Volume 140 — New York Appellate Division Reports

Appeal by the defendant, The New York Central and Hudson River Railroad Company, .from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 6th day of May, 1909, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 6th day of July, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Central Star Laundry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 1st day of February, 1910, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 24th day of January, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Corning, from two separate orders of the Supreme Court, one made at the Steuben Special Term and the other at the Monroe Special Term, and entered in the office of the clerk of the county of Steuben on the 21st day of February, 1910, and the 25th day of March, 1910, respectively, denying two separate motions to set aside a judgment.

<p>Appeal by the defendant, Leffler, Thiele & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of October, 1909, upon the report of a leferee to hear, try and determine.</p>

Appeal by the defendant, The West End Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 17th day of December, 1909, upon the verdict of a jury rendered by direction of the court, and also from two orders entered in said clerk’s office on the 17th and 30th days of December, 1909, respectively, denying motions for a new trial.

Cross-appeals by the petitioner, Clark H. Hammond, as corporation counsel, and the defendants, George A. Ricker and others, constituting the municipal civil service commission, and another, from parts of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 9th day of March, 1910, granting in part and denying in part a motion for a peremptory writ of mandamus commanding the defendants to reclassify…

Appeal by II. Aider! Nichols, as commissioner of elections of Monroe county, from an order of the Supreme Court, made at chambers in the city of Rochester, N. Y., and entered in the office of the clerk of the county of Monroe on the 15th day of April, 1910, directing the commissioner of elections to correct the official and sample ballots for certain elections.

Appeal by the defendants, .David E. Barrows and others, composing and constituting the board of water commissioners, and another, from a judgment of the Supreme Court in favor of the relators, entered in the office of the clerk of the county of Cattaraugus on the 5th day of October, 1909, upon the decision of the court, rendered after a trial at the Erie Special Term, granting the relators’ motion for a peremptory writ of mandamus, and also .from an order made on the 17th…

<p>Crime — extortion — threat to charge crime of adultery — such crime is felony.</p> <p>One who attempts to extort money from another by a verbal threat to accuse him publicly of the crime of adultery is guilty of a felony rather than of a misdemeanor.</p> <p>Hence, one arrested on a bench warrant upon an indictment for extortion is not entitled to a discharge upon habeas corpus upon the ground that he was already under arrest on a warrant of a police justice for a misdemeanor in committing the same act.</p> <p>The crimes of extortion and blackmail distinguished, per Williams, J. McLennan, P. J., aud Robson, J., dissented.</p>

<p>Appeal by-the-defendant, Leonard H. Groesbeck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 10th day of September, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of September, 1909, denying the defendant’s motion for a.new trial made upon the minutes.</p>

<p>Contract — agreement to manage corporation — breach — action for damages.</p> <p>Action to recover damages for breach of contract. The defendant who was experienced in the business of manufacturing macaroni induced the plaintiff to purchase an interest in his business with the understanding that a corporation was to be formed in which the plaintiff should own approximately a third interest. The defendant was to be president and manager of the corporation and the plaintiff its secretary and treasurer, the defendant agreeing that if' illness or other cause should compel him to give up the business he would provide a person fully as competent as he to take his place. After the organization of the corporation and while the manufacture and sale of macaroni was being carried on successfully, the defendant left the business under the pretense that he was ill-and installed his brother as manager. Shortly thereafter hp began to erect a large plant for the manufacture of macaroni in close proximity to the other factory and on the completion of the new plant undersold the product of the other corporation so that its business was ruined.</p> <p>Held, that the plaintiff was entitled to recover for breach of contract;</p> <p>That the action was not one brought by a stockholder against another stockholder to recover for corporate losses, but upon the contrary was based upon the written contract fixing the rights of parties, which agreement survived the formation of the corporation.</p>

Appeal by the defendant, The Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of ’the clerk of the county of Steuben on the 24th day of January, T910, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 23d day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.

-Appeal by the defendants, Herman Bernhardt and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8tli day of October, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9th day of October, 1909, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the City of Dunkirk, froma judgment of the Comity Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of December 1909, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 20th day of November, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Robert W. Henson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 25th day of April, 1910, upon the report of a referee.

Appeal by the defendants, Thomas Williams and others, Republican members, etc., from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 10th day of March, 191Ó, directing that certain portions of the return made by them as respondents to a writ of certiorari be stricken from said return.

Appeal by the defendant, The City of Niagara Falls in the State of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in .the office of the clerk of the county of Niagara on the 21st day of February, 1910, upon the verdict of a jury rendered by direction of the court after a trial at the Niagara Trial Term.

<p>Pleading—demurrer for misjoinder of plaintiffs — waiver — railroad — negligence — fire caused by sparks from locomotive — evidence — condition of other locomotives owned by defendant — damages — when special findings proper.</p> <p>Where a misjoinder of parties plaintiff appears upon the face of the complaint, the objection must be taken by demurrer or it is waived.</p> <p>Action to recover damages for the destruction of buildings by fire alleged to have been caused by sparks from the defendant’s locomotive. Evidence examined, and held, to warrant the jury in finding the defendant negligent in allowing-the spark arrester of the locomotive to becomé out of condition.</p> <p>In such action a plaintiff who charges negligence upon the claim that the spark arrester on the defendant’s locomotive while originally of proper construction had been allowed- to become out of repair, canpot give evidence that other engines of the defendant emitted sparks large enough to cause such fire.</p> <p>In ruling upon the admissibility of such evidence a distinction must be made between a case where the spark arresters are in good repair but are of improper construction and a case where the arresters were properly constructed but have become out of repair.</p> <p>It seems, that where the original fire spread to several other buildings owned by the plaintiff, the trial judge on the question of damages may direct the jury to make special findings as to the value of the several buildings in order that the appellate courts, in case of an appeal, may adjust the judgment in accordance with the defendant’s liability.</p>

Appeal by the plaintiff, Mandel Gold, from a judgment of the Supreme Court in favor of the defendant, entered in the clerk’s office of the county of Schenectady on the 13th day of March, 1908, upon the verdict of a jury rendered after a trial at the Schenectady Trial Term, and also from an order entei'ed in said clerk’s office on the 10th day of March, 1908, denying the plaintiff’s motion for a new trial made upon the minutes. The action was for false imprisonment. .

Cboss-appeals by the defendants and the relators in each of the above-entitled proceedings from a final order of the Supreme Court, made at the Chenango Special Term and in each case entered in the office of the clerk of the county of Tioga on the 14th day of April, 1910, the defendants’ appeals being from the whole of such orders respectively, and the relators’ appeals being from certain parts thereof.

<p>Insurance — extension of policy by acceptance of premium note—failure to give notice of maturity—application of reserve to extension of policy—when demand not necessary — failure to.pay premium note—• liability of insurer where policy is continued by excess of reserve over premiums due.</p> <p>A life insurance company which accepts a premium note in payment of an annual premium under an agreement that the policy shall become void if the note is not paid at maturity, after having given notice of the date when the premium fell due, pursuant to section 93 of the Insurance Law, is not obliged to give a similar notice respecting the maturity of the note in order to declare a forfeiture of the policy.</p> <p>Where an insured died within six months after his policy lapsed, the beneficiary is entitled to the protection of section 88 of the Insurance Law, which provides for the continuation of the policy for such period of insurance as may be purchased by any reserve, without making the demand mentioned in said statute or exercising the option to continue the policy for said period or to purchase paid-up insurance. A demand and an exercise of the 'option provided for by the statute is necessary only where the insured lives for the six months following the forfeiture.</p> <p>Where a three months’ note accepted by an insurer in payment of an annual premium provided that the policy should lapse if the note were not paid at maturity, but in that case the insured should pay the defendant “ at the rate of premium stated in said policy for the insurance from the date when the premium fell due to the time when said policy ceased to be in force,” the insured was not indebted to the insurer for the face value of the note on failing to pay the same at maturity. He was indebted only for the pro rata premium during the time the policy was extended by the credit given.</p> <p>Hence, where the insured died within six months after the maturity of the note, his beneficiary is entitled to receive the insurance, if, on deducting from the reserve on said policy the premium due for the period it was extended by the acceptance of the note, there remained enough reserve to purchase a continuing insurance, pursuant to section 88 of the Insurance Law, from the time the annual premium became due until after the death of the insured.</p> <p>Smith, P. J., and Houghton, J., dissented.</p>

Appeal by the defendant, George W. Evans, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 14th day of November, 1908, upon the verdict of a jury for $350, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Antoine Scherno and another, from a judgment of the County.Court of Clinton county, rendered on the 15th day of September, 1909, affirming a judgment of the City Court of the city of Plattsburgh, rendered on the 26th day of July, 1909, convicting the defendants of being disorderly persons.

<p>Appeal by the plaintiff, Melvin Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Warren on the 9tli day of November, 1909, upon the verdict of a jury, rendered by direction of the court, dismissing the complaint herein.</p>

Appeal by the defendant, Joseph A. Powers, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county .of Bensselaer ou the 15th day of August, 1910, upon the decision of the court, rendered after a trial at the Bensselaer Special Term, overruling the said defendant's demurrer to the complaint; -also from an order entered in said clerk’s office on the 12tli day of August, 1910, as amended by an order…

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff and against the said defendant, rendered on the Utli day of January, 1910.

