Volume 141 — New York Appellate Division Reports

' Appeal by the defendant, the New York Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the connty of Rockland on the 21st day of February, 1910, upon the verdict of a jury for $5,320, and also from an order entered in said clerk’s office on the 13th day cn: March, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James Gardner, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 30th. day of November, 1908, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff for $2,500, and dismissing the complaint, and vacating a judgment entered upon such verdict, and also from a judgment entered in said clerk’s office on the 16th day of December,…

Appeal by the defendant, The City of New Rochelle, from- a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of. Westchester on the 20th day of December, 1909, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Appeal by the defendant, William Horne, from a judgment of the County Court of Kings county in favor of .the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of March, 1910, upon the decision of the court rendered after a trial before the court without a jury.</p>

Appeal by the defendants, Max Brown and others, from án 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 28tli day of May, 1910, granting the plaintiff’s motion for an injunction pendente lite.

<p>Certiorari, issued out of the Supreme Court and attested on the 15th day of April, 1910, directed to Bichard Lathers and others, members of the board of public works of the city of New Bochelle, and John J. O’Brien, receiver of taxes of the city of New Bochelle, commanding them to certify and return to the office of .the clerk of the county of Westchester all and singular their proceedings had in confirming an assessment against relator’s property. .</p> <p>Patrick Rooney, for the relator.</p> <p>■William S. Beers [Hugh M. Ha/rmer with him on the brief], for the respondents.</p>

Appeal by the defendant, John Aspinwall, 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 10th' day of December, 1909,. upon the verdict of a jury, and also from ah order entered in-said clerk’s office on the same' day denying the defendant’s motion for a new trial made upon the minutes. • '

<p>. Appeal by the plaintiff, William A. De Goode, 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 16th day of December, 1909, dismissing the complaint, and also from an order entered in said clerk’s office on the the 7th day of February, 1910, denying the plaintiff’s motion for a new trial.</p>

<p>Elections — organization of convention — absence of person designated to call convention to order.'</p> <p>While section 67 of the Election Law requires every convention to be called to order by the chairman of the committee with whom the call originated, or by a person designated in writing for that purpose by such chairman, said provisions are directory rather than mandatory, so that if the person designated to call the convention is unable to be present for justifiable reasons and has delivered the official roll to one of the persons named as delegates and such person and a majority of the delegates are present, the convention may be organized and transact business.</p> <p>A- proceeding to contest the validity of a certificate of nomination will be disposed of in accordance with the facts as they appear, although in the title of the papers it is stated that the proceeding is taken under a section of the statute which is not applicable. '</p>

<p>Election—mandamus to compel the board of elections to accept certificate of nominations —writ denied where former nomination valid.</p> <p>Where an original certificate of nomination has been held to be valid notwithstanding the fact that the person designated to call the convention to order was not present owing to illness, the court will not compel the board of elections to accept a second certificate made at a subsequent convention where the time for filing the certificate of the original nomination has expired. Under such circumstances the court will issue mandamus requiring the board of elections to print the names of those nominated at the first convention upon the official ballot. , ■ ■</p>

<p>Elections — filing certificate of nomination in twenty-third Senatorial district — statutes — construction.</p> <p>Certificates nominating a candidate for senator in the twenty-third Senatorial district, which embraces the counties of Richmond and Rockland, the former being within the city of New York and the latter entirely outside the city, should be filed only with the Secretary of State and not with the board of elections of the city of New York or with the county clerk of Rockland county.</p> <p>The provision in section 137 of the Election Law governing the filing of certificates of nominations in a county not wholly within the city of Ne.w York and directing that they be filed with the clerk of said county and in the office of the ■ board of elections of said city, is inoperative owing to the fact that there is no longer-any county partly in and partly outside of said city.</p> <p>A re-enacted statute is deemed, not a new law, ,but a continuation of the former , law.</p>

<p>Election of justices of the peace — biennial town meetings.</p> <p>A justice of "the peace may only be’elected at the biennial town meetings prescribed by the Town Law, ■ '</p>

<p>Appeal by the defendant, Edmond J. Hayes, 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 April, 1910.</p>

.' Ari’EAL by the. plain tiff, Charles A; .Mclneru.ey, fro.m a, judgment - of the Municipal Conyt. of the- city'of-®ew-York*-borough- of Brooklyn, in favor of the defendant, rendered on the 28th day of April, 1910.,, dismissing tlie complaint, .

• ■ Appeal by the defendant. Max F. Arp,; from aii order of the County Court of Kings county, entered in the office of the clerk of said county on the ‘9th day of May, 1910.

