, and share and divide the profits and losses thereof as follows: for the first two years in the proportion of two-thirds to Steers and one-third to Saville, and…

Action by the Mutual Life Insurance Company of New York against Ann Suiter and Mary A. Suiter and Ann Suiter, her daughters, impleaded with Mathias Suiter, Creseentia Suiter, George Suiter, and others, to foreclose a mortgage executed’ by Mathias Suiter and wife and George Suiter on a farm of about 85 acres of land, situated in the town of Manlius, Onondaga county, N. Y. The premises in question formerly belonged to Mathias Suiter, Sr., who before the year 1876 died…

Action by James Powers, administrator, etc., against the New York Central & Hudson River Railroad Company, to recover damages for the death of plaintiffs intestate through the alleged negligence of the defendant. The plaintiff appeals from a judgment of nonsuit.

Action by Clara B. Schumaker against Joshua Mather and Charles W. Mather, defendants. Held: as to all of the allegations of the complaint here as to which proof has been made, except one, that they are not allegations upon which fraud can be based at all, and that one is the allegation—I do not give the precise language, but simply the idea—that the Borne farm did keep and maintain from its products 100 head of cattle and…

<p>Judgment—Res Judicata.</p> <p>In an action to charge defendant as trustee for plaintiff in land alleged to have been purchased by defendant with money stolen from plaintiff, a judgment in defendant’s favor, based on a finding that she had not stolen plaintiff’s money, is a bar to a subsequent action in which plaintiff seeks precisely the same relief as to another piece of land, alleged to have been purchased by defendant with the pro ceeds of the same theft.</p>

Action by William A. Sweet, as a resident and tax-payer of the city of Syracuse, to have declared unconstitutional, inoperative, and void' chapter 291 of the Laws of 1889, entitled “An act to establish and maintain a water department in and for the city of Syracuse, ” and also chapter 314 of the Laws of 1890, which amended section 18 of the act of 1889; and to restrain the defendants from doing any act in furtherance or consummation of the scheme or plan of those acts.

Action by the Ball Electric Light Company against the Sanderson Bros. Steel Company, to recover the price of an electric light plant put in the defendant’s works by the plaintiff. In defense the defendant alleged that the plant failed to operate successfully for 90 days, and to light its works to its satisfaction, which were conditions precedent to plaintiff’s right to receive payment. Plaintiff was nonsuited, and appeals.

Action by Emma P. Roberts against the Johnstown Bank, Albert E. Blunck, and others. The plaintiff appeals from an order dismissing her complaint, and from an order denying a motion for -a new trial on the ground of newly-discovered evidence.

<p>Counter-Claim—Trial of Issues.</p> <p>Under Code Civil Proc. N. Y. § 974, which provides that the trial of an issue raised by a counter-claim, wherein defendant demands affirmative relief, shall be-in the same mode as if it arose in an action brought by defendant, defendant, im an action on an insurance policy, is entitled to have an equitable issue raised by-his counter-claim, in which he asks for a reformation of the policy, tried at the-special term, before the trial at the circuit of the legal issues raised by the complaint and answer.</p>

Action by the people of the state of New York against E. Remington & Sons. Application by James A. Whitfield against Albert H. Russell and Addison Brill, receivers, et al., for an order directing said receivers to pay petitioner the sum of $183.31, alleged to be unlawfully withheld from him by said receivers. Petitioner appeals from an order denying said application.

Action by Louisa Williams and others against Samuel D. Folsom and others, Defendants now move that plaintiff be compelled'to furnish them with a bill of particulars. For former reports, see 3 Y. Y. Supp. 681; 5 Y. Y, Supp. 211; 7 Y. Y Supp. 568; 10 Y. Y. Supp. 895.

At chambers. This action was brought by Rebecca J. Schenck against Hamilton Rickaby, executor, etc., of Sarah B. Philips, deceased, for services rendered deceased. The complaint alleged that plaintiff had duly sei-ved a verified claim on the executor. Defendant now moves that this allegation be stricken out. Code Civil Proc. 2ST.Y. §§ 1835, 1836, provides as follows: “Sec. 1835.

At chambers. Fannie Zimmerman obtained a divorce from her husband, Samuel Zimmerman. On her husband’s failure to pay alimony and counsel fees she obtained an order to show cause why he should not be punished therefor.

Proceeding by Daniel R. Davis and Philip H. Jones, as administrators with the will annexed of Elizabeth Jayne, deceased, to compel Benjamin S. Mills, as executor of the will of Clarissa Darling, deceased, to pay a judgment for $426.11 for costs, rendered against said Mills in an action brought by him, as executor, against petitioners as administrators to recover on a note held by Clarissa Darling against Elizabeth Jayne.

Actions by Thomas Kitson—one against Sarah Frances Blake, and the other against Frederick D. Blake and Charles Waterman—on promissory notes executed by the defendants. The defendants in each case appeal from an order denying their motions to set aside the inquests, and judgments therein taken by default. The principal ground of the motions in the court jb’elow was the alleged inability of the defendants’ attorney to be present on .the day when the verdict was taken.

Action by the people of the state of New York at the relation of Thomas ¡McCormick against Patrick J. Weldon and others, superintendents of the .poor, to recover an alleged balance of salary due relator accruing after his re-moval from .office.

Action by William Hicoll, a resident tax-payer of the town of Islip, against Charles G. Sands and others, under the “ Tilden Act, ” to set aside a contract made between the authorities of said town and the Great South Bay Water Company, and to enjoin the supervisors of Suffolk county from levying a tax for the purpose of enabling said town to fulfill its obligations under said contract, upon the ground (1) that said contract did not provide for the delivery of water by said…

Application by James Brown for a writ of mandamus against James 0. Duane, president of the board of aqueduct commissioners, and others, members ■of said board, to compel them to give him preference as an honorably discharged Union soldier in respect to certain appointments under the control of said board. The petitioner appeals from' an order denying his application for' a mandamus.

Judicial settlement of the accounts of Fielding L. Whittemore, as executor and trustee of John M. Whittemore, deceased.

Petition by Charles W. Denike that Robert C. Reeves, executor of Abraham Denike, deceased,'be required to file an account of his proceedings as stich executor. The executor appeals from an order requiring him to file such account. Code Civil Proc.

Certiorari by Galusha B. Balch to review the action of the mayor and com' mon council’of the city of Yonkers in refusing to appoint relator, a Union soldier, health officer of said city. The writ was dismissed, and relator appeals. Laws N. Y. 1887, c. 464, § 1 provides: “Section 1.

Action by Henry Schwenck against William Widemeyer on an account. Prom a judgment in favor of the plaintiff, and from an order denying his motion for a new trial, defendant appeals.

<p>Appeal from circuit court. Kings county.</p> <p>Action by John J. Mulligan against the New York & Rockaway Beach Railroad Company and another for false imprisonment. Judgment was entered on a verdict for plaintiff, and defendant appeals.</p>

<p>Kescission of Contracts—Mutual Mistake.</p> <p>Plaintiff purchased land from defendant for agricultural purposes by a contract which described it as adjoining certain other lands, and containing about “ 60 acres, more or less, ” and referred to the sheriff’s deed of the land, under which defendant claimed, which contained the same description and recital-as to quantity. Defendant said that the land contained about 67 acres. After the execution of the contract plaintiff had the land surveyed, and found that it contained 48% acres. Held, that plaintiff would be relieved from his purchase on the ground of mutual mistake as to quantity, there being no evidence of fraud on the part of defendant.</p>

<p>Intoxicating Liquors—Civil Damage.</p> <p>In an action under Laws N. Y. 1873, c. 646, (Civil Damage Act,) to recover for the suicide of plaintiff’s father, committed while intoxicated, it appeared that decedent went home intoxicated at 11 o’clock at night, and was found dead the next morning. He had been at defendant’s saloon aportionof theevening, having leftatlOo’clock, after drinking two glasses of “spenk beer, ” in a perfectly sober condition. There was evidence that “spenk beer” would not intoxicate. Held, that the complaint was properly dismissed.</p>

Proceedings for the probate of the will of Ann Forbes, deceased. The will was admitted to probate, and contestant appeals.

Action by Gideon F. Smith, as assignee for the benefit of creditors of Isaac Mosbacher and Samuel W. Newey, against Frank Smith. There was a judgment for plaintiff, and defendant appeals.

<p>Injunction—Multiplicity of Suits.</p> <p>Where a suit is pending by a judgment creditor of an insolvent domestic corporation to set aside mortgages of its assets, and another suit is brought for the same purpose by the receiver of such corporation, an injunction will be granted upon the application of such receiver to stay the proceedings of the judgment creditor; in order to prevent a multiplicity of suits for the determination of the same matters; the receiver representing the interests of all creditors of the insolvent.</p>

Action by Hannah Bennett agamst the president and trustees of the village of Sing Sing, to recover damages for personal injuries caused by the alleged negligence of the defendant. .From a judgment entered upon a verdict for the plaintiff, and from an order denying a motion for a new trial on the minutes of the court, the defendant appeals.

Action by Lewis R. Stegman against Henry S. Hollingsworth and others upon a paper executed by a deputy-sheriff and his sureties to indemnify and! save harmless the plaintiff, as sheriff, from any loss he might sustain bv default of said deputy. The complaint assigned as a breach of the condition contained in the instrument that the deputy-sheriff had not paid over a surplus on á foreclosure sale of $3,100 to the sheriff, nor into court, as the law directs.

<p>Wills—Testamentary Capacity—Use op Intoxicants.</p> <p>Probate of a will was sought to be revoked on the ground that testator was not free and capable at the time of the execution thereof. There was no evidence to sustain the application except that he was addicted to the use of intoxicating liquors to an extent that produced feebleness of body. There was affirmative evidence that his mind was not affected by his habits, and that he was sober when the will was executed. Meld, that the application was properly denied. Affirming 12 N. Y. Supp. 115.</p>

Action by the Ackerly & Gerard Company against Charles Partz. The defendant appeals from an order of the county court denying his motion to ■ dismiss supplementary proceedings begun before that court in aid of an execution issued against him from the supreme court. Code Civil Proc.

<p>Appeal from judgment on report of referee.</p> <p>Action by AVinfield S. Velsor against James AV. Eaton. There was a judgment for plaintiff, and defendant appeals.</p>

Action by Amanda Palmeri against the Manhattan Elevated Railway Company. From a judgment entered on a verdict for the plaintiff, and from an order denying defendant’s motion for a new trial, defendant appears. •

Action by David Miller against Benjamin Wright and others for partition. There was a judgment for plaintiff, and defendant Wright appeals.

Petition to widen Washington street in the city of Poughkeepsie. Appeal by a property owner from an award made to him by the commissioners.

Action by Bridget Myers against David Hunt, executor of Harrison Hunt, deceased. The defendant appeals from a j udgment entered by the surrogate of Westchester county on the report of a referee. Code Civil Proc.

<p>Sale—Payment and Delivery.</p> <p>Plaintiff sold to defendant a lumber-yard for $2,000 casb and the balance in notes, ” “ an inventory of stock to be taken at once, satisfactory to both parties; ” defendant “to take control of the business at once. ” While the inventory was being taken, defendant handed plaintiff’s son a check for $2,000, and received the keys of the lumber-yard. A few days afterwards plaintiff returned the check to defendant, stating that he must not take possession until the inventory was finished and notes given. The appraisers failed to complete the inventory. Held, that the contract required payment in cash and notes on delivery. .</p>

Action by George E. Russell and Amos Manseau against Frederick B. Bardes for work done and material furnished by plaintiffs, as copartners, in repairing defendant’s premises. Plaintiff Russell, a carpenter and builder, being indebted to defendant, a butcher and grocer, to the amount of $174 for supplies furnished to Russell’s family, agreed to make certain repairs on defendant’s stable in payment of such amount and such future advances as defendant might make.