Appeal by the defendant, the H. C. & A. I. Piercy Contracting Company, from a judgment of the Municipal Court in favor of . plaintiff, and from an order denying a motion for a new trial,

<p>Appeal by the defendant, Charles H. Karutz, as executor, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 8th day of February, 1910»</p>

Appeal by the plaintiff, Elizabeth' C. Riker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 29th day of October, 1909, upon the decision of the court, rendered after a trial at the Orange Special Term, dismissing the complaint upon the merits.

<p>Negligence—failure to provide fire escapes on factory — liability of lessee.</p> <p>One who leases a building three or more stories high to be used as a factory and fails to equip it with fire escapes as required by sections 82 and 88 of chapter 415 of the Laws of 1897, is liable to the estate of an employee who was burned to death owing to the absence of fire escapes. ■</p> <p>Whatever may be the liability of the lessor of such building, a lessee who uses it for manufacturing is within the purview of the statute as it is his act which makes it a factory.</p>

<p>Appeal by the contestants, Rosalie A. Avery and others, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court, on the 29th day of April, 1910, admitting to probate the will of Charles Ferdinand Hoffman, deceased, and a codicil thereto, and construing the provisions thereof.</p> <p>The opinions of the surrogate are reported in Matter of Hoffman (65 Mise. Rep. 126 ; 67 id. 334).</p>

Appeal by the defendant, James Burrell, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 17th day of March, 1910, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 18th day of April, 1910, denying the said defendant’s motion for a new trial made upon the minuues.

<p>Pleading — complaint stating action of ejectment — practice — motion for judgment on pleadings after demurrer — terms.</p> <p>Complaint in an action for ejectment brought against an heir who refused to recognize the plaintiff’s title acquired by a conveyance from an executrix under a power of sale examined, and held, to state a cause of action.</p> <p>Where a defendant having demurred moves for judgment on the pleadings, the complaint must be deemed to allege whatever can be implied from its statements by fair and reasonable intendment.</p> <p>It seems, that where on such motion the complaint is sustained, leave to the defendant to plead over should only be granted upon terms.</p>

Certiorari issued out of the Supreme Court and attested on the 18th day of January, 1910,- directed to William F. Baker, police commissioner of the police department of the city of New York, directing him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had with reference to the dismissal of the relator from the police force of the city of New York.

<p>Sale — caveat emptor — rescission of sale — direction to destroy goods— when purchase price cannot be recovered.</p> <p>Where there is no warranty on the sale of a horse, the rule of caveat emptor applies and the sale is valid although the animal is diseased.</p> <p>Where the purchaser of a horse sold without warranty informed the seller that the animal was incurably diseased, and the seller thereupon refunded the purchase price and directed the buyer to destroy the animal, he cannot recover the consideration returned although the buyer, on discovering that the horse was not diseased, sold it to a third person, if there was no fraud in the transaction. Woodward, J., dissented.</p>

<p>Appeal by the plaintiff, Charles H. Pond, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of June, 1910.</p>

<p>Appeal by the defendant, Andrew Cuneo, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 24th day of January, 1910, overruling as frivolous the amended answer of the said defendant and directing judgment thereon against him.</p>

Appeal by the defendant, the J. D. Loizeaux Lumber Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of June, 1910, denying the defendant’s motion to cancel and set aside the notice of pendency of action theretofore filed herein,

<p>Food — sale of oleomargarine manufactured to imitate butter — constitutional law — police power — pleading— complaint stating action to recover penalty.</p> <p>While the sale of oleomargarine cannot be prohibited without an invasion of constitutional rights, a statute (Agricultural Law, §§ 30, 38), prohibiting the manufacture of oleomargarine so as to imitate dairy butter by the introduction of foreign substances is constitutional.</p> <p>The complaint in an action to recover a penalty for a violation of said provisions of the Agricultural Law must allege with reasonable precision that the oleomargarine was made in imitation or semblance of natural butter.</p> <p>Pleadings in an action for a statutory penalty are strictly construed.</p> <p>A complaint in such action which alleges in substance that the oleomargarine sold, being made of animal fats, etc.,' was “mixed or compounded with * * * milk, cream or butter * * * so as to make it an article or substance or human food in imitation or in semblance of butter,” states a cause of action to recover the penalty.</p>

Appeal by the defendant, Joseph A. Boyce, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff and against the said defendant, rendered on the 15th day of March, 1910.

Appeal by the plaintiff, Julia Beregszazi, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 8th day of October, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Richmond Trial Term.

<p>Water and watercourses—title to lands beneath, waters of Jamaica bay — title in sovereign and its grantees.</p> <p>The land granted to Jamaica under the Nicolls patent of 1666 and the Dongan patent of 1686 was bounded on the south by Jamaica bay instead of by the open sea, so that the lands below mean high water in Jamaica bay north of Rockaway.Neck remained in the sovereign and in its successor, the State of New York, and the title to such lands granted to the Rockaway Park Improvement Company by the State in the year 1899 is superior to that of the city of New York claiming under said Nicolls and Dongan patents.</p> <p>A title to such lands derived from the State is superior to the title of the city of New York claiming under the said Nicolls patent of 1666 and the Dongan patent of 1686, although the southern boundary of the tract thereby conveyed is stated to be “ the sea,” those words being used to describe Jamaica bay instead of the ocean.</p> <p>The fact that Jamaica had no title to the lands beneath Jamaica bay is shown by the agreement between Jamaica and Hempstead settling the boundary line made in 1684 before the Dongan patent with Jamaica wherein it is stated that Jamaica has “no pretence to Rockeway Neck that is Jameca,” and also by the fact that the State has made many grants of land beneath the water of Jamaica bay and has always asserted ownership thereof.</p> <p>As a usual rule a grant by the sovereign of land on tide waters extends only to the high-water mark, but such presumption gives way where a grant to the low-water mark is expressly made.</p>

Appeal by the defendant, Cecelia T. Caren, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Orange on the 19th day of November, 1909, upon the report of a referee.

Appeal by the plaintiff, Martin Schaefer, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 23d day of September, 1909, upon the decision of the court, rendered after a trial at the Kings County Trial Term, the jury having been discharged, dismissing the complaint upon the merits.

Appeal by the defendant, Agnes Shay, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 28th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Brooklyn Taxicab Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 17th day of February, 1910.

<p>Appeal by the defendant, Henry J. Furlong, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 2d day of March, 1910, upon the verdict of a jury, after a trial at the Kings County Trial Term, convicting the defendant of the crime of asking for and agreeing to accept a bribe.</p>

Appeal by the defendants, The Trustees-of the Leake & Watts Orphan House in the City of New York, from a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of February, 1910, with notice of an intention to bring up for review three orders entered in said clerk’s office on the 15th day of February, 1905, the 17th day of March, 1908, and the 20tli day of May, 1909,…

<p>Appeal by the plaintiff, John L. Travis, from a judgment of the Supreme.Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 5 th day of March, 1910, upon the decision of the court, rendered after a trial, at the Westchester Special Term, dismissing the complaint upon the merits as to said defendants.</p>

Appeal by the plaintiff, Harry W. Putnam, from a judgment of the Supreme Court in favor of the defendant Siravo, entered in the office of the clerk of the county of Richmond on the 25th day of March, 1910, dismissing the complaint after a trial at the Richmond Special Term.

<p>Submission of controversy — facts agreed upon. controlling — will — charging real estate with payment of general legacies — intention governs — presumption — circumstances not showing intention. •</p> <p>On the submission of a controversy on an agreed statement of facts the court is confined to the facts which appear in the agreed statement; it cannot consider statements of fact appearing only in the briefs of the respective parties.</p> <p>It is a general rule that where the personal estate is insufficient to pay general legacies they abate proportionately, and no recourse can be had to the real estate to make up the deficiency unless the will indicates an intention on the part of the testator that the real estate be so charged.</p> <p>But in determining the intention of the testator the court may consider not only the words of the will itself, but may weigh such words in the light of the circumstances existing when the will was made.</p> <p>It seems, that the courts are more ready to charge general legacies upon lands where the legatees are of the blood of the testator so as to be presumed to be the natural objects of his bounty; the tendency is less strong where the legatees are strangers in blood.</p> <p>Where general legacies were made at a time when the testator knew that his personal estate was insufficient to pay them in full, it is presumed that he intended to charge the legacies upon his real estate as otherwise the gift would be a mere trick upon the legatees. But there must be satisfactory evidence that the testator knew that his personal estate was insufficient.</p> <p>Where at the time a will was made the testator was a physician with an extensive and lucrative practice, but owing to his subsequent illness, the expenses thereof and to his inability to pursue his profession the personal estate was insufficient to pay general legacies in full, there is no presumption that he intended to charge the legacies upon the real estate.</p> <p>Jenks, J., dissented.</p>

Appeal by the defendants, Albert Halpern and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 23d' day of February, 1910.

Appeal by The City of New York from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 17th day of May, 1910, awarding compensation to the respondents, commissioners of appraisal in condemnation proceedings, prior to the making and confirming of a report.

<p>Appeal by the plaintiffs, Robert K. Richards, individually, etc., and another, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 24th day of May, 1909, upon the decision of the court rendered after a trial at' the Queens County Special Term.</p>

Appeal by .the defendant, the Erie Railroad Company, from so much of an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 28th day of March, 1910, as denies the defendant’s motion for a bill of particulars as to three matters alleged in the complaint.

<p>Appeal by the petitioner, Maynard N. Clement, as State Commissioner of Excise, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the ■clerk of the county of Kings on the 23d day of May, 1910, denying the petitioner’s motion to revoke and cancel a liquor tax certificate issued to the respondent.</p>

Appeal by the plaintiff, Mary Cochrane McNair, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4tli day of August, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term.