<p>Venue — áctíori for persona:! injuries^- “ residence ” defined — temporary domicile-for purpose of bringing action:</p> <p>An action tp recover damages for personal injuries must be brought in the county in which oneof the parties resides at the commencement thereof;</p> <p>Residence of h party governing the place Of tria!, within'section 984- of the Code - of Civil' Procedure is synonymous With domicile-^.-the-permanent-home- and! place; to- which, whenever absent, for purposes: of "business; or pleasure; one,. intends to return.. ., - _ . _ .....■ . .,.....</p> <p>A plaintiff originally domiciled'with his. parents in another State who comes to a county in this State for the sole, purpose of bringing án action' td recover fbr personal injuries and1 With no intention of permanently remaining there, is not - ■ a resident- of .-that county within the meaning of section-984 of theiGode- of-Civil Procedure -and. the defendant, is. entitled to have, the venue changed' to the placé of his 'own,residence.</p>

, , Appeal., by Bobert B. Howard and others fr¿np. so much of a decree of the Surrogate’s Court of the county of KiBgs, entered in , said Surrogate’s Cou-rt on. the 29th day of June, 1910, directs thé executor to ‘pay certain income to the widow of the testator,. .,

Appeal by the plaintiff, Matthew Jacobs, 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 8th day of March, 1910, upon the dismissal of the complaint by direction of the court after 3 trial at the Kings County Tidal Term.

<p>Appeal by Erhart Hoffman, as executor, etc., and another, from a decree of the Surrogate’s Court of tire county of Kings, entered in said Surrogate’s Court on the 13th day of July* 1909, overruling objections to the account of the respondent.</p>

Appeal by the defendant, Moris Bienenstoqk, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 6th day of July, 1910, and entered in the office of the clerk of the county of Kings upon the' decision of the court rendered after a trial at the Kings County Special Term overruling 'the defendant’s demurrer to the complaint.

Appeal by the defendants, Moses Ginsberg and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office'of the clerk of- the county of Kings on the. 19th day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on .the 23d day of November, 1909, ■ denying. the defendants’ motion for a new trial made upon the • minutes. ' . •

Appeal by the plaintiff, Alfred Cossman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the. clerk of the county of Kings on the 22d day of September, 1910, denying the plaintiff’s motion that' defendant be precluded from giving evidence as to certain parts of the affirmative allegations in his answer.'

<p>Deed.— suit to set aside conveyance — forgery of name of grantor’s wife.</p> <p>Suit to set aside a conveyance of land in so far as it conveyed the dower rights of-the grantor’s wife'brought upon the ground that the signature purporting to be hers was forged. It appeared that pritir to and subsequent to, the' execution of the deed the-wife had been in various insane asylums. - At the time of ■ the execution her husband was not living with her, but with another woman. On all the evidence, held, that a judgment for the defendant should be reversed.'</p>

<p>Appeal by the defendants, Agnes F. Haggerty 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 Rings on the 13th day' of February, 1908, upon the decision of the court rendered after :a trial at the'Kings-County Special Term.'</p>

<p>Court—jurisdiction of Municipal Court — action of replevin against administrator—when administrator liable in individual capacity.</p> <p>As the Municipal Court of the city of New York has jurisdiction of an action against an administrator or executor as such where the amount does not exceed §500, it is error to dismiss the complaint in an action brought against such representative to recover chattels loaned to the decedent on the theory that the plaintiff’s remedy is in the Surrogate’s Court.</p> <p>Where an administrator assumes dominion over chattels loaned to his intestate and refuses to restore them, an action in replevin may be brought against him individually.- This, because the unlawful detention is his individual act, not that of his intestate.</p>

<p>Contract — agreement by agent to transfer agency — agreement subject . to approval by principal— equity — specific performance of agreement- . to-sell agency—pleading complaint stating cause of action.</p> <p>. A contract whereby an agent agrees to assign his agency to a third party-does ■ not bind him absolute^ to obtain the agency, for the assignee, for the principal' has the right to select his own agent and may refuse to employ the assignee.' ■</p> <p>Assuming that a court oí equity may compel the specific performance of the contract of an agent to transfer his agency to a third party, its decree can go no farther than to compel the agent to endeavor in good faith to secure the agency for the promisee; it cannot direct the principal t.o employ the assignee as agent. .</p> <p>A court of equity will not decree specific performance where it cannot enforce its decree, but will leave the plaintiff to his remedy at law.</p> <p>A complaint in a suit in equity to compel .the specific performance of a contract whereby an agent agreed to transfer his agency to the plaintiff, which alleges that the principal is willing to substitute the plaintiff as an agent and that, although the defendant has transferred his agency to third parties who have been accepted as agents by the principal, the transaction was a mere sham or pretense in that the defendant is still the real agent while his assignees are acting for him, states a cause of action in equity against the promisor and his assignees.</p>