<p>Highways—Repairs—Application op Moneys.</p> <p>Money raised at a town meeting to work a recently laid out town road was expended by the highway commissioner in necessary general repairs of the highways in the town, and the expenditure was credited and allowed. Afterwards the village of M. was incorporated, and embraced all the road in question within its limits. Held, that the commissioner would not be required to expend the sum so raised on the road in question.</p>

Two actions by Samuel Rosenberg against the Staten Island Railway Company, one for injuries to his person, and the other for injuries to his property, caused by a collision with defendant’s cars. Defendant moves to consolidate the actions.

Action of Minna Enoch against Louis Funke, Jr. Plaintiff appeals from an order denying her motion for a discovery and inspection of defendant’s books and papers.

Action by Samuel W. Regester and others against the Edward Barr Company, Limited. Defendant appeals from a judgment for plaintiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial.

Petition of creditors of the Vertical Tube Boiler Company for the modification of an order of injunction against creditors made on the appointment of a receiver of the company in proceedings for its voluntary dissolution. The creditors appeal from an order denying their petition. .

Action by Warren N. Fitchett against Thomas Nanary for the conversion of a bay horse, buggy, and harness belonging to the plaintiff.

At chambers. Motion by plaintiff, James H. Brady, for leave to amend his reply, by setting up a counter-claim to a counter-claim pleaded by defendant, Catharine Nally. The motion was not made until after the final submission of the cause to a referee, and a decision by him.

Application by Charles Sargent for a mandamus to compel John J. Gorman, sheriff of the city and county of New York, to reinstate or reappoint him to a position in the sheriff’s office, from which he had been removed. He appeals from an order denying his application.

Action by Ludlow W. Valentine, an infant, by George W. Bergen, his guardian ad litem, against Matilda Bichardt. The complaint was dismissed, and plaintiff appeals. For former reports, see 12 X. Y. Supp. 196, 13 X. Y. íáupp. 417.

Indictment against John O’Connell for assault in the first degree. Defend-, ant appeals from a judgment convicting him, on his plea of guilty, of an attempt to commit assault in the first degree.

Action by Charles MacLaren against Thomas Stokes and James Stokes. Plaintiff and Thomas Stokes had formerly been partners in business, and as such they had employed James Stokes as a salesman under an agreement that his compensation should be one-half of the profits accruing to the firm from all sales made by him, subject to one-half of the losses. Plaintiff now sues to recover his share of such losses from defendant James Stokes.

Application by Thomas Cecil for mandamus to the Bellevue Hospital Medical College to compel respondent to admit the plaintiff, a student therein, to final examination, and, if he pass a suitable examination, to give him the degree of doctor of medicine, which said college had the power to give. The application was denied and relator appeals.

Action by Charles S. McCulloli, as receiver of the Yon-Magnetic Watch Company of America, against the Paillard Yon-Magnetic Watch Company. Defendant’s motion to set aside the' service of summons and complaint, and to vacate the judgment, was denied, and defendant appeals.

Abraham Suydam was indicted for larceny as follows: “The said Abraham Suydam, late of the city of New York, in the county of New York aforesaid, on the 12th day of July, in the year of our Lord one thousand eight hundred and eighty-nine, at the city and county aforesaid, with force and arms, with intent to deprive and defraud Michael Fay and William Sta-com of the proper moneys, goods, chattels, and personal property hereinafter mentioned, and of the use and benefit thereof,…

Application by Janet ICingsland, administratrix de bonis non of Henry Foster Topping, deceased, for leave to sell .land for payment of decedent’s debts. The surrogate granted the application, and the grantee of decedent’s sole heir appeals. For former report, see 9 N. Y. Supp. 447.

<p>Appeal from circuit court, New York county.</p> <p>Action by John H. Dwight and James F. Gillette against Howard G. Badgley. Defendant appeals from a judgment for plaintiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial.</p>

Action by William S. Williams against the United States Trust Company of New York. Plaintiff appeals from a judgment for defendant entered on the dismissal of the complaint at the trial, and on a verdict for defendant directed by the court on defendant’s counter-claim.

<p>Appeal from special term, New York county.</p> <p>Action by Julius Hewwitter against Maurice Mansell and Andrew Blume. An attachment theretofore granted was vacated, and plaintiff appeals.</p>

Action by Daniel B. Childs, receiver, etc., against Edward T. Latham and others. There was a judgment awarding priority of lien to defendant Latham, and defendants Wernberg and others appeal. For former report, see 9 N. Y. Supp. 619.

Petition by George W. McLean, receiver of taxes, to enforce the payment of a personal property tax imposed upon the Couper Milling Company.

Action by Paul Morse Richards against Charles H. Ludington. Plaintiff having, after the action was brought, made an assignment for benefit of his creditors to Edgar A. Tredwell, defendant moved that the assignee be substituted as plaintiff in the action. The motion was denied, but an order was made thereon that the assignee be made a party defendant, and that the summons and complaint and all proceedings in the action be amended accordingly.

<p>Appeal from circuit court, New York county.</p> <p>Action by Caroline J. Cammerer against Clemens Muller to recover damages for an alleged breach of contract to marry. From a judgment entered on verdict of a jury, and from an order denying his motion for a new trial, defendant appeals.</p>

Action by Jacob D. Nordlinger and others against Hollins McKim and others, to recover moneys alleged to have been received by defendants on checks owned by plaintiffs, and collected by means of forged indorsements of their names thereon by one Long, their clerk. Plaintiffs appeal from an order denying their motion to strike out certain parts of defendants’ answer as being sham, irrelevant, redundant, and scandalous.

Action by George F. Vietor and another against William M. Halstead and another. Plaintiffs appeal from a judgment awarding an additional allowance'to defendants, under Code Civil Proc. H.-Y. § 3258, which provides» that, in a difficult and extraordinary case, when a defense has been interposed, the court may, in its discretion, award to any party afurther sum, not exceeding 5.per centum upon the sum recovered or claimed or the subject-matter involved.

Action by Frederick M. Hill against the Knickerbocker Electric Light & Power Company. Plaintiff obtained an attachment against defendant’s property, which defendant moved to vacate for insufficiency of the papers on which it was granted. The motion was denied, and defendant appeals.

Action by James B. Titman, administrator, and others, against the mayor of the city of New York and other defendants. From an order denying a motion to strike the item of mileage from the clerk’s taxation of costs defendants appeal. Code Civil Proc.

<p>Appeal from court of general sessions, New York county.</p> <p>James Noonan was convicted of burglary in the second degree, and he now appeals.</p>

Action of ejectment by Charles G-. Landon and another, executors of Benjamin H. Hutton, deceased, against Mary if. Townshend and Francis G. Wieek. There was a judgment entered for the plaintiffs upon the report of a referee, and. defendants appeal.

<p>1. Wills—Action to Recover Legact.</p> <p>Plaintiff, in an action to recover an interest under a will, alleged that in an action for the construction thereof it had been adjudicated that he was entitled to a one-eleventh share of an estate thereunder in the hands of defendant as trustee, and demanded judgment against defendant for the value of the interest. Held, that the complaint was fatally defective as stating a cause of action at law, in that it did not appear therefrom that there had been any accounting showing the value of plaintiff's share of the estate.</p> <p>2. Same—Pasties.</p> <p>In such case, the persons interested in the distribution of the estate not being made parties to the suit, it cannot be maintained as an action for equitable re lief.</p>

Action by John Parker and Robert Graham, executors of James Linden, deceased, against Maria Linden, Mark Lythgoe, and others, for the construction of the will of said James Linden.

Application by the Mattson Rubber Company to vacate an attachment levied on the property of Stephen B. Barker at the suit of the National Broadway Bank. The applicant appeals from an order denying its motion to vacote the attachment. Code Civil Proc. Y. Y. § 682, provides that “a person who has acquired a lien upon or interest in * * * property, after it was attached, may at any time * * * apply to vacate or modify the attachment.” Code Civil Proc.

Action by Samuel Galle and another against Adolph Tode and others to set aside alleged fraudulent confessions of judgment made by defendants. Defendants appeal from an order continuing an injunction and from an order denying motion to vacate attachment.

Action by Isaac L. Lyons against the Atlanta Hill Gold Mining & Milling Company. An application to compel the receiver of defendant to account was denied, and plaintiff appeals.

<p>Appeal—Weight op Evidence—Findings of Referee.</p> <p>The court, in general term, cannot, in a doubtful case,.upon conflicting evidence, assume the place of the referee to whom a cause has been referred, and decide from the evidence who is best entitled to credit; and it will only interfere with the referee’s decision when facts have been found without evidence, or clearly against evidence.</p>

<p>On reargument. For decision on appeal, see 11 FT. Y. Supp. 543.</p>

Action by William Paine against Elizabeth W. Aldrich and others. The complaint was dismissed, and plaintiff appeals. For former report, see 13 N. Y. Supp. 455.

Action by the Moser & Heidenheimer Malting Company against George-Lawrence and others. Plaintiff appeals from an order vacating an order of arrest in the action, made at a special term held in Onondaga county by the-justice who granted the order of arrest, and entered in the office of the clerk of New York county.

Action by Irving Grinnell and George S. Bowdoin, as executors of the last will and testament of Moses H. Grinnell, deceased, against Roger M. Sherman.

Application by William S. Demarest for a writ of habeas corpus to John J. Gorman, as sheriff, etc. The writ was dismissed, and relator appeals.

Action by Jacob A. Zimmermann and Joseph J. Zimmermann against Christian Jourgensen to recover a balance alleged to be due on a building contract. There was a judgment for plaintiffs, and defendant appeals.

<p>Statute of Frauds—Originad Undertaking.</p> <p>In an action for board furnished to infant children, it appeared that, on the death of the father of the children, defendant, who was named as executor of decedent’s will, asked plaintiff, who kept a boarding-house, to take care of the children, promising to see that she was paid. Held, that defendant’s promise was original, and not collateral, and need not be in writing, in order to bind defendant.</p>

Certiorari by the Oak Hill Cemetery Association to Luther A. Pratt, Michael J. Maher, ancl Jacob G-erling, assessors of the city of Rochester, to review an assessment. Relator was organized March 16, 1889. Prior to that time an ordinance had been in force in the city of Rochester prohibiting interments excepting in certain cemeteries. On March 19,1889, this ordinance was amended, permitting interments to be made in Oak Hill cemetery, as well as and in other cemeteries.

Exceptions from circuit court, New York county. Action by Daniel A. Higgins against the mayor, etc., of the city of New York. A verdict was directed for plaintiff, and defendant moves for a new trial, on exception ordered to be heard at general term in the first instance.

Action by George 0. Tidden, Edward S. Arnold, and Alexander S. Locke •against Barbara Baab, to recover the price of certain stained window glass. Barbara Baab died pending the action, and William Baab and Wilhelmina •Baab, her executors, were substituted as defendants in her stead. Judgment was entered on a verdict for plaintiffs, and the substituted defendants appeal.

Action by the Pittsfield National Bank against William H. Tailer and others. An order was made requiring plaintiff to state separately and number-two alleged causes of action in the complaint, and plaintiff appeals.

Action by Adam Dutenhofer against the Adirondack Railway Company, William Sutphen, William W. Durant, 3?. Murray Olyphant, and Edwin Young. The defendants the Adirondack Railway Company, E. Murray Olyphant, and Edwin Young appeal from a judgment for plaintiff rendered on trial by the court without a jury.