• Certiorari issued out of the Supreme Court and attested on the 19th day of June, 1909, directed to Walter II. Brewster and others, constituting the board of supervisors of the county of Orange, commanding them to certify and return to the office of the clerk of the county of Orange all and singular their proceedings had in regard to the auditing of a certain bill of the relator.

Appeal by the plaintiff, Mary Y. M. Zint,. from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Orange on the 14th day of February, 1910, denying the plaintiff’s motion for a new trial.

Appeal by the plaintiff, Henry O. Seidenburg, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 19th day of November, 1909, denying the plaintiff’s motion to compel the specific performance by the purchaser of a contract for the sale of real property.

Appeal by the defendant, William A. Prendergast, as comptroller, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of April, 1910, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the New York Terminal Company' from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of August, 1910, granting a petition of the city of New York for the appointment of commissioners of estimate in a proceeding to acquire lands. >

Appeal by the defendants, John Heiselman and Annie Heiselman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of July, 1910, denying the said defendants’ motion for judgment on the pleadings.

Appeal by The City of Helv York from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of June, 1910, denying the appellant’s application for the removal of the commissioners of appraisal herein.

Appeal by the defendant, Frank Darmstadt, from part of an order of the County Court of Kings county, entered in the office of the clerk of said county on the 28th day of June, 1910, resettling a case on appeal.

Appeal by the plaintiff, Rachel Uttal, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of June, 1910, denying the plaintiff’s motion to punish defendant for contempt.

Appeal by Hannah J. Pierce from an order of - the Supreme Court, made at the Westchester. Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of April, 1910.

Appeal by the plaintiff, Louis Linick, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 14th day of December, 1909, dismissing the plaintiff’s complaint.

Appeal by the defendants, Louis Levine and another, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of March, 1910, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiffs, rendered on the 30th day of October, 1909, in an action upon a third party bond given, in attachment proceedings.

Appeal by Michael J. Mulqueen and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of March, 1910, confirming the report of a referee canceling a notice of lien for professional services.

<p>Cross-appeals by the plaintiff, Edward T. Bedford, and the defendant, The Hol-Tan Company, from an order of the Supreme Court, made .at the New York Special Term .and entered in the office of the clerk of the county of New York on the 3d day of August, 1910, setting aside the report of a referee.</p>

Appeal by the defendant, the Trenton Whisk Broom Works, Inc., from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 23d day of August, 1910.

Appeal by the plaintiffs, Charles B. Knapp and another, from a judgment of the Supreme Court in favor of the defendant, entered .in the office of the cleric of the county of New York on the 5th day of November, 1909, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits in an action to quiet title.

Appeal by the plaintiff, Beba Lawson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of July, 1910.

Appeal by the defendant, Rachel S. Beston, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1910, denying the defendant’s motion, to vacate an order for her examination before trial.

Appeal by the defendant, Charles T. Wills, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the. clerk of the county of New York on the 17th day of May, 1910, denying the defendant’s motion for a further bill of particulars.

Appeal by plaintiff, Isaac bT. Miller, from an order of the Supreme Court made at the blew York Trial Term and entered in the office of the clerk of. the county of blew York on the 23d day of May, 1910, denying an application 'to. restore the cause to the special calendar for trial.

Appeal by the plaintiff, Leo Stein, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 16th day of May, 1910, denying the plaintiff’s motion to compel the defendant to accept a bill of particular served in compliance with an order directing service thereof.

Appeal by the defendant, the Western New York and Pennsylvania Traction Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk'of the county of New York on the 21st day of June, 1910.

<p>Husband and wife — divorce — alimony pendente lite — proof of valid marriage essential.</p> <p>A wife suing for divorce will be denied counsel fees and alimony pendente lite where it appears that at the time of the marriage she was prohibited from marrying by a former decree of divorce rendered against her in this State, and the second husband to ber knowledge had a wife then living.</p> <p>Under such circumstances the plaintiff’s marriage was void ab initio, and a valid marriage is the basis of an order for alimony pendente lite.</p> <p>A plaintiff cannot base her right to alimony upon a common-law marriage where the complaint alleges only a ceremonial marriage and the parties have not been living together for over ten years prior to the action.'</p> <p>A plaintiff moving for counsel fees and alimony pendente lite is under the burden of showing the facts which entitle her thereto.</p>

<p>Appeal by the defendants, The American Bottlers’ Publishing Company and others, from a. judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 28tli day of January, 1910, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 1st day of February, 1910, denying the defendants’, motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Yetta Bernstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of July, 1910, denying the plaintiff’s motion to vacate an order for the examination of a witness before trial.

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

<p>Appeal by the defendant, the Metropolitan Fireproof Storage Warehouse Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6tli day of June, 1910, denying the defendant’s motion for a further bill of particulars.</p>

Appeal by the plaintiff, Benjamin Tuska, from an order of the Supreme Court, made at the New York Special Tez-m and entered in the office of the clerk of the county of New York on the 16th day of June, 1910, denying the plaintiff’s motion to vacate an ex parte order extending the respondent’s time to answezt

Appeal by the defendant, Louis Polansky, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of August, 1910, adjudging the said defendant guilty of contempt of court and imposing a fine.

<p>Attorney at law disciplined.</p> <p>Attorney at law disciplined by suspension from practice for one year for unprofessional conduct in unlawfully inducing another to evade service of a subpoena for which misdemeanor he was convicted and sentenced by a Federal cóurt, for making false statements in order to deceive the court into believing that certain books of a corporation could not be produced, and for refusing to testify before a grand jury as to the affairs of a corporation of which he was a director upon the claim that the matters related to a confidential communication with a client.</p> <p>The conviction of an attorney at law of a misdemeanor does not of itself work a disbarment as is the case where he is convicted of a felony.</p> <p>Laughlin, J., dissented in part, voting for disbarment.</p> <p>Proceeding to discipline an attorney.</p>

<p>Motion to dismiss an appeal from a final order confirming the report of commissioners appointed to condemn the lands of- the respondents.</p>

<p>Negligence — injury to trespasser by hay thrown from loft — defendant liable for wanton injury only — facts not showing negligence or wanton injury.</p> <p>In an action to recover for personal injury received by a minor who while standing upon a portion of the defendant’s lands not used by the public and adjoining the defendant’s stable was injured by a bale of hay thrown by the defendant’s servant from an opening in the hayloft above, that being the only opening from which hay could be lowered, it is error to charge that the jury may render a verdict for the plaintiff based on the negligence of the defendant.</p> <p>As the plaintiff, who came to visit his father who worked for the defendant, was a mere licensee, the only duty of the defendant was to abstain from inflicting intentional, wanton or willful injury.</p> <p>Where in such action it appeared that the plaintiff’s father told him to leave the stable so as not to get covered with dust which came from above where the defendant’s servant was handling the hay, and, after the plaintiff left, called to the defendant’s servant to throw down the hay, which he did after shouting, Look out down below,” the defendant.cannot be charged with wanton injury. Evidence in an actión to recover for injuries so received examined, and held, that in any event the plaintiff did not establish the negligence of the defendant. Ingraham, P. J., and Dowling, J., dissented, with opinion.</p>

Appeal by the defendant, William Richardson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of October, 1910, denying the defendant’s motion to vacate an execution.

<p>Appeal by the defendant, J. Eiddle Goffe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 25th day of March, 1910, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 22d day of March, 1910, denying the defendant’s motion for a new trial, with notice of an intention to bring up for review an order entered on the 5th day of January, 1910, denying a motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of April, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Motion by the defendant, The Union Central Life Insurance Company, for a new trial upon a case containing exceptions, ordered to be heard' at the Appellate Division in the first instance, after a trial at the New York Trial Term in May, 1910, which resulted in a verdict of a jury rendered by direction of the court in favor of the plaintiff.</p>

Appeal by the defendant, The Boston and Bolivia Rubber Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1910.

Appeal - by the plaintiff, Robert F. Tysen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡New York on the 23d day of June, 1910,-upon the decision of the court, rendered after a trial at the ¡New York Special Term, dismissing the complaint.

Appeal„ by the defendant, Dayton P. Tanner, from a judgment of the Supreme Court in favor of the plaintiff, entered in thp office of the clerk of the county of Hpw York on the 11th day of February, 1910, upon tlie verdict of a jury, also from an order entered in said clerk’s office on tlie 14th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 25th day of May, 1910, denying a motion for a new…

<p>Railroad—negligence — injury to employee working beneath" elevated railroad — injury to suspended scaffold by passing vehicle — incompetency of fellow-servant — erroneous charge.</p> <p>In a common-law action against an elevated railroad brought by a servant who while working in a canvas scaffold suspended beneath the structure was injured by reason of the fact that the canvas was torn by a passing truck so that he was precipitated to the street, it is error to refuse to charge that there is no proof that a person stationed in the street by the defendant to warn vehicles not to pass under the scaffold was incompetent where there is no proof of incompetency whatever save that in the single instance when the accident occurred he failed in his endeavor to induce the truck driver to avoid the scaffold.</p> <p>As the action is at common law the person stationed to warn vehicles was the fellow-servant of the plaintiff, and proof of a single act of casual negligence does not per se tend to prove that he was so. careless and imprudent as to be unfitted for the position.</p> <p>•Moreover, a master cannot be charged with negligence in employing an incompetent fellow-servant in the absence of proof of any specific acts of incompetency of which the master knew or ought to have known.</p> <p>If the accident was caused by the recklessness or mismanagement of the truck-man in refusing to accede to the watchman’s attempt to induce him to avoid the scaffold, the railroad cannot be charged with negligence in failing to provide additional watchmen.</p>

<p>Arbitration—revocation before final submission of controversy.</p> <p>Evidence respecting an arbitration field pursuant to the provisions of the Code . of Civil Procedure examined, and held, that the arbitration was'not closed and the rights of the parties finally submitted at the time when the award was made, but that on the contrary the appellant from the j udgment entered thereon -was at the time of the award entitled to produce further proof in his favor so that his notice of revocation served before the meeting at which the award was signed was effective.</p>

<p>Appeal by The New York Trust Company from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 18th day of June, 1910, settling the account of the executrix herein.</p>

Appeal by the defendant, Alfred P. Gardiner, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county of New York on the 28th day of January, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, referring certain issues and directing that an account be taken.