<p>Will — rights of afterborn children — failure of pregnant woman to provide for child — will disposing of real estate only — partition — adjustment of rights of parties.</p> <p>A child born after the execution of a will and not mentioned therein or provided for by a settlement is entitled to succeed to a portion of his mother’s estate under section 26 of the Decedent Estate Law, although an intention to disinherit the child may be found from the fact that the mother, being pregnant, executed the will within a few days of her delivery.</p> <p>The right to dispose of property by will arises only from positive.law"; it may be regulated, enlarged or restricted by statute.</p> <p>Such afterborn child is entitled to succeed- to. a portion of his mother’s estate under said statute although the mother’s will disposed of real estate only, leaving her personal property to be distributed under the statute, so that the. afterborn child would take' 4 portion thereof. The failure to bequeath the ' personal estate did not -make, a provision for afterborn children within the , meaning of the statute. ■ , . ' • •</p> <p>Where the interests of cotenants in an action for partition are subject to the lien of a mortgage held by some of them, the net amount of the mortgage lien must -first be paid out of the proceeds of the sale and the balance, if any-, distributed among the tenants in common in .proportion to their respective interests..</p> <p>In ascertaining the net amount of the mortgage indebtedness those tenants in common who are equitable assignees, of the mortgage are entitled to interest on the amount due on the mortgage from the 'time of the foreclosure sale and to proper carrying charges, deducting rents and profits.</p> <p>Interlocutory judgment in an action for partition modified by directing a referee therein appointed to determine'the mutual charges and credits of the parties and to’ascertain, the amount due, to each.</p>

<p>Bills and notes — rights of transferee of holder in due course — evidence— equities between payee and maker cannot be shown — pleading— fraudulent issue of engineer’s certificate:— affirmative defense.</p> <p>Where a corporation, paj'ee of a promissory note, transferred it for full value to its president, who, after having discounted it at a bank which became a holder 'in -due course, took up the note after-the failure of' the maker to pay, he' acquired all the rights of the ban'll in respect to all' parties prior to the latter by virtue of section 97 of the Negotiable Instruments Law.</p> <p>Hence, in an action brought'by the last holder against the maker it- is error to admit evidence that the corporation,-the payee, obtained the note through false and fraudulent-representations, on tlie .theory-that the holder as officer'of the. corporation was chargeable.with its fraud.</p> <p>A defendant sued on a' promissory note which was given in part, payment of work-done under a building contract which .provided-that an engineer employed by the defendant was to be final judge of the quality of materials and workmanship, cannot give-evidence to show that-a; certificate issued by-him. was' fraudulent unless the defense be affirmatively pleaded. -</p>

<p>Will construed — trust not unlawfully suspending power of alienation, '</p> <p>A testator having given his widow the income from his entire estate for life, on her de'ath bequeathed the entire estate in .trust to be divided into three equal shares. The will provided that-the income from two of the shares was to be paid to W. A. and D., two sons of the testator, for their lives, with remainders ■ over to their issue respectively,. The income from the third share was directed to be paid to G. W., a son of the testator, and to his grandchild William, the son of G. W., in equal proportions during the life of G. W., and on bis death the remainder to be paid to the grandchild. It "was further -provided that should Q-. W. survive his son William the former was .to receive the whole income of the share-for life, and should either W. A. “ and ” D. die without issue and should Gt. W. die without his son William surviving, in that event'the share of which such deceased received the income should be paid to the survivors or survivor; the issue of either of the sons W. A. and D., if deceased, however, to receive the share to which the parent would be entitled if living, and- the grandson William to receive the share to which his father would have been entitled if'living.</p> <p>Held, that there was no'suspeusion of the power of alienation or of the absolute ownership of personal property for more than two lives in being, as each of the trusts must terminate on the death of the life tenant and pass to certain prescribed though contingent remaindermen;</p> <p>That, although the testator in the last clause of his will spdke of W. A. “and” D. dying without issue, the word “ and ” was intended to he used in a dis- . junctive.sense and should be so construed-. ■ .</p> <p>Where there are two possible constructions of the language of a testator that will be adopted which will uphold rather than destroy the will.</p>

Appeal by the plaintiff, The William H.. Curtin Manufacturing Company, from a judgment of the Municipal Court of the city of Yew York, borough of Brooklyn, in favor of the defendants, rendered on the 3d day of June, 1910.