<p>1. Appeal—Review—Nonsuit on Whole Case.</p> <p>In an action by a real-estate broker to recover commissions upon a sale, wherein plaintiff was nonsuited on the whole case, and an exception taken, it is not necessary, in order to present such exception for review, that he should ask to be allowed to go to the jury upon the question whether his services were rendered gratuitously or in expectation of compensation.</p> <p>2. Factors and Brokers—Commissions—When Earned.</p> <p>Plaintiff sold certain real estate for defendant under authority from her. son, understanding that she would pay him for his services. Defendant never expressly promised to pay defendant commissions, but she did not deny her liability therefor after the sale was made, the benefit of which she accepted. Held, that it was error to refuse plaintiff permission to go to the jury upon the question whether his services were gratuitous or rendered in expectation of compensation.</p> <p>8. Same—Evidence.</p> <p>In such case it was error to exclude plaintiff’s testimony that defendant’s son had placed other of defendant’s houses in plaintiff’s hands to be sold in the same way as that in controversy.</p>

Certiorari by John A. Cochrane, as administrator of William Smith, deceased, to Michael Coleman, Thomas L. Peitner, and Edward L. Parris, commissioners of taxes and assessments of the city of New York, to review an assessment of property in the hands of relator belonging to the estate of decedent.

Action by Oliver Downs against Maria Wells, and William Wells as administrator of the estate of Benjamin F. Wells, deceased, to recover $22.50 and interest, plaintiff’s share of a note for $112.50, given by one Phineas Tuthill to said Benjamin F. Wells for the benefit of plaintiff, Wells, and three others. During the civil war plaintiff, defendants’ intestate, and six others, entered into an agreement for protection against the draft for military service.

Application by Mansfield Compton for a mandamus to Elbert Hegeman, county treasurer of Queens county, to compel him to execute and deliver to relator a lease of certain premises sold for unpaid taxes. The relator appeals from an order denying his application.

Appeals from Queens county court. Action by Oscar W. Hommert against Patrick J. Gleason. Plaintiff appeals from an interlocutory judgment sustaining a demurrer to the complaint. Defendant appeals from an order, made on plaintiff’s motion, striking the words “on the merits” out of the provision of the interlocutory judgment for a dismissal of the complaint on the merits if plaintiff failed to file and serve an amended complaint and pay the costs within 20 days.

Appeals from special term, Kings county. Two actions by Frederick Loeser against Herman Liebmann, Louis Liebmann, and John F. Owings. The actions were tried together, and the complaints dismissed on the merits. Upon affidavits that the value of the property the title to which was in dispute was in one action $1,000, and in the other $15,000, the court awarded defendants’ allowances of $50 and $250 in addition to the costs in the respective actions.

<p>Municipal Cobpobations—Unlawful Use of Streets.</p> <p>The complaint in an action against a city for injuries to plaintiff’s person and property alleged that while plaintiff’s horse and sleigh were standing in front of an office on a street in defendant city a bob-sleigh with several persons came at great speed down such street, struck the sleigh, and injured it and the horse, and that plaintiff was also injured while attempting to hold the horse; that the accident was due to the negligence, misconduct, willfulness, and carelessness of defendant, and to the neglect of the city authorities in permitting the streets to be used for coasting.purposes. Meld, that the complaint was insufficient, in that it did not connect defendant with the accident, or show that defendant authorized an unlawful use of the street.</p>

<p>Railroad Companies—Killing Stock—Alleging Negligence.</p> <p>A complaint in an action against a railroad company for killing plaintiff’s horse sufficiently charges negligence on the part of defendant where it alleges that by reason of defendant’s neglect to repair a certain fence on the side of the road which it was hound to repair, and by reason of its neglect to build or repair a certain culvert or cattle-guard which it was bound to build and repair, plaintiff’s horse, without plaintiff’s fault, came on the track, and, by reason of defendant’s negligence in running its cars, was killed.</p>

Application by the National Broadway Bank to vacate an attachment levied on the property of Stephen B. Barker at the suit of George J?. Hodgman. Plaintiff appeals from an order vacating his attachment. Code Civil Proc. N. Y. § 682, provides that “a person who has acquired alien upon or interest in * * * property after it was attached may at any time '* * * apply to vacate or modify the attachment.” Code Civil Proc.

Certiorari by William S. Taylor to review the decision of Charles F. Mac-Lean and others, police commissioners, dismissing relator from the police force.

Action by Charles Shaw and Charles O. Shaw against Frank A. Roberts upon an account. Defendant’s answer set up counter-claims and payment. Code Civil Proc. N. Y. § 2863, provides that a justice of the peace shall not have jurisdiction of a civil action “ where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars.” From a judgment in favor of plaintiffs, defendant appeals.

<p>1. Partition—Immaterial Issues.</p> <p>S. conveyed an undivided one-fourth of certain premises to W., receiving W.’s bond for §1,000, and a purchase-money mortgage to secure the same. W. conveyed his purchase to plaintiff, C. M. afterwards acquired the other three-fourths of the premises, and, in ignorance of the conveyance to W., sold a portion of the property therein conveyed to D. and others. After learning of W.’s bond and mortgage, M. procured an assignment of both, and set them up as a lien against C. in an action for partition instituted by him against M. and her grantees, D. and others. C. tendered an issue to M. as to the validity of the mortgage as a lien, which M. accepted, but the court refused to adjudicate the same. Held, that the determination of that issue was not necessary in order to a judgment of partition between the parties, and was properly declined, under Code Civil Proc. N. T. § 975, which provides: “ An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried. ”</p> <p>2. Same—Lien of Defendant—Parties.</p> <p>A defendant, in an action for partition, who sets up a mortgage as a lien on the premises, but who omits to file a copy of her answer upon the defendants having interests adverse to her as mortgagee, must be left to her remedy by foreclosure, and cannot obtain satisfaction of the mortgage before partition of the premises.</p>

Action by Thomas Armstrong against Peter Phillips, commissioner of highways. The answer was served by mail, August 9, 1890. Notice .of this motion was served August 26, 1890, to be heard September 9, 1890. September 5, 1890, the defendant served an amended answer by mail, in which no portion of.the matter sought to be stricken out was. inserted.

<p>Boundaries—Evidence—Division Fence..</p> <p>In an action involving the location of the dividing line between the lands of plaintiff and one M. it appeared that a continuous straight line formed the north boundary of both tracts and the south boundary of the land of one E. E. testified that he had divided the division fence with plaintiff and M., and that for 50 years he had begun at a white oak, which plaintiff claimed as his north-east corner, and built the east half of the fence between the land of himself and plaintiff, and .the west half of the fence between the land of himself and M. On cross-examination it appeared E. built half of the fence between his land and that of plaintiff and M., and that the part so built by him was on both sides of the oak, but that neither party had ever spoken of the oak as the point of division. Meld, that the testimony of E. should have been stricken out on defendants’ motion.</p>

Petition by the president, managers, and company of the Delaware & Hudson Canal Company to vacate an assessment for improving the streets of the city of Albany. The improvement was made pursuant to an ordinance of the common council of the city of Albany, passed April 30, 1880.

<p>Appeal from circuit court, Ulster county.</p> <p>Action by Elizabeth R. Bruyn against Benjamin Russell and James B. Keeler, executors of Jacob De Witt, deceased. From a judgment in favor of plaintiff defendants appeal. For former report, see 4 IT. Y. Supp. 784.</p>

Action by Mary B. Reid against the board of supervisors of Albany county. In the years 1875 to 1882, both inclusive, William Reid purchased various parcels of land at tax-sales thereof made for, the non-payment of taxes by the county treasurer of the county of Albany, under chapter 86, Laws 1850, and the acts amendatory thereof, and received certificates and deeds therefor issued to him in accordance with the terms of the act.

Action by George B. Martin against Franklin Mallery, Stephen Holland, and another. Plaintiff recovered a judgment, obtained execution, and levied the same on property alleged by him to belong to defendants Mallery & Holland, as partners. William B. Hollister, an intervening execution creditor of Mallery, appeals from a judgment rejecting his claim to priority on plaintiff’s levy.

Action by Joshua P. Demby against the city of Kingston. Defendant appeals from a judgment awarding damages and an injunction, entered upon the decision of the court upon the verdict of a jury.

<p>Limitation of Actions—Mutual Account.</p> <p>Code Civil Proc. N. Y. § 386, provides that, “in an action brought to recover upon a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side. ” Section 382 requires such an action to be brought within six years from accrual of the cause of action. Plaintiff and defendant had mutual accounts from 1876, when plaintiff ascertained a balance against defendant, and assigned same to secure a debt. There were no further dealings between the parties until 1884. In the meanwhile, prior to 1884, plaintiff procured a reassignment of his account against defendant, and instituted suit thereon in 1884. Held, that the accounts between plaintiff and defendant were closed by the assignment in 1879, and that the reassignment to plaintiff could not have the effect of reopening the account, so as to prevent the application of the statute.</p>

Application by liebecca A. Swan, widow of Erskine Swan, deceased, individually and as administratrix of said Erskine Swan, to compel Mary Swan, as the executrix, etc., of Hiram Swan, deceased, to give new or further security or for supersedure of her letters testamentary.

<p>Appeal from special term, Ulster county.</p> <p>Action by Jesse Elting against Calvin Palen. There was a judgment for-plaintiff, and defendant appeals.</p>

<p>Appeal from circuit court, Montgomery county.</p> <p>Action by Archibald. A. McLaughlin against John T. Charles for slander. Judgment was entered on a verdict for plaintiff, and defendant appeals.</p>

Action by Margaret Hill against Frank Froehlick and Peter Mourion, as executors of Mary Young, deceased. Judgment was entered on a verdict for plaintiff, and defendants appeal.

Reference, under the statute, from the surrogate’s court of Rensselaer county, to try Hammon Herrington’s claim of $2,117.36 against the estate of Walter A. Winn, deceased, for balance due for cord-wood and one horse sold and delivered to the deceased, which claim had been rejected by his executrix, Catherine Winn. The reference was by consent of the parties and the approval of the surrogate. The claim was allowed by the referee, and the executrix appeals.

<p>Appeal from special term, Fulton county.</p> <p>Action by David McCosker and George J. Molloy against Emanuel Smith. From an action allowing an amendment of the complaint defendant appeals.</p>

<p>Appeal from circuit court, Eensselaer county.</p> <p>Action by Charles Stone against the city of Troy. There was a judgment for plaintiff, and defendant appeals.</p>

Action by Michael Larow against Nicholas J. Clute, to recover damages sustained and expenses incurred by the plaintiff in consequence of injuries alleged to have been received by his wife from a fall upon an icy sidewalk on the south side of Factory street, in the city of Cohoes, in March, 1885, opposite the premises of the defendant; the plaintiff alleging that a dangerous accumulation of ice was formed upon the sidewalk in consequence of the negligence of the defendant.

<p>Appeal from special term, New York county.</p> <p>Action by Caroline W. Sommer against the New York Elevated Railway Company and others. From a judgment granting an injunction and damages defendants appeal.</p>

Action by Magdalena Bach against the New York Elevated Railway Company and others.