<p>Elections — oaths of temporary and permanent chairmen—proof of acknowledgment.</p> <p>Where the minutes of a political convention state that the temporary and permanent chairmen had taken their oaths of office and annexed thereto was the oath of each of said officers, sworn to on the day when the convention first met, and the nominations were not made until five days thereafter, the official certificate of the officer before whom the oaths were taken may be accepted as a compliance with the statute.</p>

<p>Elections — organization of convention — roll of elected, delegates prerequisite — nomination by persons not elected delegates.</p> <p>No political convention can be organized under the statute until the result of the primary election has been canvassed by the custodian of primary records and he lias prepared a list of the elected delegates and delivered it to the secretary of the political committee of the party participating in the primary election. The list so prepared is the roll of the convention.</p> <p>Where the members of the convention who made nominations were not the persons certified by the custodian of the primary records as the persons elected as delegates, the nominations are not regular and are not entitled to be placed upon the official ballot.</p>

<p>Election—-seating- delegates — powers of convention — review by court — order -that delegates be seated must be obeyed — order not open to collateral attack.</p> <p>- Under the statute a political convention has the right to decide all questions as to the delegates to that convention.</p> <p>But the Supreme Court has power to review the action of the convention in seating delegates, which review may be based upon such notice as the court shall direct.</p> <p>The court has jurisdiction to determine whether or not the act of the convention in changing delegates and seating other delegates was proper.</p> <p>Where the court has determined that a convention improperly refused to seat delegates and has improperly seated other delegates, theofficers upon whom the order is served are bound to obey it. Hence, where the other delegates have been seated pursuant to tbe'order of the.court, the acts of the convention cannot be attacked upon the ground that the order was obtained by fraud. Such order must be obeyed so long as it stands, even though it might have been attacked for collusion or fraud.</p> <p>Although two delegates seated by order of the court were improperly seated, the nominations made by the convention are not open to cóllateral attack on that ground.</p>

<p>Elections — organization of convention—filing minutes.</p> <p>While there are certain preliminaries necessary to the organization of a political convention, and these preliminaries must actually take place, the provision of the statute as to the filing of the minutes is merely directory.</p> <p>The fact that the minutes themselves were not filed .or that they did not show that the statutory requirements were complied with does not of itself make the nominations of the convention void if it appear by competent testimony that the necessary preliminaries actually took place.</p>

<p>Appeal from an order of the Supreme Court, made at the New York Special Term.</p>

<p>Evidence — when evidence rebutting testimony of one defendant not admissible as against codefendant.</p> <p>Where a city made codefendant with a municipal contractor in an action to recover for his negligence has rested its case on documentary evidence and produced no witnesses, it is error to admit, as against the city, evidence adduced by the plaintiff in rebuttal of testimony given by the contractor and bearing upon the usual method of doing the work and the usual precautions taken to guard the public against danger.</p>

<p>Injunction — stay pending appeal.</p> <p>Where an injunction restraining the defendants from rendering services to persons other than the plaintiff has been-granted by final decree, an order made by another judge staying the enforcement of the injunction pending the decision of an appeal to the Appellate Division, without requiring security or imposing adequate terms, is an abuse of discretion.</p>

<p>Appeal by the defendant, Edward H. Titus, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of February, 1910, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, rendered on the 14th day of May, 1909.</p>

<p>■Appeal by the defendants, Samuel P. Blackburn and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of May, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, canceling and discharging as usurious and void plaintiff’s note for $10,000, and an agreement between the parties, and directing the defendants to retransfer to plaintiff an interest in certain ships and to render ari accounting.</p>

<p>Appeal by the defendant, Christian F. Dilg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 17th day of May, 1910, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.</p>

<p>Appeal by the defendants, diaries S. Levy and another, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of tbe county of New York on the 27th/ day of January, 1910, upon the decision of tbe court rendered after a trial at the New York Special Term.</p>

<p>Pleading—joinder of action for rent with action for partition — party — administratrix of deceased grantee — section. 484, Code of Civil Procedure, construed.</p> <p>An heir at law suing to partition lands devised by his'ancestor in a will, executed before he was born, he being neither mentioned nor provided for therein, or by any other settlement, can join a cause of action against the grantees of the devisee to recover rents, issues and profits of the lands collected and retained by them. Such recovery of rents is plainly contemplated by section 1589 of the Code of Civil Procedure although all the parties to the action are not interested in the question.</p> <p>The administratrix of a deceased grantee of the devisee may be made party defendant in such action under the authority of section 484 of the Code of Civil Procedure, for the claim for rent arises out of a transaction connected with the subject of the action, the subject being the real property involved.</p> <p>Section 484 of the Code of Civil Procedure regulating the joinder of actions should be so construed as to prevent a multiplicity of suits when such construction is permissible.</p>

Appeal by the defendant, the People’s Surety Company of New York, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1908, upon the verdict of a jury.

<p>Pleading — complaint in action to recover money loaned — necessary allegations ■— allegations showing debt due — mode of taking objection that action is premature—suit by executor against coexecutors — parties .defendant.</p> <p>The esséntial allegations of a complaint to recover money loaned are (1) the loan, (2) the promise to repay, and (3) non-payment. It is not necessary to allege a promise to repay at any particular date.</p> <p>Where a loan is made without an agreement as to date of repayment it is repayable at once, or whenever the lender makes demand. Demand before suit is , not necessary; the action itself is a sufficient demand.</p> <p>There is a sufficient allegation that moneys loaned are due where the complaint states that at the time of the death of the plaintiffs intestate and ever since “ there has been wholly due and owing ’’ from the defendant sums for which the suit is brought, .where other facts are stated from which the law implies a liability.</p> <p>Where a complaint sufficiently alleges facts showing an actual or'implied promise on the part of the borrower to pay, it is sufficient to allege that the amount is “due” at the time the action is brought, although a bare allegation that a sum is due will not justify the omission of allegations necessary to establish an indebtedness.</p> <p>Where an action for a debt is brought before the debt is due, the objection must be taken by answer; it cannot be raised by demurrer unless .the fact appears upon the face of the complaint.</p> <p>A suit in equity may be maintained by one executor against a coexecutor to obtain a decree establishing his indebtedness to the estate. It is not necessary that the plaintiff’s coexecutors be joined as parties plaintiff or that they be asked to join as such when it appears from the complaint that the coexecutors are under the control of the executor whose liability to the estate is sought ’ to be enforced and that they have been made defendants by reason of their hostility to the plaintiff.</p>

Appeal by the defendant, the Casein Company of America, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of ¡New York on the 28th day of June, 1909,. upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes in an action to recover damages for the breach of a contract.

Appeal by the plaintiff, James Hackett, from a judgment of the Supreme Court in favor of the defendant, entered in the.office of the clerk of the county of New York on the 24th day of February, 1910, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the New York Trial Term, the verdict of a jury for $4,000 theretofore rendered in favor of the plaintiff being set aside, and also from an order entered in said-clerk’s office on the…

Appeal by the defendants, William A. Webb and another, doing business under the firm name, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of'March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes.

<p>Will construed — words creating conditional fee rather than life estate.</p> <p>Action for the partition of lands which passed under a will containing the following provisions: "First. I give and bequeath to Susan Bray ® all my real estate, with the buildings and appurtenances, together with my burial plot in Bensonia Cemetery, ® * i:" together with my household furniture and wearing apparel, together with the sum of One thousand Dollars in cash, and the interest during the term of her natural life upon the moneys now invested in two certain mortgages upon real estate now held and owned by me * ® *, to have and to hold in her own right and to her own use so long as she may live single and unmarried, said money in said two mortgages to be kept on investment during the lifetime of said Susan Bray, she to receive all the interest and income thereof — and in case she shall marry again, then in that case all the property herein bequeathed to her shall revert to my Estate * * *. 2d. At the decease of the said Susan Bray, I direct that the moneys secured to be paid by the said two mortgages be distributed and given to my heirs at law.” By subsequent clauses of the will the testator made specific bequests to other persons and left the residuary estate to his heirs.</p> <p>Held, that under the 1st clause of the will Susan Bray received a fee in the testator’s real estate, conditioned upon a reverter should she remarry, rather than a life estate, and that the words creating a life interest related only to the mortgages.</p> <p>Ingraham, P.vJ., and Laughlin, J., dissented, with opinion.</p>

Appeal by the plaintiffs, Eustis L. Hopkins and others, as executors, etc., from a judgment of the Supreme Court in favor of the defendants,, entered in the office of the clerk of the county of New York on the. 9th day of August, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

<p>Elections — nominations, when complete — filing certificate.</p> <p>Under the Election Law the nomination for a public office becomes complete only upon the filing of the certificate of nomination with the proper officers. Until this is done the nominee does not become a candidate for the office.</p> <p>Scott and Miller, JJ., dissented.</p>

<p>Appeal by the defendant, Charles Lane, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27tli day of April, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiffs’ demurrer to the second affirmative defense contained in the defendant’s answer.</p>

Appeal by the defendants, Attilio J. 'Zampieri and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of December, 1909, upon the decision of the court rendered after a trial at the New York Trial Term,, certain questions having been submitted to the jury, and also from an order entered in said clerk’s office on the 17th day of December, 1909, denying the defendants’ motion for…

<p>Parent 'and child — habeas corpus to determine custody — practice — examination as to facts.</p> <p>On habeas corpus brought under section 70 of the Domestic Relations Law to determine the custody of a child as between parents living in a state of separation without divorce, the proceedings should be in conformity with the usual rules of practice governing such writ.</p> <p>On the production of the child before the court there must be an examination into the facts which the return sets forth as a reason why the custody should not be awarded to the relator. It is improper to award custody without such investigation.</p>

Appeal by the petitioner, the Royal Bank of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of June, 1910.