Appeal by the plaintiff, Benjamin Friédman, from a judgment of the Municipal Court of the city, of New York, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of June, 1910, dismissing the complaint without prejudice.

Appeal by the plaintiff, Samuel Bergmann, from a judgment of the Municipal Court of the city of New York, borough of Brook-, lyn, in favor of the defendant Max Manes, rendered, on the 31st day of March, 1910.

<p>Partnership — conversion by partner — when partner hot liable.</p> <p>"Where a copartnership, was employed to collect rents, and after moneys were col-' lected by both of the "partners one of them, without the knowledge-or consent of the other, embezzled the money.and absconded, the other partner, cannot be held liable for the conversion, nor is be subject to a body execution.</p> <p>It seems, however, that he would be liable in an action for money bad and received.</p> <p>A fraud committed by a partner while acting on bis own separate account is not - imputable to the firm, although had he not been connected- with it he would not have been in a position to’commit the fraud. - .</p>

Appeal by the plaintiffs, Samuel Levin and another, from a judgment of the Municipal Court of the city of . New York, borough of Brooklyn, in favor of .the defendant, rendered on the.26fch day of May, 1910, dismissing the complaint.

Appeal by the defendant, Alfred Collier, from & judgment of the County Court of Kings'county, entered in the- office of the; clerk of said county on the 11th day of May, 1908, convicting the appellant-of the crime of robbery in the first degree,' and also from an order denying the said defendant’s • motion for a new trial. ■ • ' ■

Appeal by the defendant, Henrietta Lang, from a judgment of the Court of Special Sessions of the Second Division of the city of New York, rendered against the defendant oñ the 12’th day of April, 1909, convicting her of the Crime of keeping a disorderly house, and also from two orders made on the 1st day of April, 19Í0, denying, the defendant’s sepárate motions for a new trial, and to vacate and set aside the. said judgment of conviction,

Appeal by the plaintiff, Bertha E. Hahe, individually and as . administratrix, etc., from a judgment of- the Supreme Court in favor of the defendant Clark D. Rhinehart, entered in the office of the clerk of the county of- Queens on the 19th day of January, 1910, upon the decision of the court, rendered after a trial at the Queens County 'Special Term, dismissing the complaint upon the' merits. . ' . '

Appeals by the defendants, Samuel N. Berlin and another, from two orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of June, 1910,- and the 26th day of July, 1910, respectively.

Appeal by Arabella D. Huntington and Charles H. Tweed, as executors, etc., 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 18th day of June, 1909, denying the appellants’ motion to confirm the report of commissioners of appraisal in condemnation proceedings, and also from, an order entered in. said clerk’s office on the lltli day of October, 1909, amending the said original…

Appeal by the defendants, William F. Redmond' and others, doing business as copartners, etc., from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of ' the county of Queens on the 17th day of May, 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.

Appeal by the plaintiff, the Oakes Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the offlce of the. cleric of the county of Queens ón the lltli day of March, 1910, upon the decision of the court, rendered after atrial at the Queens County Special Term, dismissing the complaint.

<p>Appeal by-the defendant, Jacob H. .Werbelovsky, from , a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on. the 21st day of January, 1910, upon the'verdict of' a jury for $1,000, and also from an order made on the 24th day of January, 1910, and' entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.'.</p>

<p>Intoxicating liquors — maintaining disorderly house — revocation of ■ license — chapters 144 and 350, Laws of 1908, constitutional:</p> <p>Evidence examined, and held, sufficient to justify the revocation and cancellation of a liqu'or tax certificate on the ground that the holder thereof maintained a disorderly house upon the licensed premises.</p> <p>Chapters 144 and 350 of the Laws of 1908 and subdivisions of section 15 of the Liquor Tax Law do not violate any of the constitutional rights of the defendants in such a proceeding.</p> <p>Jerks, J., dissented.</p>

Appeal by the defendant, the Savoy Trust- Company, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in fávor of the plaintiff, rendered on the 5th day of May, 1910.

Appeal by the defendant, Morris Kohn, from a judgment of the Court of Special Sessions of the Second Division of the city of New York, rendered against the defendant on the 25th day of April, 1910, convicting him of tlie crime of keeping and maintaining a disorderly house.