<p>Appeal from circuit court, Washington county.</p> <p>Action by James 0. Rogers against William G. Wiley and Frederick L. Smith. Judgment was entered on a verdict for plaintiff, and defendants appeal.</p>

<p>Compbomise—Validity—Kbaud.</p> <p>A firm, having made an assignment for the benefit of their creditors, subsequently agreed with them upon a compromise, by which the creditors accepted, in full of their claims, 55 per cent, thereof, in notes of the partners, with security, and, in addition thereto, A., one of the partners, agreed to pay to the creditors, upon the expiration of a year from the payment of the notes, the profits of any business in which he might be then engaged, not to exceed 10 per cent, of the original claim. Before the compromise was completed, W., a son of A., made,a contract with one of the firm creditors, unknown to the others, whereby the interest of such creditor in the additional sum to be paid by A. should, .on the completion of the compromise deed, be assigned to him, in consideration whereof he should give his note, secured by separate written guaranty of A. Held, that such agreement between W. and such creditor was fraudulent, and the compromise therefore null and void.</p>

Action by Albert Wilson against George W. Smith to recover $542.30 for so much money “laid out and expended for and at the request of the defendant.” The action was commenced April 8, 1890, and 10 days afterwards the plaintiff served a bill of particulars of his demand, the first item of which was for “cash loaned defendant, $234.” The answer, which consisted of a “general denial,” was served May 5, 1890.

Action by James F. Pendleton against Alexander Johnston. Plaintiff appeals from a judgment for defendant for costs, entered on the verdict of a jury in favor of plaintiff for six cents, and also from an order denying plaintiff’s motion to set aside the verdict and for a new trial.

Action by Vincenzo Mele against the Delaware & Hudson Canal Company.

Appeals from trial term. Action by George H. Bandall against the United Life & Accident Insurance Association. Defendant appeals from an order denying its motion to postpone the trial, and from an order denying its motion to open a default and inquest taken against it, and from an order denying its motion for a reargument of the last-mentioned motion.

Action by James H. Jones against the Metropolitan Elevated Railway Company and others. From a judgment in favor of defendants entered on a verdict for plaintiff for six cents damages, from an order denying plaintiff’s motion for a new trial on the ground that the verdict was for insufficient damages,'and from an order refusing to allow plaintiff the costs of the action, plaintiff appeals. Code Civil Proc.

Action by Bichará Beeves against Bichardson & Boynton Company to recover for breach of contract. Befendant appeals from judgment entered on verdict for plaintiff, and from order denying motion for new trial.

Action by Mary A. McMurray, as administratrix of Lawrence Ennis, deceased, against Teresa Ennis, to recover money paid to defendant after the death of plaintiff’s intestate, who was the father of the parties, on checks drawn by decedent in favor of defendant. There was a verdict for plaintiff* and defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Hath an May against Bertha Hamesschlag. There was a verdict for plaintiff, and defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Frederick W. Davis against George W. Evans. There was a verdict for defendant, and plaintiff appeals.</p>

<p>Negligence—Dangerous Premises—Evidence.</p> <p>In an action for negligence alleged to have caused the death of plaintiff’s intestate, it appeared that one V., who had leased certain premises from defendant, employed decedent to put glass in a window thereof. Across the outside of the window were two iron guard-rails, about five-eighths of an inch in diameter, secured, by screws to the sides of the window. The distance from the rails to the inner-edge of the window-sill was about 18 inches. Decedent was seen at work, sitting in the window, with his feet inside. When next seen, he was lying on the ground:, below, both iron rails and the screws which secured them having fallen also. Held, that there was no evidence of negligence on the part of defendant.</p>

Action by August Immig against John Haesloop. A motion to,vacate an order for the examination of plaintiff before trial was denied, and plaintiff appeals.

<p>1. Master and Servant—Detective Appliances—Car-Coupling.</p> <p>Where a brakeman, in the employ of defendant railroad company, while attempting to couple an engine to a train of cars, is crushed by reason of the bumpers on the engine being so low as to pass under the bumpers on the car, and allow the engine to come in contact with the car, defendant is liable.</p> <p>2. Same—Negligence ot Fellow-Servants.</p> <p>In such case, the appliances being defective, defendant is not relieved from liability by the negligence of the person in charge of the engine in moving it faster than is usual in such cases.</p>

Action by one Tobias, an infant, by guardian ad litem, against the Broadway & Seventh Avenue Railroad Company. Plaintiff was ordered to give security for costs, and from such order appeals.

Indictment against Charles P. Clark and others for violating the “Car-Heating Act.” Defendants moved to strike out counts 5 and 7 of the indictment, which motion being granted, they then demurred to each remaining count.

<p>1. Insurance—Payment of Loss.</p> <p>Defendant, tenant by the curtesy, insured his premises against fire, stating his estate therein to be in fee. The premises were burned, and the insurance company voluntarily paid the insurance, which they might have avoided on the ground of defendant’s misstatement of his title. Reid, in an action by the remainder-men to recover a portion of the insurance money, that, defendant having had no valid claim against the company, plaintiffs could stand in no better position, and were entitled to no part of the insurance voluntarily, paid defendant by the company.</p> <p>2. Same—Insurable Interest—Tenant for Life.</p> <p>A tenant for life may insure premises belonging to the estate for his own benefit, and, in case of a loss, the remainder-man will be entitled to no part of the insurance.</p>

Application by John S. Maxwell for admission to the bar. Code Civil Proc. ÍN. Y. § 18, provides that-a rule of the court of appeals “does not take effect until it has been published in the newspaper published at Albany in which legal notices are required by law to be published, once in each week for three successive weeks.” Section 57 provides, with reference to amendments of the rules of the court of appeals respecting the admission of attorneys to the bar, that “a copy of…

<p>Action by William F. Bunco, as guardian, etc., against George W. Bunce, executor, to recover the share of plaintiff’s ward in the estate of defendant’s testator.</p>

<p>Accommodation Paper—Liability of Indorser.</p> <p>Defendant indorsed a note for the accommodation of M., who agreed not to use it elsewhere than in Louisville, Ky. M., immediately thereafter, in order to obtain • an extension of time on a protested draft owned by plaintiff, a bank in New York city, indorsed and delivered the note to plaintiff as collateral security for such draft. Meld that, such note being indorsed for good and valuable consideration, defendant was liable therefor.</p>

<p>Appeal from special term, Albany county.</p> <p>Action by Peter Blake against John J. Harrigan, as executor of John Harrigan, deceased, and others. A reference was ordered, and defendants appeal. For former report, see 11 E. Y. Supp. 209.</p>

<p>1. Wills—Construction—Jurisdiction of Supreme Court.</p> <p>An action to construe a will, and to restrain the executors from exercising a power of sale, cannot be maintained in the supreme court of New York on the ground that the devisees have elected to take the real estate in kind, instead of. having the same sold and distributed as authorized by the will, unless a trust under the will is involved, since courts of equity have jurisdiction to interpret wills only as an incident to their jurisdiction over trusts. Following Monarque v. Monarque, 80 N. Y. 320.</p> <p>2. Quieting Title—Defect on Face of Record.</p> <p>Nor can such action be maintained as a bill to remove cloud from title where the - complaint alleges that the power of sale is void on its face.</p> <p>8. Wills—Devise Subject to Sale and Distribution—Election.</p> <p>In an action to restrain the exercise of a power of sale contained in a will, by which testator devised all his real estate to his widow and children, and authorized bis executors, “for the purposes of a division or distribution, or for any other purpose that they in their best judgment may think proper, ” to sell the real estate and divide the proceeds, etc., the complaint alleged that on the death of testator the devisees took possession of and occupied the real estate, and continued in the exclusive control of the same, “and have enjoyed, possessed, and treated the same as real estate, and that this was done by the acquiescence of the executors and all the parties in interest, ” thus exercising their election to take the real estate itself, instead of their distributive share of the proceeds thereof; and that all testator’s debts were paid. Held, that the complaint stated a cause of action. Following Prentice v. Janssen, 79 N. Y. 478.</p>

<p>'Towns—Unauthorized Conveyance—Ratification.</p> <p>One D., as one of the trustees of plaintiff town, forged a resolution authorizing him to sell and convey town property, and such trustee afterwards conveyed the property to defendant, received the purchase money, and forged a resolution ratifying the sale. New town officers, seeing the resolution on record, and being deceived thereby, called on D. to account for the proceeds, and, on his failure to do so, they sued him. The fraud was not discovered until after execution in the action was returned unsatisfied. It did not appear that any proceedings were taken to enforce the judgment after the discovery of the fraud. Held, that the proceedings in the action against D. were not a ratification of the sale to defendant, so as ' to give him a good title as against the town.</p>

<p>¡Fraudulent Conveyance—Rights of Purchaser—Knowledge of Parties.</p> <p>P. and A., partners, executed a note to plaintiffs for a partnership debt. They then agreed that P. should sell his interest in the concern to E., which was" clone,with the further agreement that the debts of the concern should be paid by P. and A. Thereafter A. sold and transferred his interest in the concern to X. Plain tiffs, after obtaining judgment against the old firm, P. & A., and having an execution returned unsatisfied, brought their action to reach the assets of the old firm. Held, that A-., having known of the negotiations for the transfer of the one-half interest in the firm to E., was bound thereby, and in no situation to complain of the transfer and of the dismissal of the suit as to E.</p>

Action by Sallie Straus against David Straus for limited divorce. From an order granting an additional sum for alimony, defendant appeals.

<p>Appeal from surrogate’s court, Otsego county.</p> <p>Judicial settlement of the accounts of Robert Washbon and John Cope, surviving testamentary trustees under the will of Andrew G. Washbon, deceased.</p> <p>The surviving trustees presented a petition for a judicial settlement of their accounts to the surrogate of Otsego county, who issued a citation returnable October 10, 1889, directed to John G. Washbon, Andrew G. Washbon, Anne W. Lee, and Nathan Bridges, as executor of the last will and testament of Henry R. Washbon, a deceased trustee. On the return of the citation, proceedings were adjourned to November 15,1889, and they were again adjourned to the 9th of December, 1889. The statements and accounts presented by the-trustees were verified in November, 1889. Anne W. Lee and Andrew G. Washbon, for themselves, in behalf of their father, John G. Washbon, filed certain objections to the account. Andrew G. Washbon, of the town of Morris, Otsego county, made and published his last will and testament bearing date the 31st day of January, 1865. Robert Washbon, Henry R. Washbon, and John Cope, Jr., were named as executors in said will. Henry R. Washbon, one of the executors, died on the 1st day of April, 1884. No inventory having been filed, Andrew G. Washbon and Anne W. Lee, on the 23d of November, 1887, filed a petition in the surrogate’s court asking for an order that a citation issue directed to Robert Washbon and John Cope, Jr., and Nathan Bridges, as executor of Henry R. Washbon, requiring them to return and file an inventory of the estate of the testator; and in pursuance of the proceedings thus instituted an inventory was, on the 28th day of February, 1888, filed, “and an account of their proceedings as such executors and trustees;” and the surviving executors made application for a voluntary accounting, and proceedings were had thereon in connection with the compulsory proceedings; proofs were taken before the surrogate, and he “adjudged and decreed that the said accounts be, and the same are hereby, finally and judicially settled and allowed as so found, adjudged, and recorded as aforesaid;” and Robert Washbon and John Cope, Jr., were “directed to retain in their hands, as surviving testamentary trustees under the will of said testator, subject to modifications for charges and allowances for interest, and all proper payments and expenses to be adjusted upon a future accounting of said trustees,” the sum of $9,017.54, as appears by the decree entered in the surrogate’s court on the 26th day of July, 1889. The stipulation was filed and that decree was amended on the 2d day of September, 1889, nunc pro túrne. The decrees of the 26th of July, 1889, and the 2d of September, 1889, remain in full force and virtue. Before the decree appealed from was pronounced, John G. Washbon died intestate on the 9th day of March, 1890, and subsequent thereto Andrew G. Washbon was appointed administrator of his estate, and on the 18th of April, 1890, he was substituted as a party in place of the deceased, and the proceedings were continued by a stipulation “as a final judicial accounting.”</p>