Appeal by Frederick W. Huber, ,Tr., and others, applicants, from an order of the Supreme Court, made at the New York Special Term* bearing date the 23d day of August, 1910, and entered in the office of the clerk of the county of New York, denying the applicants’ motion to be brought in as parties defendant.

Appeal by the defendant, Frederick W. Whitridge, as receiver, etc., from a judgment of the Supreme Court in favor of .the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of December, 1909, upon the verdict of a jury for $5,000; and also from an order entered in said clerk’s office on the 10th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Isaac Stern and others, copartners, composing the firm of Stern Brothers, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of New York on the 5th day of July, 1910, referring certain matters to a referee to take proof, which order was granted on the court’s own motion upon the petition of an assignee for the benefit of creditors praying for the advice, of the court.

Appeal by the defendants, Hathan Citron and another, copartners, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of April, 1910, reversing an order of the Municipal' Court of the city of New York, entered on the 20th day of December, 1909, which vacated and set aside the verdict of a jury in favor of the plaintiffs rendered by direction of the court in an action for rent.

<p>Attachment — sufficiency of moving affidavit —practice — supplemental . affidavit.</p> <p>The moving affidavit upon which an' attachment against a non-resident defendant was granted in an action for breach of a contract to dye furs for the plaintiff sufficiently states the method by which the plaintiff fixed the amount of damage where it enumerates the particulars in which a certain number of skins delivered to the defendant were damaged, to wit, that they were not dyed in a fast color, were burned and torn, contained black spots by reason of which they were unmerchantable, and that the plaintiff was damaged in the sum of seventy-five cents each.</p> <p>Moreover, where a motion is made by the defendant to vacate an attachment upon the ground that the method of computation of damages is not sufficiently alleged, the court should allow the plaintiff to file a supplemental affidavit if the alleged defects do not affect the jurisdiction, but merely goto the substance of the plaintiff’s case.</p>

<p>Corporations — chattel mortgage executed without authority from two-thirds of stockholders — defense available to corporation — when no estoppel.</p> <p>A stock corporation sued for goods to whi<fh the plaintiff claims the title under a chattel mortgage executed by the defendant, may take the defense that the mortgage, not being a purchase-mondy mortgage, was executed without the consent of two-thirds of the stockholders, evidenced in writing or by • vote at a special meeting called for that purpose, etc., as required by section 6 of the Stock Corporation Law.</p> <p>Such defense is available, not only to a stockholder or creditor, but to the corporation itself.</p> <p>The corporation is not estopped from asserting the defense on the theory that it cannot take advantage of its own wrong, or because it did not offer to return the consideration for the mortgage, where it does not appear that any consideration whatever was received by it.</p>

Appeal by the plaintiff, the O’Rourke Engineering Construction Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of January, 1910, upon the decision of the court, rendered after a trial at the New York Trial' Term, dismissing the complaint upon the merits, the parties having stipulated at the close of the evidence to submit all questions of law and fact to the court.

Appeal by Browning, King & 'Company, intervenor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of Hay, 1910, granting a peremptory writ of mandamus.

Appeal by the defendant, Conrad Hubert, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1910, denying the defendant’s motion to vacate an order for his examination before trial to enable plaintiff to frame a complaint.

<p>Appeal by the defendant, Michael Kwint, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of March, 1910, upon the verdict of' a jury for $1,200, a verdict for $3,500 having been reduced by consent, and also from an order entered in said clerk’s office on the 23d day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Parties—action, by settlor to set aside trust—judgment creditors of settlor — unlawful accumulation of income—payment of income on principal of mortgage — when valid and invalid portions of trust interdependent.</p> <p>Judgment creditors of the settlor of a trust who have brought a suit against her to have their judgments declared a lien upon lands which are part of the trust estate are not necessary parties to a suit brought by the settlor against her trustees and the beneficiaries to have the trust declared null and void.</p> <p>A conveyance of lands in trust to apply the rents and profits to the payment of the principal of mortgages on the lands creates an unlawful accumulation of income and is void under section 61 of the Real Property Law.</p> <p>Such trust -will be declared to be void in toto at the suit of the settlor, although the trust also provides that the net income, after deducting the sums paid on the mortgage, is to be paid to the settlor for life. The provision for the payment of the income to the settlor cannot be sustained on the theory that it is independent of the void portion of the trust, for the two are inseparably connected in that the amount payable to the settlor depends upon the amount the trustees in their discretion apply upon the principal of the mortgage. The entire trust is void even though the trustees exercised a power of increasing the capital by the application of income.</p>

Appeal by the defendant,. William A. Stenz, judgment debtor, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 20th day of July, 1910, denying the defendant’s motion to vacate an order which directed the issuance of an execution pursuant to .the provisions of section 1391 of the Code of Civil Procedure, and to set aside the execution issued pursuant to such order.

<p>Appeal by the plaintiffs, John S. Bioren and others, doing business under the firm name, etc., from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 18th day of August, 1910, vacating an order for the examination of the defendant Campbell.</p>

<p>Discovery — facts justifying discovery of books of stockbrokers acting with defendant in joint venture — allegations on information and belief.</p> <p>A defendant sued by the trustee in bankruptcy of a firm of stockbrokers to recover the purchase price of stock alleged to have been purchased by the insolvents for him, who shows that he was induced by the insolvents to become interested in a pool in which they were to represent him as agents; that he • was never informed and does not know of the operations of the joint venture save that a certain person was to purchase and sell stock on account of the members of the pool, and that it appears in a complaint of tire plaintiff against said person and others for an accounting of the profits that a certain number of shares were allotted to the insolvents as their share of the joint venture, which included the stock purchased for the defendant, is entitled to an inspection of the books of the insolvents to discover their transactions concerning the joint venture, the amount of stock they received and how it was divided in order to set up a counterclaim for his share of the profits, if any, in the joint venture.</p> <p>As the insolvents undertook to act as the defendant’s agent with respect to the joint venture, in which they also participated as joint venturers, they are under obligation to make full disclosure of all transactions had on his account . or affecting .it.</p> <p>Although the allegations respecting the keeping of said books and records are made upon information and belief, which ordinarily would be insufficient, it will be presumed that a firm of stockbrokers engaged in such enterprise kept records thereof, especially when it is not denied that they did keep them,</p>

Appeal by the defendant, the Improved Property Holding Company of New York, a corporation, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8tli day of June, 1910, upon the decision of the court, rendered after' a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.

Appeal by Lee W. Bennett from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 30th day of July, 1910, denying the appellant’s motion to vacate an order for his examination before trial.

Appeal by Joseph M. Gilbert from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of July, 1910, denying the appellant’s motion to vacate an order for his examination before trial.

<p>Application to discipline the respondent, an attorney and counselor at law.</p>

<p>Appeal by the defendant, Saliba T. Baroody, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of December, 1909, upon the verdict of jury rendered by direction of the court, and also (as stated in the notice' of appeal) from an order granting the plaintiff leave to amend the complaint.</p>

<p>Attorney at law disbarred.</p> <p>Attorney at law disbarred for filling in a paper bearing bis client’s signature with a general release of her cause of action, and for signing the name of another attorney to a consent to discontinuance without authority.</p>

Appeal by the defendants, Adolf Aspegren and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of September, 1910.

<p>Bankruptcy — when assignment by insolvent void — expenditures by assignee for benefit of bankrupt—sums paid to creditors’ attorney — dividends.</p> <p>Where within four months of the filing of a petition in bankruptcy the insolvent owing §2,900 to a copartnership and $1,600 to other creditors, and while , threatened with suit on an overdue note assigned all his property to an agent representing the firm without consideration, save that the firm placed certain money in the hands of their attorney from which he deducted his fee and expended the balance in paying an eight per cent dividend to the general creditors, the assignment is voidable by the trustee in bankruptcy either under subdivisions a and b of section 60 of the Bankruptcy Act or under subdivision e of section 67 of that act.</p> <p>But the assignees should be credited with sums paid to the insolvent’s landlord, to workmen, clerks and servants employed by him, and to other creditors, for the bankrupt’s estate benefited pro tanto.by such payments.</p> <p>But the assignees should not receive credit for a sum paid to their attorney where he acted only in their interest, nor should they be credited with a sum repaid to them by way of dividends upon their claim.</p>

Appeal by the plaintiff, Stephen A. MacMahon, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the' clerk of the county of New York on the 17th day of March, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Simon Heilbrunn, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the - 16th day of May, 1910, sustaining the defendant’s demurrer to the amended complaint.