Appeal by the plaintiff, Lottie Lane, as administratrix, etc., from . a judgment of the Supreme Court in favor of. the defendant, entered ,in the office of the clerk of the county of Orange on the 4th day of December,. 1908, as amended' by an order fentered on the 4th day of January, 1909,- upon the dismissal of the complaint by direction of the court, a jury having theretofore rendered á verdict in favor • of the plaintiff for $5,000; and also from an order entered in said…

Appeal by the plaintiff, Florence M.- Simpson,' as administratrix, etc., from a judgment of the Supreme Court in favor of the defend- ant,, entered in the office of the clerk of. the county of Queens on ■ the 27th day of ¡November, 1909, upon the dismissal of the com plaint by direction of the court at the close of plaintiff’s case on ■ a trial at the Queens County Trial Term.

<p>Evidence —larceny —■ proof of prior unrelated crime'.</p> <p>On the trial of an indictment charging the defendant with stealing a purse from a customer in a department store, it is error to admit evidence that on a prior occasion the defendant, in the same store jostled another person in the elevator . and took her purse, that being a distinct crime- in no manner connected with that charged. • x .</p>

<p>Deed — description bounding lands on abandoned highway — grantee takes half of highway—acreage inconsistent with description.</p> <p>Where a grantor owning an abandoned road conveys adjoining lands by a description which on one side bounds them “along said Turnpike Road,” the. grantee takes one-half of the highway.</p> <p>This is true although in addition to the description by courses and distances there is a diagram showing the highway and the adjoining lands, but marked with an acreage which does not include the highway, if at the time of the conveyance the premises were unimproved farm land and there is no proof that the grantor or his successor ever asserted any claim to the roadbed.</p>

<p>. Appeal by the defendant, John C, Lumsden,-from a judgment of" the Court of General Sessions of the Peace in and for the county ' of New York, rendered against the defendant on the 10th day of March, 1909, convicting him-of the crime of manslaughter in the first degree. .</p>

Appeal by' the plaintiff,- George M.. Hard, 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 bn the 3d day of November, 1909, upon the decision of the court rendered after a trial at the New York Trial Term before the court -without a jury in an action for contribution.

Appeal by. the defendant, the New York Mutual Benevolent Society, from a judgment of the Supreme Court in favor of the plaintiff, entered in - the office of the clerk of the county of New York on the 8th day of July, 1910, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, in an action to «recover for an amount claimed as a benefit under the constitution and by-laws of the defendant.

Appeal by August' Reymert, a legatee and the executor named in the alleged will of Edward O. Kindberg, deceased, and others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 28th day of December, 1909, refusing probate to a paper dated March 25,1909, propounded as the last will and testament of Edward O. Kindberg, deceased, and admitting to probate an earlier will dated October 29, 1908.

Appeal by the defendant, the American Cigar Box Company, from a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of December, 1909, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.

Appeal by the defendant,. Asbest-TJnd-Gummiwerlce, Alfred Calmon, Agent, 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 19th day of October, 1910, denying the defendant’s motion to vacate a- warrant of attachment.

<p>Pleading—complaint in action for libel — allegations as to prior unrelated publications.'</p> <p>Where the complaint in an action for libel sets out prior libelous publications of the defendant having no connection therewith but relating to a different subject-mat terso, as to give rise to separate causes of action they will be stricken out, or the plaintiff will he compelled separately ’ to state ■ and number the .causes of action.</p>

Appeal by the defendant, Burnham Kalisch, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1909, upon the verdict of a jury rendered by direction of the court, certain questions of fact having been submitted to them, and also from an order entered in said clerk’s office on the 21st day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Abraham Elterman, 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 12th day of August, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the officé of the. clerk of the county of New York on the 18th day of March, 1910, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 28th d.ay of March, • 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Hinkle Iron Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk'of the county of New York on the 22d day of April, 1910, vacating the direction of the court dismissing the complaint at the close of plaintiff’s case and granting a new trial.