Action by Jarvis Dinsmoor against the Commercial Travelers’ Association of the State of New York, to recover $5,000 loss alleged to have been sustained by Mary F. Curran under the terms of the policy issued by the Commercial Travelers’ Association, payable to her upon the death of her husband, Daniel C. Curran, who died on the 9th of July, 1889, she having assigned her claim under the policy to Jarvis Dinsmoor, her brother-in-law; and his complaint was verified on the 26th…

<p>1. Executobs and Administbatobs—Limitation of Actions—Nonsuit.</p> <p>Code Civil Proc. N. Y. § 1822, provides, when an executor rejects a claim against the estate of his testator, unless the same be referred, “the claimant must commence an action for the recovery thereof against the executor or administrator within six months after the dispute or rejection. ” Section 405 provides, where an action is commenced within due time, and “is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or final judgment upon the merits, ” the plaintiff may commence a new action for the same cause, after the expiration of the limited time, within one year after the termination of the action. Plaintiff, on May 7, 1888, presented a claim to executors for worthless stock transferred to him by testator in payment for land. On June 28, 1888, plaintiff brought an action to recover the apparent value of said stock as so much due on the purchase money of the land. Plaintiff was nonsuited October 31, 1888, and on November 29, 1888, he commenced a second action to recover said purchase money. Held, that plaintiff’s claim for reimbursement for the worthless stock, and for a balance of purchase money due by reason of such worthlessness, were one and the same; and that the institution of suit within one year after the nonsuit in the first action, which had been instituted in proper time, prevented the application of the bar of the statute (section 1823) to the second.</p> <p>3. Damages—Measure—False Representations—Value of Stock.</p> <p>Plaintiff received from defendants’ testator corporate stock of the face value of $5,000 in payment for land. He thereafter brought an action, alleging the worthlessness of the stock, and seeking to recover its face value as so much due on the purchase of the land. The court instructed the jury that the measure of damages sustained by the plaintiff was “the difference in the value of the stock as represented and the actual value of it at the time the sale was made. ” It appeared that plaintiff had procured a loan of $1,500 on the stock, and that the corporation issuing it had failed, with assets about equal to the liabilities, including the capital stock. Plaintiff introduced no evidence showing the difference between the value of the stock as represented and as developed to be equal to 100 cents on the dollar. Plaintiff obtained a verdict for $5,000 damages. Held, that the verdict was contrary to the evidence and the instructions of the court, and should be set aside, and a new trial granted.</p>

<p>Chattel Mortgage—Possession and Sale bit Mortgagor.</p> <p>Plaintiff sold a stock of goods to one T., taking a chattel mortgage thereon to secure the price. It was agreed that T. might continue to sell the stock in the ordinary way, and use the proceeds generally in his business, paying §500 each year on the mortgage debt, and keeping up the stock by new purchases. At the end of each year T. was to give plaintiff a new mortgage on the goods then on hand for the balance of the debt. Held, that a mortgage given under such agreement tended to hinder and delay the creditors of the mortgagor, and was void as to them. Distinguishing Brackett v. Homey, 91 N. T. 314.</p>

Action by Arthur Leary, as executor, etc., against John H. Melcher anil others. The prayer of the complaint was: “First.

<p>1. Divorce—Practice—Foreign Judgment—Stipulation.</p> <p>Defendant in an action for divorce left the state of New York in September, 1885, and went to California, where he remained several months without actual employment. In April, 1886, he instituted an action for divorce against his wife, whom he left in New York, alleging that he had been for six months a resident of the state of California, and obtained a decree of divorce a vinculo on the ground of desertion and cruelty. The wife afterwards instituted an action in New York to obtain a divorce there, and therein the parties stipulated that the matters stated in the California complaint were sufficient, “if true, ” to authorize the court there to grant the decree under the laws of that state. Held, that such stimulation did not waive the question whether jurisdiction of the parties had been in fact acquired by the California court, or whether the judgment was fraudulently obtained.</p> <p>2. Same—Effect of Foreign Judgment—Jurisdictional Facts.</p> <p>In such case, plaintiff, not having been personally served in California with process as defendant in the action there, is not estopped from denying and disproving the jurisdictional facts upon which the judgment rendered against her there was based.</p> <p>8. Same—Grounds—Adultery.</p> <p>A person who fraudulently procures a divorce in a foreign jurisdiction, and then marries and returns to his original domicile, is guilty of adultery, notwithstanding the validity of the second marriage, so far as the right of the first wife to a divorce upon that ground is concerned.</p>

Action by Margaret Bell and Jennie Hindell against William Bumstead, Jr., impleaded with others. From an order denying defendants’ motion, founded on the judge’s minutes, to set aside a verdict in favor of the plaintiffs, and for a new trial, defendants appeal. The action was originally brought by these plaintiffs and Elizabeth Gibbons to recover three-twelfths of certain real property described in the complaint.

Action by Peter Beaudin against the Central Vermont Railroad Company •for injury sustained by the plaintiff while engaged in the service of the defendant as brakeman on a freight train of defendant’s cars. The case discloses that the plaintiff had been in the defendant’s employ as brakeman ■about eight or nine months before the injury, and that a part of his duties required him to man the brakes and couple the cars on trains run on defendant’s railroad.

<p>Appeal from special term, Rensselaer county.</p> <p>Action by Morris, Tasker & Co. against Lee Chamberlin. From an order ■denying his motion for judgment on the pleadings, defendant appeals;</p>

Appeal ^rom circuit court, Albany county Action by Jeffrey Parris against the village of Green Island. The action was prosecuted to recover damage alleged to have been sustained by the plaintiff from injuries suffered by him by being thrown from a wagon which, plaintiff claims, was upset by coming in contact with a pile of earth which, plaintiff claims, defendant negligently suffered to be in one of its streets.

Action by James Chambers, Limited, a judgment creditor, against E. Leroy Smith, assignee, etc., and Burr W. Upham, to set aside a general assignment of defendant Upham to defendant Smith for the benefit of creditors, on the ground of fraud. The case shows that prior to October 14, 1888, J. M. Up-ham and Burr W. Upham were partners in business under the firm name of J. W. Upham & Son.

Action by John Rousseau, administrator of Mary Rousseau, deceased, against Jennie Bleau and others.

Action by John Colvill and others against Percy Chubb. From an order staying the trial of certain issues at circuit until the determination of other issues at special term, plaintiffs appeal. For former report, see 14 N. Y._ Supp. 433.

<p>Specific Performance—Contracts Enforceable—Payment of Purchase Money.</p> <p>Plaintiff executed a mortgage upon real estate to secure a loan, and then sold the mortgaged premises to defendant, who covenanted to pay off the mortgage as part of the consideration of his purchase. Held, in an action by the vendor to compel defendant to specifically perform his contract to pay off the incumbrance, that the mortgaged premises constituted a primary fund for that purpose, and that payment by defendant could not be compelled until the land was found insufficient therefor.</p>

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action by Walter V. Wilson against the city of Troy. From a judgment in favor of the plaintiff, defendant appeals.</p>

Action by Sylvester B. Miller, as administrator of Thomas Miller, deceased, against Harriet B. Davis, Susan L. Miller, and C. Lucretia Miller, and 0. Lucretia Miller and David F. Dobie as administrators of Sarah M. Miller, deceased. From a judgment directing the dismissal of the complaint, plaintiff appeals.

Action by Frances E. Williams against the United States Mutual Accident Association on an accident insurance policy issued by the appellant to Alonzo O. Williams, payable in case of loss to his wife, who brings this action.

Proceedings for final judicial settlement of the accounts of Wilber Maben and others, as executors of the last will and testament of Buel Maben, deceased. i The settlement and distribution of the estate of deceased involved a judicial construction by the surrogate of certain provisions of the will of the testator.

<p>Insurance—Premiums—Payment with Stolen Money.</p> <p>Life insurance for the benefit of the wife of the insured was procured and the premiums paid with money stolen by the insured from his partner. The amount stolen was much greater than the amount of the policies. Held, in an action by the partner to recover the proceeds of such policies, that defendants would be enjoined from disposing of the fund pendente lite.1</p>

Newton A. Drown and others were convicted of the crime of feloniously receiving stolen property, knowing it to have been stolen, under section 550 of the Penal Code; and from such judgment of conviction, and from an order denying their motion for a new trial on the minutes, bringing up the decision of the same court denying a motion in arrest of judgment, and an order overruling the defendants’ demurrer to the indictment, they appeal.

Action by Frederick St. John against Conrad Swain, Jr. From a judgment entered on a verdict, and from an order denying defendant’s motion for a new trial on the minutes in a case appealed from a judgment rendered by a justice of the peace, defendant appeals.

Action by Aultman, Miller & Co. against Frederick Hacker. From a judgment entered on a verdict in favor of defendant, and from an order denying plaintiff’s motion for a new trial made on the minutes of the court, plaintiff appeals.

Action by Jacob Farmenter against J. J. Fitzpatrick, as sheriff of Clinton-county, and some judgment creditors of A. C. Smith & Co., to recover for-the alleged wrongful taking and conversion of a stock of merchandise. The summons was served only upon the defendant Fitzpatrick.

The decedent left no wife or children, his only heirs and next of kin being the children of a deceased brother,who appear as contestants to the probate of the will and appellants on this-appeal. Lewis Burgess, the proponent, and sole executor named in the instrument, drew the same, and is the sole legatee and devisee named in the body of the instrument. On the margin is a note directing a cheese factory to be given to Seymour L. Western.

Action by Mary McC. Hastings against John Clafflin and others, for trespass in wrongfully taking personal property. The defense sets up title in a judgment debtor of defendant, and justifies the seizure under an execution on the judgment, and alleges that the transfers through which plaintiff claims are fraudulent.

Action by Valentine Voght and others against the city of Buffalo to set aside an assessment. There was a judgment for defendant, and plaintiffs appeal.

Action by James H. McGean, as executor and trustee under the will of Delia Powers, against the Metropolitan Elevated Bail way Company and the Manhattan Bail way Company. The judgment awards to the plaintiff the sum of $780.42 for past damages, and contains an injunction restraining defendants from operating their railroad in front of the premises No. 15| Division street, unless, within a time specified, they pay the sum of $1,500. Defendants appeal.

Action by Henry Siefke against the Manhattan Bail way Company and the Metropolitan Elevated Railway Company. There was a judgment for plaintiff and defendants appeal.

Action by Max Gentilli against Achilla Starace. From judgment entered in favor of defendant for $615, with interest and costs, on report of the referee to whom the cause was referred to hear, try, and determine the issues, plaintiff appeals.

Action by John C. Pegram and John A. Loring, as trustees under the will of Nancy Homer, deceased, against the New York Elevated Railroad Company, the Manhattan Railway Company, and Charles E. Butler. Prom an. order striking the cause from the equity term calendar plaintiffs appeal.

Replevin by Edward H. Am mid on and others against the Century Rubber Company and others to recover the possession of certain goods of the value of about$7,000, which were sold by the plaintiffs and delivered by them to the ■defendants Carpenter & Lockwood, upon the faith of certain representations as to their financial standing and condition, which turned out to be fraudulent.

Action by John L. Stroub against the Manhattan' Bail way Company to restrain defendant from constructing an add itional track in front of plaintiff’s premises. Plaintiff moves to continue preliminary injunction.

<p>Appeal—Review—Weight of Evidence.</p> <p>Where there is a conflict of evidence, the court will not interfere with the judgment of a justice, unless there be evidence clearly indicating that the justice must have been influenced by prejudice, partiality, or passion, or has manifestly neglected to deliberate upon the whole testimony.</p>

. Action by Sarah Cain, guardian, etc., against Rosa Flood, to recover the possession of premises alleged to have been forcibly entered and detained by the defendant. From a final order of the district court awarding possession to the petitioner, defendant appeals.