Appeal by plaintiff, Ella H. A. Stevens, as executrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of March, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the supplemental complaint.

<p>Attorney at law disciplined — unprofessional conduct in allowing use of name by others.</p> <p>Attorney at law suspended from practice for one year and until reinstated by the court on proof of good behavior for executing a power of attorney, in consideration of money or property received, whereby he allowed certain employees of a corporation to write letters and sign his name as attorney for the purpose of collecting debts and transacting other legal business of the corporation.</p> <p>Although section 479 of the Judiciary Law only forbids an attorney at law from permitting another person, not his general partner or clerk, to sue out a mandate or prosecute or defend in his name, it is serious unprofessional conduct for an attorney to allow another to use his name to sign letters or communications threatening legal proceedings.</p> <p>The extreme penalty of disbarment is not imposed in this particular instance only because it is the first time that the offense has been brought to the attention of the court.</p>

<p>Crime — forgery, third degree—false entries in books of account — facts not justifying conviction — section 515, Penal Code, construed.</p> <p>There can be no conviction for forgery, third degree, in making false entries in a book of accounts contrary to section 515 of the Penal Code (Penal Law, § 889) on mere proof that a statement of the financial condition of a copartnership furnished by the defendants to a financial agency on which other persons gave credit contained a false statement of the amount of capital standing to the credit of one of the defendants. This is true, although the actual entry of the amount standing to the credit of such partner as made in the partnership books was greatly in excess of his actual credit.</p> <p>The object of section 515 of the Penal Code is to protect a corporation, association, partnership or individual owning books from being defrauded by means of false entries or alterations therein. It is intended as a protection against domestic or internal attack, against treachery and betrayal from within.</p>

Appeal by the defendants,-Edward R. O’Malley and others, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 24th day of October, 1910, enjoining and restraining the defendants until further order of the court from enforcing the terms, penalties and provisions of article 3a of the General Business Law (Consol.

<p>Municipal corporations — enlargement of theater in the city of New York—failure to comply with Building Code—parties — taxpayers may enjoin approval of illegal plans.</p> <p>Although section 109a of the Building Code of the city of New York, regulating the erection of buildings for theatrical purposes, provides that the section shall not apply to theaters erected before the Code went into effect, the superintendent of buildings may not approve plans whereby- a theater erected before the enactment of the Code is enlarged by the erection of an adjoining building so that the two together constitute a new theater, unless the plans comply with the requirements of the Code.</p> <p>A taxpayer may maintain an action to enjoin the superintendent of public buildings of the city of New York from approving such plans, and it is immaterial whether he shows any special damage, or is influenced by personal or selfish motives.</p> <p>A taxpayer may maintain an action under section 51 of the General Municipal Law to enjoin either an illegal act by municipal officers, or a waste of or injury to public property or funds. To justify an injunction it is not necessary that both illegal actions and waste or injury are threatened. Either is sufficient. Laughliu, J., dissented, with opinion.</p>

<p>Appeal by the defendant, The Bleecker Street and Fulton Ferry Bailroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 27th day of Hay, 1910, upon "the decision of the court, rendered after a trial at the Mew York Special Term, overruling the said defendant’s demurrer to the complaint.</p>

<p>Appeal by the plaintiff, Rosanna Batchelor, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, entered in the office of the clerk of the county of New York on the 21st day of February, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, in so far as said judgment virtually refuses the plaintiff injunctive relief and fixes her damages at one dollar.</p>

Appeal by the plaintiffs, George H. Lawrence and others, as executors, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of December, 1909, upon the decision of the court,, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Emma Wright, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Steuben on the lltli day of November, 1909, upon the decision of the court, rendered after a trial at the Steuben Special Term, sustaining the defendants’ demurrer to the complaint on the ground that .it does not state facts sufficient to constitute a cause of action.

Appeal by the defendant., Fred T. York, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 15th day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Albion Water Works Company, from an interlocutory judgment of the Supreme Court in favor of • the plaintiff, entered in the office of the clerk of the county of Orleans on the 30th day of March, 1910, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the plaintiffs demurrer to the amended answer, and also from a judgment entered in said clerk’s office on the 23d day of May, 1910, on failure of the…

Appeal by Jay M. Easterly and others from an order of the Supreme Court, made at the Cayuga Special Term and entered in the office of the clerk of the county of Cayuga on the 6th day of December, 1909, directing a sale of a certain portion of real estate for the payment of claims against the estate.

<p>Master and servant — negligence—injury while cutting limb from tree — facts not justifying recovery.</p> <p>A servant who while engaged in cutting limbs from a tree, and while standing with one foot upon the tree and the other upon a nearby telephone pole which he had used instead of a ladder to ascend the tree, was injured by reason of the fact that the limb when severed swung around and broke the pole, which showed no outward defects, cannot recover by reason of the master’s failure to furnish a ladder or to inspect the pole.</p> <p>This, because the result would have been the same if a ladder had been used, and because the failure to inspect was not the cause of the accident, in that the pole was sufficiently strong to serve as a ladder, and the master was not bound to inspect it to see whether it would withstand the impact of a falling limb.</p>

<p>Evidence — hearsay-*- statement of third person as to liability of defendant — facts not relevant to issue — new trial — newly-discovered evidence— credibility of witnesses.</p> <p>In a broker’s action for commissions for procuring a purchaser for lands, the sale of which was not consummated, it is error to allow the plaintiff to testify that an attorney at law who was present during the negotiations between the vendor and vendee advised the plaintifl to sue the vendor and assured him that he could recover.</p> <p>Where under the contract of sale the vendor was not bound to take a third mortgage as part of the purchase price unless she was satisfied with it, it is error to allow the plaintiff to show that the mortgage offered was good security although not salable because a third mortgage. So, too, it is error to allow him to prove the value of the lands covered by said mortgage.</p> <p>A new trial should be granted to the defendant in such action where newly-discovered evidence shows that the plaintiff and the vendee stated that the sale fell through because the vendee could not pay the agreed sum because of his failure to sell a mortgage.</p> <p>On a motion for a new trial on the grounds of newly-discovered evidence the credibility of the new witness should not be determined, but should be left to the jury on the new trial.</p> <p>Spring, J., dissented.</p>

Appeal by the plaintiff, Margaret Hart, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 23d day of September, 1909, upon the decision of the court, rendered after a trial at the Jefferson Special Term, dismissing the complaint herein.

Appeal by the defendant, The Olean Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 18th day of June, 1909, upon the verdict of a jury for $1,875, and also from an order entered in said clerk’s office on the 29th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, John W. Storandt, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, the complaint having been dismissed upon the opening on a trial at the Monroe Trial Term in April, 1910.

Appeal by the defendants, Gustavus Rudolph and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of J uly, 1909, upon the report of a referee. The judgment directed .the delivery of the possession of certain real property to the plaintiff and to the defendants other than Gustavus Rudolph and Elizabeth Rudolph.

Appeal by the plaintiff, The Palmer Lumber Company, from a final judgment of the County Court of Monroe county in favor of the defendant Kittie Stern, entered in the office of the clerk of said county on the 14th day of May, 1,910, dismissing the complaint pursuant to an interlocutory judgment entered on the 14th day of April, 1910, upon the decision of the court, and amended by a judgment entered on the 3d day of May, 1910, sustaining the said defendant’s demurrer to the…

Appeal by the defendant, the Fulton Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the lltli day of January, 1910, upon the verdict of a jury for §5,000, and also from an order entered in said clerk’s office on the 22d day of January, 1910, denying the defendant’s motion for a new .trial made upon the minutes.

Appeal by the defendant, The Lake Shore and Michigan Southern Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of May, 1910, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 2d day of August, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Insurance — fire insurance — proof of loss — compliance with provision requiring “ immediate ” notice — due service of notice dependent on circumstances — facts justifying finding that service was timely.</p> <p>There is a sufficient compliance with the provisions of a fire insurance policy requiring the insured to give the insurer “immediate” notice of a loss if the insured, using due diligence, serves the notice within a time which is reasonable under the circumstances.</p> <p>The question of due diligence under the circumstances of the case is for the jury.</p> <p>A finding that a notice of loss was served within a reasonable time is justified where the insured, a resident of New York, whose property was destroyed by the fire following the San Francisco earthquake, although, owing to the confusion existing in that city, unable to ascertain what property had in fact been lost until nearly fifty days after the fire, immediately, on learning the facts, prepared the proof of loss and forwarded it through the San Francisco agents for service in that city.</p> <p>The insured was not required to serve the insurer with an immediate notice that there had been some loss where that fact was already well known to the insurer, for it would have received no benefit therefrom.</p> <p>On the issue as to whether the proof of loss was timely notice, the j ury may consider the facts that the defendant recognized the notice as sufficient, in that it based its objection thereto solely on the ground that there was an earthquake loss not reported, the objection that the service was not timely being taken for the first time by answer.</p>

<p>Appeal by the defendant, Paul Werner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th day of April, 1910, upon the decision of the court rendered after a trial at the Erie Special Term.</p>

Appeal by the plaintiffs, Cornelia Lee and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 19th day of November, 1908, upon the report of a referee dismissing the complaint upon the merits.

Motion by the plaintiff, Mary K. Gregorius, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court on the opening at the Steuben Trial Term in May, 1910.

<p>Appeal by the defendant, David Butler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 2d day of November, 1904, upon the verdict of a jury for fifty dollars, rendered by direction of the court after a trial and a direction of a verdict.</p>

<p>Parent and child—adoption—no right of inheritance without compliance with statute — action to determine claim to real property — court may . determine equitable title.</p> <p>A child taken from a charitable institution by a man and his wife and treated in all respects as an adopted child, but not formally adopted pursuant to the. statute, is not an heir at law of the foster parents, although they agreed to leave.her all their property. . •</p> <p>Where a foster parent on taking a child from a charitable institution, without adopting her pursuant to the statute, treated her in all respects as an adopted child, promised to leave her all his property, and the adopted child after her marriage, at the request of her foster parent and in consideration of-a reiteration of his promise to leave her his property, came and took care of liim until he died, she may, having been in possession of the foster parent’s lands for more than one year, maintain an action under section 1688 of the Code of Civil Procedure to determine her fight thereto as against persons claiming title in hostility to her. In such action the court may determine not only the legal, but the equitable title of the plaintiff to the premises.</p>

Appeal by the defendant, James E. Mulford, from a judgment of the County Court of Allegany county in favor of the plaintiff, rendered on the 10th day of February, 1910, convicting the defendant of the crime of practicing medicine without being registered, as prescribed by chapter 344 of the Laws of 1907, and fining him $100.

<p>Appeal by the defendant, the City of Corning, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of the clerk of the county of Steuben on the 10th day of December, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the relator, John B. Forest, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 11th day of December, 1909, denying the relator’s motion for a peremptory writ of mandamus.</p>

<p>Motion by the plaintiff, the Crocker-Wheeler Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a nonsuit having been granted at the close of plaintiff’s case on a trial at the Monroe Trial Term in April, 1910.</p>

Appeal by the defendant, The Supreme Tent of the Knights of the Maccabees of the World, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 9th day of May, 1910, substituting as parties plaintiff the administrators of the plaintiff, now deceased; also from an order entered in said clerk’s office on the 16th day of May, 1910, substituting plaintiff’s administrators and two beneficiaries…

Appeal by the defendant, Charles Gamble, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 17th day of March, 1910, upon the verdict of a jury for $488, and also from an order entered in said clerk’s office on the lltli day of March, 1910, denying the defendant’s motion for a nonsuit and his motion for a new trial made upon the minutes.

<p>Appeal by the petitioner, Cora M. Baynes, from, an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of J uly, 1910, dismissing the petition herein.</p> <p>Order affirmed, with costs, on the opinion of Lambert, J., delivered at Special Term. All concurred.</p>

<p>Contract — building contract — agreement that respective parties shall be charged with delays caused by them — appeal — failure to make findings of fact and conclusions of law.</p> <p>Delays caused by respective parties to a building contract may be apportioned between them and each charged with the delays caused by him, if the contract so provides.</p> <p>The trial court must make findings of fact and conclusions of law which fairly sustain its judgment.</p> <p>A judgment entered in an action upon a building contract which provided that each party should be charged with the delays caused by him .will.be reversed, if there be no finding as to the amount of delay caused by the respective parties. The appellate court will not determine such question of fact in the first instance.</p>

Appeal by the .defendant, Alice E. Fenn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 8th day of December, 1909, upon the decision of the court, rendered after a trial at the Warren Special Term, restraining and enjoining the defendant commissioner of highways from laying out, opening up or working a certain highway through plaintiff’s property; also from an order entered in said clerk’s…

Appeal by the plaintiff, Allen 8. Gainsley, from an order of the County Court of Albany county, entered in the. office of the clerk of said county on the 21st day of July, 1910, vacating an order of the City Court of Albany, made on the 10th day of January, 1910, denying the defendant’s motion to open a default herein.

Appeal by Charles M. Higgins, one of the permanent receivers of the defendant, from two orders of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 28th day of December, 1909.

Appeal by the defendant, Jeannette S. Adams, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 22d day of. July, 1910, appointing a receiver of the real estate described in the complaint.

Cebtiobabi issued out of the Supreme Court and attested on the 4th day of December, 1909, directed to the board of supervisors of Madison county, commanding said board to certify and return to the office of the clerk of the county of Madison all and singular its proceedings had in relation to certain claims of the relator for publishing the list of nominations for the years 1908 and 1909.

Appeal by the defendants, Charles F. Milliken and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 22d day of July, 1910, directing that a peremptory writ of mandamus issue requiring the defendants to approve the transfer of the relator from the position of personal clerk of Mr. Justice Marean of the Supreme Court, Kings county, to the position of court attendant in said court,…

'Appeal by the relator, The Village of Oobleskill, from a final order of the Supreme Oourt, made at the Rensselaer Special Term and entered in the office of the clerk of the county, of Schoharie on the 7th day of March, 1910.

Appeal by the defendant, Daniel F. Payne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 15th day of November, 1909, upon the decision of the court rendered after a trial at. the Clinton Special Term. By the judgment the plaintiff recovers: six cents damages and restrains the.defendant perpetually from maintaining and using his storage dam at the Kingdom, except as a power dam.

Appeal by the plaintiff, Carrie L. Lee, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 30th day of October, 1903, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Saratoga Trial Term.

Certiorari issued out of the Supreme Court and attested on the 14th day of February, 1910, directed to The State Board of Tax Commissioners, of the State of New York, directing said board to certify and return to the office of the'clerk of the county'of Albany all and singular their proceedings had in determining the amount of a mortgage tax to be apportioned under section 260 of the Tax Law (Consol.

<p>Constitutional law — sale of bankrupt stock in municipalities — statute requiring license constitutional — license not excessive.</p> <p>Section 85 of the General Municipal Law, prohibiting persons conducting a transient retail business in certain municipal corporations from advertising a sale of bankrupt or fire damaged stock, etc., without first obtaining a license from the municipal officers, is constitutional, being a valid exercise of the police power designed to protect the public from fraud.</p> <p>The Legislature has power to regulate such sales and to give the local authorities discretion to license such as arc proper and to refuse a license to those which are improper.</p> <p>The license fee of §25 to §100 per month imposed by the statute is not excessive, nor intended as a revenue measure, nor as a protection to local merchants from traveling merchants. .</p> <p>In any event a vendor who does not claim that goods advertised as bankrupt goods were such in fact cannot attack the validity of a municipal ordinance fixing his license fee at §100 as, under the circumstances, he is not entitled to any license.</p> <p>Cochrane, J.; dissented, in part. •</p>

Appeal by the defendant, Herman V. Mynderse, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Schenectady on the 3d day of June, 1910, upon the decision of the court, rendered after a trial at the Schenectady Trial Term before the court without a jury, awarding the relator the office of president of the village of Scotia.

Appeal by the plaintiff, John B. Spotten, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 1st day of October, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 15th day of September, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, William Shanley and another, from a judgment of the County Court of Broome county in favor of the defendant, entered in the office of the clerk of said county oil the 14th day of April, 1909, pursuant to an order of said County Court, entered on the same day, reversing a judgment of a justice of the peace in favor of the plaintiffs, and also from the said order. upon which such judgment was entered.</p>

<p>Appeal by the plaintiff, Mary Wallace, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 16th day of June, 1910, denying the plaintiff’s motion to have defendant punished for contempt of court.</p>

<p>Discovery—examination of party before trial — action to enjoin use of mineral springs to damage of other owners.</p> <p>A plaintiff will not be permitted to examine a defendant before trial for the mere purpose of ascertaining matters which belong exclusively to the defense.</p> <p>The People suing" the owner of mineral springs in the town of Saratoga to enjoin it from artificially extracting carbonic acid gas from the springs to the detriment of other owners, are entitled to examine the defendant before trial to discover the depth and nature of the wells, the quantity of gas and the water yielded therefrom, the method employed to draw the gas and water, the connection between the various wells, the nature of the machinery used in the business, the manner of operating the same, and the effect thereof upon the waters and gases produced from the wells, these being matters peculiarly within the knowledge of the defendant and bearing upon the question as to whether the operations of the defendant are reasonable .with reference to the rights of others.</p> <p>Although an examination before trial will not be ordered as to matters which the opposing parties are primarily under the burden of establishing, an examination may be granted to obtain evidence to avoid matters disclosed in the pleading of the adverse party, if the defense unanswered would destroy the applicant’s cause of action.</p> <p>But in such action the People are not entitled to examine the defendant in order to discover the result of tests and experiments made by it as to the effect of the operation of its wells upon other owners, for an adversary will not be required to disclose evidence discovered during preparation for trial.</p>

Appeal by The City of New York and John A. Bensel and others, constituting the board of water supply of the city of New York, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Ulster on the 14tli day of March, 1910, confirming the report of commissioners of appraisal awarding damages to the respondents.