Petition by Charles Stanton to remit the forfeiture of a recognizance incurred by him as bondsman for Louis S. Street, who was under indictment for certain offenses.

Action by Rowland W. Thomas and others against James H. Whitlegge.

Action by Richard Goedecke and another against Leopold M. Schwerin and others, to recover a share of the profits of a joint adventure entered into between the parties to this action for the manufacture and sale of campaign buttons and badges. From a judgment in favor of plaintiffs, and an order denying defendants’ motion for a new trial made upon the minutes, defendants appeal.

Action by Annie Conlin, as administratrix of Patrick Conlin, deceased, against John C. Rogers and others, for damages for the death of plaintiff’s intestate, alleged to have been caused by the defendants’ negligence. On the conclusion of plaintiff’s case the complaint was dismissed, “on the ground that the plaintiff has not proven facts sufficient to constitute a cause of action.” Plaintiff’s counsel duly excepted.

Action by Matthew Grier and Ella D. George as executors of Charles H. George, against Hazard, Hazard & Co., a corporation, for work, labor, and materials, rendered by their testator to the defendant corporation. From judgment of the general term of the city court, affirming judgment on a verdict directed by the court, defendant appeals.

V.14N.Y.S.H0.6—50 Appeal from trial term. Action by William D. Phelan against the mayor, etc., of the city of New York. Judgment entered on a verdict directed for defendants, and plaintiff appeals.

Action by Charles W. Kerner against CharlesH. Boardman and others, for the conversion of a parcel of teas. Plaintiff bought the teas of Payne & Storm in good faith and for val-ue paid. Upon an allegation that Payne & Storm had got the teas from him by fraud, defendant Boardman brought replevin against Johnson, assignee for creditors of Payne & Storm, and under process the sheriff took possession of the teas.

<p>Writs—Summons—Defective Return—Amendment.</p> <p>Where it is manifest from the return of the summons-in a case that the time of rendering judgment is erroneously stated, the court will of its own motion, in default of amendment by stipulation of parties, return the case to the justice who tried it for amendment.</p>

<p>Assumpsit—Use of Telephone—Implied Contract.</p> <p>Plaintiff sold out his business, in connection with which he used a telephone, to defendants, who continued it at the same stand. Plaintiff left the telephone in the premises, but there was nothing to show that it was done at defendants’ request, or that there was any agreement in relation thereto, or that defendants had ever used the instrument. Held, that plaintiff, having contracted for the use of the instrument, should have terminated his liability by notice to the company, and that no promise to pay the monthly charges for the same on the part of defendants could be implied from the fact that it was allowed to remain on the premises.</p>

<p>Mechanic’s Lien—Enforcement—Notice—Service of Summons.</p> <p>Laws N. Y. 1885, c. 342, § 24, provides that an owner of property may give notice in writing to a person asserting a mechanic’s lien thereon to bring an action of foreclosure by a day named, or show cause why the lien should not be vacated. On December 4,1890, P., an owner of property, served such notice on M., a lienholder, returnable January 10,1891, who commenced his action January 6,1891, by-filing a summons and complaint in the clerk’s office, and leaving copies at the office of the attorney who countersigned the notice. The attorney, on January Sth, declined to appear for the owner, and on return of the notice, January 10th, the court gave the lienholder 10 days in which to perfect service of summons on the owner or to procure an order of publication against» her. Publication was made, and, the owner failing to appear, her application to discharge the lien was denied. Held, that there was no error in extending lienholder’s time in which to make service of his complaint, he having exercised reasonable diligence to discover the owner’s whereabouts, in order that service might be made upon her, and to obtain an appearance for her by attorney, and that his action was begun in proper time.</p> <p>Appeal from special term.</p> <p>Application by Mary A. Poole for an order vacating a mechanic’s lien on her premises filed by Charles Molten. From an order denying her application Mary A. Poole appeals.</p>

<p>1. Judgment—Res Adjudicata—Judgment Roll—Evidence.</p> <p>In an action to recover money paid out for defendants’ use, defendants offered in evidence the judgment roll in an action by plaintiff, alleged to have been for the same cause of action, but expressly stated that they did not offer such judgment in evidence. Held, that defendants failed to show by production of the judgment roll that there was anything more than an action pending, which was no bar to the prosecution of the second suit.</p> <p>2. Same—Identity of Cause of Action—Weight of Evidence.</p> <p>Plaintiff brought an action to recover §250, and the complaint stated it was “for an account stated; services rendered. ” Two accounts appeared on the trial,—one for services, the other for moneys expended. Plaintiff recovered judgment for $117. In a second action betweenthe same parties, to recover §99.99, moneys paid at the request of defendants, there was evidence to show that the account for moneys so advanced was not included in the first action. Held, that it was a mixed question of law and fact whether the claim for moneys expended was litigated in the first action; and, there being evidence to sustain a finding by the justice in the negative, it should be sustained.</p>

<p>Appeal from seventh district court.</p> <p>Action by Alfred Schrimpton and another against Samuel Scheuer and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from ninth district court.</p> <p>Action by Patrick G-. Malony against Edward J. Brady. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from ninth district court.</p> <p>Action by Philip Levitt against the Prudential Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Mechanics’ Liens—Discharge by Owner—Compliance with Statute.</p> <p>Laws N. Y. 1885, c. 842, § 19, provides that the owner of property affected by a mechanic’s lien may at any time after action commenced offer in writing to pay into court a stated sum in discharge of the lien, etc. Held, that the statute must be strictly complied with, and that an offer to pay such sum into court must follow its language, and state that it is in “discharge of the lien. ”</p>

Action by Angelo Garoni, a boy about seven years old, against the Compagnie Nat ion ale de Navigation of Marseilles, to recover damages for an injury caused by defendant’s alleged negligence. From a judgment in favor ■of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

Action by Honora Archibald against the New York Central & Hudson River Railroad Company. From a judgment entered on the report of a referee appointed by the county court of Monroe county, in a case appealed to that court for a new trial from a judgment of a justice of the peace, defendant appeals.

<p>Appeal from Monroe county court.</p> <p>Action by Valentine Fromm against Daniel Ide. ■ From a judgment dismissing the plaintiff’s complaint, and from an order denying motion for a new trial, plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by the W. J. Johnston Company, Limited, against the Electric Age Publishing Company. From an order denying a motion for an injunction plaintiff appeals.</p>

Application by the Oak Hill Cemetery Association for a writ of certiorari to review an assessment of its property made by Luther A. Pratt and others, as assessors of the city of Rochester.

Action by Anna M. Zent, administratrix of Philip Zent, against John Fuchs. From an order setting aside a verdict for the plaintiff, and granting a new trial, plaintiff appeals.

Action by Bernard Rothschild and another against the Grand Trunk Railway of Canada. From an interlocutory judgment overruling a demurrer to the complaint defendant appeals. For former report, see 10 H. Y. Supp. 36.

Action by Annie M. Delaney against Annie A. McGuire, Jane Smyth, and others, to foreclose a mortgage. The controversy in the case was between the defendants as to the disposition of a surplus remaining after the satisfaction of the mortgage, which involved the construction of a devise under which the defendant Annie A. McGuire claimed the whole of the fund.

Action by the'Veterans of the Seventh Begiment (corporation) against the Field Officers of the Seventh Begiment (corporation) and others to enjoin defendant from setting up any claim to tile “Veterans’ Boom,” in the seventh ¡regiment armory in New York city, hostile to that of plaintiff, or molesting plaintiff in the exclusive use thereof.

Action by William Prince against the New York Central & Hudson River Railroad Company. Prom a judgment entered on a verdict of $175 for plaintiff, and from an order denying defendant’s motion for a new trial in a case-appealed from a court of a justice of the peace, defendant appeals.

James J. Thompson was convicted of the crime of selling, or offering to sell, adulterated milk, and from the judgment of conviction, from an order denying defendant’s motion fora new trial made on the minutes of the court, from an order overruling defendant’s demurrer to the indictment, and from an order denying the defendant’s motion in arrest of judgment, defendant appeals.

Action by Lawrence Green against Henry W. Watson. From a judgment entered on a nonsuit directed at the trial, and also from an order denying plaintiff’s motion to set aside the nonsuit and for a new trial, plaintiff appeals.

<p>Appeal from special term, Monroe county.</p> <p>Action by Hiram Wood against Benjamin M. Baker and another. From a judgment directing a dismissal of the complaint, plaintiff appeals.</p>

<p>1. Larceny—Evidence—Sufficiency.</p> <p>On the trial of defendant for grand larceny, it appeared that he, with two others, rudely thrust themselves between two ladies standing at a shop window, one of whom shortly afterwards found that her pocket-book, containing two §10 notes, was gone. She identified prisoner as the person who was next to and jostled her at the window, at which time he wore a derby hat. When arrested, he had on a cap, but two derby hats were found in his room, and a §10 note was found on his person. Prisoner gave his landlord false accounts as to his occupation and former residence. Held, that the jury was justified in drawing the conclusion from these circumstances that the pocket-book in question was taken by defendant.</p> <p>2. Same—Evidence—Admissibility.</p> <p>Witness, a detective, was asked on a trial for grand larceny: “On the night before this larceny, had you heard that there were three pickpockets working this town! ” the object being to have the officer explain how he came to be connected with the prisoner’s case. Held, that the question was in its nature preliminary to something else, and, though having no proper place in the examination, was harmless to defendant, and its admission insufficient as ground for reversal of the judgment.</p> <p>8. Same—Striking out Improper Answer.</p> <p>On a trial for grand larceny, a detective was allowed to testify that he had known the prisoner for several years in Toronto, and was then asked, “ What does he do there! ” to which witness answered, “I never knew him to do any legitimate work there. He is hanging around with thieves. ” There was no objection to the question, but defendant moved that the last part of the answer be stricken out as not responsive to the question, which was done. Held, that the question was proper, and the answer improper, but that defendant, having asked that only a part of the answer be stricken out, was bound by the part that remained.</p> <p>4. Same—Evidence.</p> <p>Defendant, on a trial for grand larceny, was shown to have made certain declarations about himself, his occupation, and residence. Held, that the evidence of a person familiar with his antecedents in another town was admissible to disprove the prisoner’s statements.</p>

<p>Husband and Wipe—Abandonment of Wife—Prosecution.</p> <p>Defendant was convicted of being a disorderly person, under Code Grim. Proc. W. Y. § 899, in abandoning his family without providing means for their support. His chief defense to the prosecution was the fact that he had written a letter to his wife stating that he would support her, and furnish her transportation to the place where he was at work. Held, that it was a question for the magistrate whether the letter was written in good faith, or with the view of bringing himself within the rule that a bona fide offer to support the wife, in a place other than that of her then residence, was a sufficient'defense to the charge of abandonment; and, the letter being silent as to the name of the place where defendant was at work, the evidence was properly held insufficient to sustain the defense.</p>

<p>Appeals—Justice’s Court—Technical Defects.</p> <p>The judgment of a justice of the peace will not be reversed on account of the admission of incompetent evidence, when there is other evidence in the case to sustain his finding; Code Civil Proc. N. Y. § 3063, requiring an appellate court to render judgment upon an appeal from a justice’s court without regard to technical errors or defects which do not affect the merits.</p>

-Appeal from Yates county court. Action by Baldwin’s Bank of Penn Tan against John H. Butler, impleaded with others. Prom an order granting a new trial to the defendant Butler, plaintiff appeals.