Appeal by the plaintiff, Elizabeth B. J. Hammond, as administratrix, etc., from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chemung on the 27th day of October, 1909, setting aside a verdict of $16,000 and vacating a judgment in favor of the plaintiff and granting a new trial upon the ground of newly-discovered evidence, and also from an order entered in said clerk’s office on the 9th day of November,…

<p>Forest, fish and game — penalty for permitting deer-hunting dog to run at large — erroneous charge.</p> <p>In an action to recover the penalty for permitting a dog trained to pursue deer or of the breed commonly used for hunting deer to run at large in the Adirondack park it is error to charge that the intent of the defendant to violate the statute is an element which must be proved in order to justify a recovery.</p> <p>So too in such action it is error to charge in substance that the defendant had a legal right to pursue foxes with such dog on the private lands of his employer situate in the Adirondack park, at the employer’s direction, whether or no he was of the kind commonly used in hunting deer,- for if of such kind neither he nor the employer had such right.</p>

Appeal by the petitioner, the Saratoga Lake Bridge Company, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Saratoga on the 1st day of July, 1910, denying the petitioner’s application for a peremptory writ of mandamus.

Appeal by the petitioner, Edwin Bachman and another, from a decree of the Surrogate’s Court of Rensselaer county, entered in said Surrogate’s Court on the 4th day of June, 1908, denying probate to a paper propounded as the last will and testament of Matthew S. Marley, or Morley, deceased.

Appeal by the defendants, Charles W. Sanderspree and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 22d day of January, 1910, upon the verdict of a jury, and also from an order dated the 10th day of May, 1910, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Arthur Oouture, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office i the clerk of the county of Clinton on the 23d day of February, 1910, upon the decision of the court rendered after a trial at the Clinton Trial Term, a jury having been waived.</p>

<p>Appeal by the defendant, The Village of Mechanicville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Saratoga on the 7th day of March, 1910, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 23d day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Pleading — bill of particulars — witnesses to transaction — items ■ of account.</p> <p>A plaintiff suing upon an account will not be compelled to give a bill of particulars stating the persons who were present at the transactions between the parties, for it is not the office of a bill of particulars to furnish a list of witnesses.</p> <p>Where plaintiff has set out the account iu full as part of his complaint, no further particulars will be ordered.</p>

Certiorari issued out of the Supreme Court and attested on the 14th day of July, 1910, directed to the Public Service Commission of the State of New York, Second District, commanding said Commission to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had before the Commission in relation to the reduction of the rate of fare charged for transportation of passengers on the Ticonderoga railroad, with the decision, opinion…

Appeal by the defendant, the Younglove Lumber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 21st day of February, 1910, upon the verdict of a jury for $2,250, and also'from an order entered in said clerk’s office on the 2d day of March, 1910, denying the defendant’s motion for á new trial made upon the, minutes.

<p>Appeal by the defendants, Egburt E. Woodbury and others, together constituting the State Board of Tax Commissioners, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 9th day of March, 1910, vacating an assessment of a special franchise’ made by the State Board of Tax Commissioners in the year 1907, under the provisions of the Tax Law. (See Laws of 1896, chap. 908, § 42, added by Laws of 1899, chap. 712, and amd. by Laws of 1900, chap. 254; Laws of 1902; chap. 112, and Laws of 1904, chap. 382.)</p> <p>A certiorari was issued to review the assessment and a referee was appointed to take and report to the court the evidence with his findings of fact and conclusions of law upon' the several issues made by the return. The referee found that the West Shore railroad, of which the relator is the lessee, crosses the Erie canal lands at other than right angles for a distance of 242.79 feet, and continuing in. the same direction crosses a highway adjoining and parallel to the canal for a distance of 62.64 feet; that the tracks were carried over the canal land by a lattice truss pin-connected bridge, the westerly end of which rests, upon a pier built partly on the canal lands and partly within the bounds of the highway; that the tracks are carried over the highway by a through plate open-floor bridge, the easterly end of which rests upon the pier; that the bridges were constructed in 1882 and rebuilt in 1905; that they do not lap and that there is one continuous line of rails, ties and track superstructure across the bridge. The referee concluded that it was not lawful to assess as one special franchise the crossing of the canal lands and the crossing of the adjoining highway, and that the assessment should be vacated. The referee also found that the assessments, generally, in the town of Minden were eighty percentum of full value, while the assessments by the State Board of</p> <p>Tax Commissioners were made at full value. When the matter came on for hearing at Special Term the court adopted the findings of fact and conclusions of .the referee and made the order appealed from.</p>

Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the, office of the clerk of the county of Orange on the 9th day of March, 1910, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new •trial made upon the minutes.

Appeal by the plaintiff, Frank 0. Kohart, from a judgment of the Supreme Court in» favor of the defendants, entered in the office of the clerk of the county of Kings on the 5th day of January, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

Appeal by the defendant, Samuel Williams, from a judgment of the Municipal Court of the city of blew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 28th day of. April, 1910.

Appeal by Elizabeth McGowan from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 14th day of January, 1910, admitting to‘probate' a paper propounded as the last will and testament of Mary E. Donnelly, deceased.

Appeal by Josephine G. Manske, as former administratrix, etc., from parts of a decree of the Surrogate’s OourVof the county of Kings, entered in said Surrogate’s Court on the 15th day of March, 1910, sustaining objections to the appellant’s supplemental account as administratrix.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 7th day of April, 1910, upon the verdict of a jury, rendered by direction of the court, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 21st day of April, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The American Tobacco Company, from an order of the Supreme, Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of September, 1910, denying the defendant’s motion to compel the plaintiff to reply to a separate defense set up in the answer.

Appeal by the defendant, The Western Union Telegraph Company, from a judgment of the Supreme- Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 23d day of March, 1910, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 17th day of March, 1910, denying the said defendant’s motion for a new trial made upon the minutes.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event. Held, that the finding o'f the jury is contrary to and against the weight of the evidence. Held: that the finding o'f the jury is contrary to and against the weight of the evidence. All concurred, except Williams, J., who dissented in a memorandum.

<p>Appeal from a judgment of the Supreme Court, entered in the Onondaga county clerk’s office July 26,1909.</p> <p>Judgment affirmed, with costs. McLennan, P. J., voted for affirmance upon the opinion of Andrews, J., delivered at Special Term (reported in 64 Mise. Rep. 205); Spring and Kruse, JJ., voted for affirmance; Williams and Robson, JJ., dissented in a memorandum by Robson, J.</p>

<p>Insurance — suit in equity to have policy declared to be in force—pleading — complaint.</p>

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered in the clerk’s office of said court on May 11, 1910, setting aside a verdict in his favor.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 9th day of March, 1910, dismissing the complaint after a trial without a jury.

<p>Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Richmond county on October 28,1907, and also from an order denying the defendant’s motion for a new trial.</p>

Judgment and order affirmed, with costs, on the opinion of Mr. Justice Clark at Trial Term. Hirschberg, P. J., Woodward, Burr, Thomas and Rich, JJ., concurred. The following is the opinion pf the Trial Term:

<p>Appeal from an order, entered in the New York county clerk’s office May 23, 1910, directing the plaintiff to serve a verified bill of particulars.</p>

<p>Appeal from an order, entered in the New York county clerk’s office June 20, 1910, denying a motion to vacate an order for the examination of the defendant company by plaintiff as an adverse party before trial.</p>

<p>Appeal from an order denying a motion for a bill of particulars.</p>

<p>Husband and '¡rife — divorce —counsel fee.</p>

<p>Appeal from an order of the Appellate Term reversing an order of reference.</p>

<p> Costs—separate causes of action. </p>

<p>Husband and wife — annulment —fraud and duress — alimony.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p> <p>Judgment and order affirmed, with costs, on the authority of Bailey v. Inter, state Casualty Co. (8 App. Div. 127; affd., 158 N. Y. 733). Present — Ingraham, P. J., McLaughlin, Laughlin, Miller and Dowling, JJ.</p>

<p>Appeal from an order, as resettled, denying a motion for bill of particulars.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, and from an •order denying a motion for a new trial, and from an order denying a motion for a reargument of said motion for a new trial.</p>

<p>Appeal from an order denying the defendant’s motion to dismiss the complaint.</p>

<p> Pleading—amended answer—condition. </p>

<p>Appeal from orders of the Court of General Sessions of the Peace in and for the county of" New York.</p>

<p>Appeal from an order requiring the plaintiff to serve a bill of particulars.</p>

Order affirmed, with ten dollars costs and disbursements, on the opinion of Bischoff, J., in the court below. Present — Ingraham, P. J., Clarke, Scott, Miller and Dowling, JJ.

<p>Appeal from an order striking out allegations in the complaint.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order of the Special Term denying a motion to compel the plaintiff’s attorneys to accept service of an answer.</p>

<p>Appeal from an order vacating an order for thq examination of a witness de bene esse.</p>

<p>Appeal from an order denying plaintiffs motion for leave to discontinue.</p>

<p>Appeal from an order denying a motion to vacate a warrant of attachment.</p>

<p>Appeal from an order of the Special Term awarding defendant an additional counsel fee in an action to annul a marriage.</p>

<p>New trial — costs.</p>

<p>Appeal from, an order of the Special Term granting an injunction restraining the appellant pendente lite from acting on any approval of plans, etc.</p>

<p>Appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment entered upon the verdict of a jury and from an order denying motion for new trial.</p>

<p>Carrier—liability for loss of baggage — special contract limiting liability — Public Service Commissions Law.</p>

<p>Crime — larceny—improper conduct of trial.</p>

<p>Appeal from a judgment and order.</p> <p>Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., and Williams, J., who dissented in an opinion by McLennan, P. J. •</p>

Appeal by the plaintiff from a judgment in favor of the defendants, entered ■in Delaware county clerk’s officé on the 27th of December, 1909, upon the report of a referee.