Action by Joseph D. Schwartz against Theodore C. Green. From an order directing defendant to serve a bill of particulars of the matters set up in the answer, defendant appeals.

Indictments against John O. Jeffery and Hezekiah Seeley, respectively, for obtaining goods under false pretenses. Demurrers to the indictments were sustained, and the people appeal.

Action by William Armstrong against Harvey Sanford. From a judgment setting aside a previous decision and judgment of the court, and affirming a judgment of a justice of the peace, defendant appeals.

<p>Stay of Proceedings—Actions Pending in Another Court—Injunctions.</p> <p>The supreme court of New York cannot by order stay proceedings in an action pending in the surrogate’s court, but such relief can only be had by injunction, on security being given as required by Code Civil Proc. N. Y. § 620.</p>

Ezra H. Sbedd, as executor of the will of James P. Shedd, deceased, was directed by a decree of the surrogate’s court to make and file an inventory, and from such decree he appeals.

Action by Samuel Bryant against the town of Randolph for personal injuries causing the death of plaintiff’s intestate. From a judgment entered ■on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. For former report, see 6 H. Y. Supp. 438.

Application, of certain freeholders of the town of Montezuma for an order-requiring the repairing or rebuilding of a bridge between the towns of Montezuma and Conquest, known as “ Howland Bridge.” Two appeals we retaken,—(1) by petitioners, from an order entered on the 26th day of May, 1890, denying their application, and (2) by the towns of Montezuma and Conquest, from an order dated July 28, 1890, denying costs to them.

Action by Ferdinand Griebel against the Rochester Printing Company. From a judgment entered on a verdict for defendant, and from an order made at the same term denying a motion for a new trial on the merits, and also, from an order denying a motion for a new trial on the ground of newly-discovered evidence, plaintiff appeals.

<p>Municipal Corporations—Street Gutters—Structural Defects.</p> <p>Where a person is injured while crossing a street hy a fall caused by stepping into a gutter at the end of a cross-walk, the city is not liable for such injuries, on the ground that the gutter was structurally defective, where it appears that all the gutters in the city were constructed on the same plan, by the advice of the city surveyor, and with the authority of the mayor and council; there being no evidence that there was any defect in the maintenance of the gutter, or that it was out of repair.</p>

<p>1. Striking Out Testimony—Effect on Other Testimony of Same Witness.</p> <p>In an action to establish a trust in favor of plaintiff in property theretofore transferred by plaintiff to defendant by a bill of sale absolute in form, the complaint alleged that the bill of sale was not delivered to defendant, but was delivered to one E., to be held by him for the purposes of the alleged trust, and that it (the bill of sale) came into the possession of defendant after the death of E. Held, that the striking out by the court of testimony as to the circumstances connected with the execution of the bill of sale, given by a witness who acted as counsel in the preparation and execution thereof, did not affect the further testimony given by such witness as to the delivery to E. of the bill of sale.</p> <p>3. Same—Statement in Opinion of Trial Court.</p> <p>A statement in the opinion of the trial judge that certain portions of the testimony, should be stricken out does not show that such portions actually were stricken out, in the absence of a decision signed by the judge ordering the same.</p> <p>3. Bill of Sale—Consideration.</p> <p>A bill of sale voluntarily made by plaintiff to his mother, without the exercise on her part of any influence or the offer from her of any inducements, cannot be impeached by plaintiff on the ground that it was without consideration.</p>

Action by John H. Ashton and others against the city of Rochester and another. There was a judgment for defendants, and plaintiffs appeal!

Application by the American Contracting & Dredging Company for a writ of certiorari to review the determination of Edward Wemple, comptroller of the state of New York, made on its application for the revision and readjustments of accounts for taxes against the relator for the years 1887, 1888, and 1889.

Action by Margaret M. Brennan, as administratrix of Mary H. Jarvis, deceased, against Susan E. Hall and William H. Clark, as trustees under the last will and testament of Washington A. Hall, deceased, impleaded with Anna B. Cavarly. There was a judgment for plaintiff and defendants appeal.

Application by the Union & Advertiser Company for mandamus to the board of supervisors of Monroe county, requiring the board to audit and pay relator’s claim for printing and publishing the session laws and notices of sale of land for unpaid taxes for the year 1890. A peremptory writ was directed to issue, and defendant appeals.

Action by Nicholas M. Quade against the New York, New Haven & Hartford Railroad Company to recover the penalty prescribed by Laws N. Y. 1857, c. 185, for charging more than the legal fare. Defendant’s motion to set aside the service of summons was denied by Freedman, J., who filed the following opinion. • “This is a motion to set aside the service of the summons in this action. The motion is made on two grounds.

Action by Mary Senft against the Manhattan Railroad Company and the-Metropolitan Elevated Railway Company. Judgment was ordered for plaintiff, and defendants appeal. Eor former report, see 9 N. Y. Supp. 304.

Action by Richard E. Preusser and Matthew M. Looram against James M. Stockton, and Alexander C. Howe for $6,025, with interest from May 21, 1889, with costs, etc., arising out of the sale to defendants of two lots of stock of the Oregon & Transcontinental Company, one of 500 shares, May 14, 1889, ■and the other of 200 shares, May 15,1889,—the first sale aggregating $18,850 net; the second aggregating $6,925 net.

' Action by Isaac Goldsmith against Valentine E. K. Cook for commissions on á sale of real estate. A judgment entered on a verdict for plaintiff at a trial term of the city court and an order denying a motion for a new trial were affirmed by the general term of the city court. Defendant again appeals.

Exceptions from trial term. Action by Harvey 0. Goodrich against Richard A. Dorman to recover from defendant, as a stockholder in the Avery Machine Company, a debt due from the company to plaintiff. The complaint was dismissed, and plaintiff’s exceptions were ordered to be heard at general term in the first instance.

<p>Exceptions from trial term.</p> <p>Action by Abraham Harris as administrator, etc., against the Woman’s Hospital in the state of New York. The complaint was dismissed, and plaintiff’s exceptions were ordered to be heard at general term in the first instance.</p>

Action by Charles E. Gray against the American Bank-Note Company to recover a commission of 10 per cent, on an order for $3,000 worth of work alleged to have been obtained by plaintiff for defendant through one A. H. Bronson, the agent of the National Bank of Honduras, to engrave and print for said bank, certain notes and certificates. A judgment for plaintiff was affirmed by the general term of the city court, and defendant again appeals.

Action by William M. Crane and others against Nathan J. Schloss and others. A judgment for defendant was affirmed by the general term of the city court, and plaintiff again appeals.

Action by John H. Byron against Edward T. Bell and others, as administrators of Henry B. Low, deceased, on contract to recover for work in the construction of a railroad. • From judgment on verdict, and from order denying motion for new trial, defendants appeal. For former report, see 10 N.Y. Supp. 698.

Action by Hyman Benedict against Joseph Scheider to recover damages sustained by plaintiff through the loss of the forefinger of his left hand, which was cut off by the sudden falling of a hammer attached to a machine at which plaintiff was employed in the factory of defendant. A judgment for plaintiff was affirmed by the general term of city court, and defendant again appeals.

<p>1. Trover and Conversion—What Constitutes Conversion—Sufficiency of Complaint.</p> <p>A complaint which alleges property in plaintiff, possession by defendant as bailee,, the value of the property, and defendant’s refusal to deliver the same on demand,, states all that is requisite to support an action for the conversion of the property.</p> <p>2. Same—Sufficiency.</p> <p>Plaintiff demanded possession of certain articles from defendant, which he refused, giving her a push, and saying: “ Go away from here. Whatever I have 1 will keep. ” There was evidence to show that defendant had the articles in his possession. Held, that defendant’s refusal to deliver under such circumstances furnished full proof of conversion.</p> <p>3. Limitation of Actions—Running of Statute—Demand.</p> <p>In an action to recover for the conversion of personal property, in the absence of evidence of any actual conversion, a refusal to deliver on demand will be held to-constitute a conversion from which the statute of limitations will run under Code Civil Proc. N. Y. § 410, which provides that “where there was a delivery of personal property, not to be returned * * * at a fixed time or upon a fixed contingency, the time must be computed from the demand.</p> <p>i. Witness—Competency—Transaction with Deceased Person.</p> <p>Plaintiff in an action against the administrator for the conversion of plaintiff’s-goods by decedent is not incompetent to testify as to the value of the goods under-Civil Proc. Ñ. Y., which provides that a living party in interest shall not testify in. an action against the representative of a deceased person as to any “personal transaction or communication between the witness and the deceased person. ”</p> <p>5. Evidence—Opinion—Expert Testimony.</p> <p>In an action to recover for a conversion of a quantity of jewelry, plaintiff was allowed to give her opinion in evidence as to its value. Held, that it was error to allow witness to testify as to her opinion without showing that she was an expert judge of the value of jewelry.</p> <p>6. Witness—Transaction with Deceased Person—Competency.</p> <p>In an action to recover for conversion of goods, plaintiff testified that she delivered certain articles of jewelry in a box to a third person to be delivered to defendant’s testator, and such third person testified that she delivered the box to decedent, but did not know what was in it. Held that, by reason of such third person’s, ignorance of the contents of the box, the only testimony as to the delivery of the contents of the box was that given by plaintiff, which was inadmissible, and should have been stricken out, under Code Civil Proc. N. Y. § 829, excluding the testimony of a party in interest in an action against the representative of a deceased person “concerning a personal transaction * * * between the witness and a deceased person. ”</p> <p>Reversing 13 N. Y. Supp. 593.</p>

' Appeal from city court, general term. Action by Eugene Higgins and John D. Wood against William C. Dewey. From an order of the general term, affirming an order of special term, vacating the service of an order for defendant’s arrest, plaintiff appeals, and from so much of the same order reversing an order of special term, vacating ■the order of arrest itself, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Walter L. Johnson, as receiver, etc., against the Manhattan Railway Company and the New York Elevated Railroad Company. The testimony of the witness Thompson as to his knowledge of real estate in the vicinity of plaintiff’s property was as follows: “I am in the real-estate business, and have been for three or four years. Before that I had charge of and owned real estate in the city of New York. I also appraised real estate in. the city of New York, and rented and sold real estate. I am acquainted with' the building No. 166 Pearl street, and with that neighborhood. I have followed the sales and rental values in that neighborhood since 1866, and am acquainted with a good many of the sales that have taken place there, and the rental values of different buildings in that neighborhood during that period. I have had charge of the renting of the building adjoining this, No. 166 Pearl street, since 1866. I have had charge of the renting of that building during all that period. I have examined No. 166 Pearl street. I know it well. It is in size a similar building to miné, No. 168, next door; otherwise not. It has the same frontage on Pearl street.” The material portion of the testimony of the witness Wenman is as follows; “ My business is that of a cotton broker. I have been a cotton broker for forty-nine years. I carried on business from, say, 1865, up to 1884, at 146 Pearl street, the building in suit. I purchased that building in 1865 for $40,000. I made some changes in the building at the expense of $12,000. I put in a new front, and lowered the floors, and improved the property. I occupied it myself in my business as cotton broker from the time I bought it up to 1884. (Letter was handed witness, and asked if his recollection was so refreshed by that that he could state what he had sold that property for.) I sold it to the bank, in liquidation of an indebtedness of $41,500. That was in 1884, the 1st of May. * * * I have been acquainted with Pearl street and its occupation all the time that I owned this property, and up to the present time, and the occupation of Water street in that vicinity, and also of Beaver street; and I have a general knowledge of the business that was congregated in these different streets prior to the elevated railroad. It was once a silk mart of New York; after-wards, crockery, tobacco, and cotton; dry goods also. I am acquainted with Pearl street to-day. Prior to the elevated railroad, Water street in this vicinity was inferior to Pearl street; also Beaver street. To-day they are superior to Pearl street as a business street. My office is there a.t 113 Pearl street, on Hanover square. It is about 100 feet from the elevated railroad station. Question. Please describe Pearl street during the time sued for, from 1884 to March 12, 1889,—what kind of a street it was after the railroad came in the street, as regards business. Answer. The character of the business changed. Q. Specify in what way. A. It drove the leading merchants out of the street, and it brought small offices there. (Counsel for the defendants moved to strike out the answer of the witness as not responsive-, and as stating a conclusion of the witness as to the effect of the railroad upon individuals. The referees denied the motion, and counsel for defendants duly excepted.) I was occupying that building when the elevated railroad came there. I left the building in 1884. The consideration, $8,000, mentioned in the deed of this property to James D. Fish, was not the true consideration. The true consideration was what I have already testified to. Q. What effects, if any, did you ob: serve from the construction and operation of the elevated railroad in front of that property?, A. It destroyed my business entirely.” Defendants appeal.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Proceedings for the probate of the will of Samuel B. Peck, deceased-. Francis L. Peck-appeals from a decree of the surrogate admitting the will to probate. '</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Proceedings for the probate of the will of Virginia P. Kaufman, deceased. Adolph L. Sawyer, executor of said decedent, appeals from a decree of the surrogate refusing probate of the will. Code Civil Proc. N. Y. § 2545, provides that upon the trial of an issue of fact “the surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law. ”</p>

Action by Charles F. Starr against Charles Gordon Patterson. Plaintiff having obtained a judgment and issued execution thereon,defendant moved fora perpetual stay of the execution, on the ground that he had obtained a discharge from all his debts under the insolvency laws of Massachusetts.

Action by the New York Life Insurance & Trust Company, trustee, etc., of Clermont L. de Peyster, against John Henry Livingston,… Held: “(1) The said Clermont L. de Peyster did, by the residuary clause of his said will, validly appoint the property covered by the said trust-deed to and in favor of the defendant John Henry Livingston individually, and for his own benefit.' (2) That the plaintiff is entitled to commissions on the personal property belonging to the…

<p>Appeal from circuit court, Cattaraugus county.</p>

Baffaele Izzo was indicted for carrying concealed on his person a dagger,» with intent to use the same upon another.

<p>Appeal from special term, New York county.</p> <p>Action by Albert W. Gates and others against Willard W. McDonald and others. On the motion of defendant Henry M. McDonald, an order was granted that plaintiffs give, for the benefit of such defendant, security for the costs in the sum of $250. Afterwards an order was made vacating the order in favor of Henry M. McDonald, and directing “that the plaintiffs be, and they hereby are,'required, within two days from the entry of this order, either to pay into court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against them, or, at their election, to file with the clerk of this court an undertaking to be executed to the defendants by one or more sureties, to the effect that plaintiffs will pay, upon ■demand, to the defendants, all costs which may be awarded to them, or any of ■them, in the action, not exceeding the sum specified in the undertaking, which must be at least two hundred and fifty dollars.” Defendants appeal. Code Civil Proc. N. Y. § 3272, provides as follows: “Where security for costs is required to be given, the court in which the action is pending, or. except ■in a case specified in the last section, a judge thereof, upon due proof, by affidavit of the facts, must make an order requiring the plaintiff, within a time •specified, either to pay into court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him, or, at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant’s attorney, and staying all other proceedings on the part of the plaintiff, except to review or vacate the order, until the payment of filing, and notice thereof, and also, if an ■undertaking is given, the allowance of the same.”</p>

Action by the Union Distilling Company against Henry Buser to recover moneys due for goods sold and delivered by plaintiff to defendant. An attachment was granted on the ground that defendant was trying to dispose of his property with the intention of defrauding his creditors.

Action by Melvin Stephens against Dorothy Humphreys, Robert Lewis Humphreys, Margaret B. Humphreys, his wife, Mary Elizabeth Hall, Thomas Hall, her husband, and Matthias Trimmer, to foreclose a mortgage.

Action by Henry A. Rice, as assignee of Earl B. Chace, for the benefit of his creditors, against James Grange on a promissory note in words and figures as follows: “$636 48-100. New York, Dec. 16, 1889. “Four months after date, I promise to pay to the order of Earl B. Chace & Co., six hundred and thirty-six 48-100 dollars,' at 66 and 68 Duane St., H. Y. city. Value received. .. . • Jas. Grange. “Ho.-.

Action by Levi P. Morton, George Bliss, Richard J. Cross, and George T. Bliss against Charles P. Palmer on a judgment.recovered by plaintiffs against defendant for $67,467.80, in the circuit court of the United States for the' southern district of New York.

<p>Composition with Creditors—Additional, Security.</p> <p>Defendants entered into a valid compromise agreement with their creditors, of whom plaintiff was one, by which defendants were to give certain notes in settlement of their debts. Afterwards plaintiff refused to accept the notes made by defendants, as called for by the composition agreement, without the indorsement of one D. Held, that the attempt of plaintiff to obtain additional security did not avoid the notes as against defendants, but no recovery could be had against D.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Alfred H. Wildman against John Yan Gelder. From an order vacating an attachment plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Alexander R. Brown against Christopher B. Keogh. Prom an order denying a motion to vacate an attachment defendant appeals.</p>

<p>Directing Verdict—Request by Both Parties.</p> <p>Where each party asks for the direction of a verdict in his favor, authority is thereby given the trial judge to determine all questions of fact, as a jury could have done.</p>

Action by Hyman Schnitzer against Sabina E. Husted and Peter V. Husted on two promissory notes made by Sabina E. Husted to Peter Y. Husted, as follows: “$500. New York, Apr. 15, 1889. “Four months after date, I promise to pay to the order of P. Y. Husted five hundred dollars, at the New England Hotel, 30 Bowery; and it is hereby agreed that this note shall be chargeable to my separate estate, which has received the benefit thereof. Yalue received. S. E. Husted.” “$400.

Action by Garfield National Bank against William L. Bostwick and another. In proceedings supplementary to an execution, an order was entered on the 13th day of March, 1891, extending the receivership of one Mynderse Van Cleef, who had theretofore been appointed by the supreme court in an action in Tompkins county, which order of extension required him to give additional security in the sum of $800.

<p>Excessive Damages.</p> <p>Where the evidence in an action for personal injuries shows that plaintiff, a tailor, was a married man, and worked for himself; that his leg was broken, on account of which he was obliged to stay in the hospital eight weeks; and that at the time of the trial he still suffered pain, and was unable to work,—a verdict for $350 will not be disturbed as excessive.</p>

<p>1. Evidence—Admissions—Offer to Compromise.</p> <p>Evidence that pending the action defendant offered to pay a certain sum in settlement of the dispute is not admissible.</p> <p>3. Same—Records—Authentication.</p> <p>It is error to admit in evidence for the purpose of affecting defendant’s credibility a paper described by counsel offering it as the record of the conviction of defendant of larceny, unless the genuineness of the record is established by competent evidence.</p>

Action by Charles Y. Austin, administrator of Walter C. Austin, deceased, •against the Staten Island Rapid-Transit Railway Company. Prom a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Henry B. Sire against George W. Bumbold and George Walter Bumbold, to recover a balance of rent alleged to be due under a lease in writing; the defense being that, in consideration of the execution of the lease by the defendants, the plaintiff, by a contemporaneous verbal understanding, had agreed to accept a lesser rent than that reserved, until the completion of certain alterations in the demised premises which plaintiff had agreed to make..

Action by George M. 0. Byers, as assignee of Franklin B. Torrey, against David S. Tuska. The following opinion was filed by Jeroloman, J., in the •district court: “This case is brought to recover $127.10 on an alleged stock transaction.

Action by Patrick J. McPhillips, administrator of John B. McPhillips, deceased, against the Yew lork, New Haven & Hartford Railroad Company, to recover damages for the death of plaintiff’s intestate alleged to have been-caused by defendant’s negligence. The case was tried three times.

<p>Slander—Mitigation op Damages—Words Spoken in Anger.</p> <p>To say concerning plaintiff, “You are an Irish whore, ” is actionable per se; and it is no defense that the words were spoken in anger, and without any intention to ■ impute to plaintiff a want of chastity, though such facts may be shown in mitigation of damage.</p>

<p>Landlord and Tenant—Incidents to Lease—Water.</p> <p>A lease of a portion of certain premises “to be used as a bakery” includes the right to water as incidental and necessary to the business of a bakery; and the landlord, having permitted the lessee to connect the leased part of the premises with the water-main in the part not leased, will be enjoined from afterwards cutting oS such connection.</p>

<p>Appeal—Review—Weight op Evidence.</p> <p>A verdict rendered on conflicting evidence will not be disturbed on appeal.</p>

<p>Master and Servant—Dangerous- Machinery.</p> <p>A servant who is injured while operating a machine which he had used for six weeks, a sufficient time to acquire knowledge of its management, and the dangers of the machine are apparent, cannot recover from the master on the ground that the machine should have been provided with a guard.</p>

. Action by Frank Baylis, an infant, against the Schwalbach Cycle Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Katie Healey, an infant, against the Hart Bagging Company. There was a judgment for plaintiff, and defendant appeals.</p>

<p>Master and Servant—Defective Appliance—Evidence.</p> <p>Plaintiff, a boy employed to do general work in defendants’ shops, was ordered by the foreman to wipe off a shaft from which oil was dripping. Not finding any cotton “waste, ” the foreman directed plaintiff to use an old bag, and while so engaged the bag and plaintiff’s arm were drawn into the machinery. Plaintiff could not explain how the accident happened. There was evidence that cotton “waste” was the best thing to use for such purposes, being fibrous and absorbent. Held, that the evidence was not sufficient to take the case to the jury, and the complaint should have been dismissed.</p>

Action by Rufus L. Todd, executor of Mary L. Todd, deceased, against the Union Dime Savings Institution of the City of New York. Plaintiff appeals from a judgment for defendant entered on trial by the court without a jury. For former report, see 118 N. Y. 337, 23 N. E. Rep. 299.

Action by William D. Briggs against.Cflsper Lawson to recover upon a contract. There was judgment for defendant upon a counter-claim, and the plaintiff appeals.

. A claim presented by Frank W. Harris against the estate of his deceased wife, Carrie W. Harris, having been rejected, the claimant now appeals.

<p>Appeal from special term.</p> <p>Action by Albert C. Smith against Herbert J. Fowler. From an order dismissing an attachment theretofore granted, plaintiff appeals.</p>

<p>Appeal from Kings county court.</p> <p>Action by James F. Gillen against Hamlin Babcock. There was a judgment for plaintiff, and defendant appeals.</p>

<p>On motion for reargument. See 12 N. Y. Supp. 52.</p>

<p>Appeal from circuit court, Westchester county.</p> <p>Action by the board of health of the village of New Bochelle against Eugenia Valentine to recover a penalty imposed by plaintiff for non-compliance-with its regulations, and for failing to abate a nuisance. There was a judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Queens county court.</p> <p>Action by William. Watson against Albert Benz. From a judgment for defendant, plaintiff appeals. For former reports, see 12 N. Y. Supp. 51; 10 NT. Y. Supp. 799.</p>

Action by Maria Schwartz against the Woman’s Mutual Insurance & Accident Company of America. From order setting aside judgment entered as of default, and compelling plaintiff to receive defendant’s answer, plaintiff appeals.

<p>On motion for reargument. For former report, see 12 H. Y. Supp. 923.</p>