<p>Damages—contract to sell goods — failure to deliver entire quantity— ■ question as to whether goods could have been obtained in open market.</p> <p>Where a vendor of goods, sued for failure to deliver the full amount; endeavors to justify his breach of contract by claiming that the goods delivered had not been paid for in accordance with the contract,-and on the trial his attorney waives objection as .to all payments except the one for the last invoice and with respect to that the undisputed evidence shows that the plaintiffs .duly remitted and that the remittance was accepted by the defendant, the only question is one of damages.</p> <p>The measure -of damages in such case is the difference between the market price at the time and place'of delivery and the price at which the defendant agreed to sell and deliver the goods, provided the goods were obtainable in the market and, if not, then the difference between the contract price and. the price at which the vendee had placed orders for a resale, less the expense tq him of carrying out the contract;</p> <p>Where there was evidence that similar goods of defendant’s manufacture could • have been .purchased in the market, after the breach and one of the brokers who negotiated the contract testifies that had he been requested at the time of the breach he could have purchased more than the quantity of goods undelivered in the open market, it is for the jury to say whether or not the goods could have been ■ obtained in the opeó market. It is error .to refuse to charge that, if the plaintiffs could have so obtained them, then the measure of damages is the difference between the contract price and the market price at the time of delivery.' '</p>

Appeal by the plaintiff, Bertha Schiefer, and her attorney, from an order of the Supreme-Court, made at the New York Special Term and entered in the' office of the clerk of the county of New York on. the 8th day of April, 1910, directing that the defendants pay into court one-third of the amount to be paid by them on a compromise of this action agreed upon between the parties, that being the proportion of the’recovery which it is claimed the .plaintiff contracted to give the…

<p>Appeal by the plaintiff, Henry W. A. Page, from, a judgment of the Supreme Court in his favor against the defendant, entered in the office of the cleric of the county of New York on the 30th day of June, 1910, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term,</p>

Appeal by the defendant, Joseph Bayley, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 1st day of April, 1910, setting aside the verdict of a jury in favor of the defendant, rendered by direction of the court, and directing a new trial to be had on the ground that the verdict was contrary to law and to the evidence.

Appeal by the plaintiffs, Edward La Montagne, Jr., and others, 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 25th day of March, 1910, upon the report of a referee dismissing the complaint.

Appeal by-the defendant, Charles Henry Hiehaus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of' March, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint. ■ . .

Appeal by the defendant, The Century Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of June, 1910, upon the verdict of a jury, and'also from an order entered in said clerk’s office on the 13tli day of June, 1910, denying the defendant’s ffiotion for a new trial añade upon ■ the minutes.

<p>Master and servant —■ negligence — death by fall of hoisting elevator — verdict against weight of evidence — failure to prove defect in elevator — safe place to work — failure to use hoisting engine — evidence — ■ custom, as to inspecting elevators — expert opinion—charge — res ipsa loquitur — Employers’ Liability Act.</p> <p>Action against a master to recover for the death- of an employee who, while standing under a hoisting elevator and pulling a rope used to hoist it, was killed by the fall of the elevator. Evidence examined, and held, that a verdict for the plaintiff based upon a finding that the hoisting cables broke was against the weight of evidence.</p> <p>A master cannot be charged with negligence owing to the fact that steel keys used to fasten a drum upon which the cable wound to a shaft sheared off, so that the drum became loose on the shaft and allowed the cables to unwind, where there is no evidence showing how long the condition causing the accident had existed and the condition of the keys could not have been discovered by inspection, and there is no claim that the elevator was improperly constructed and it was of a type in common use.</p> <p>Although the decedent in hoisting the elevator was obliged to stand under it, the master cannot be charged with negligence in failing to provide a safe place to work where the place became unsafe, only if the elevator itself were unsafe and there is no proof of negligence in the master in failing to provide an ele- . vator reasonably safe for the use for which it was intended or in exercising care to maintain it in a condition of reasonable safety.</p> <p>The rule that a master must provide machinery reasonably safe for the purpose for which it is to be used and maintain it in a reasonably safe condition does not require him to furnish the best of known appliances, but only such as are safe and suitable and such as are ordinarily used in the business.</p> <p>In such action it is error to admit evidence that a gas engine which might have' been used to furnish power for the elevator was hot in operation, for it is not a question as to whether there might be a safer means of raising the elevator, but whether the one in actual use was reasonably safe and suitable.</p> <p>So too,, where the master had shown that the elevator was fully inspected before the accident, it was error to. excludé evidence showing how frequently similar elevators were inspected, and the instructions given to the. master’s foreman relative to putting the elevator in repair and the foreman's knowledge of the repairs actually made.</p> <p>Where the fall of an elevator may as well have been a matter of improper, operation as- of structural defect, it is error to charge that the rule of res ipsa loquitur applies. •</p> <p>The burden'resting upon a master-to use reasonable care in the selection of appliances and "make reasonable inspection thereafter, has not been changed by the'.Employers’ Liability Act which, as regards defects in the -ways, works or machinery connected with the master’s business, is merely declaratory of the common" law.</p> <p>•In such action it is error to exclude the opinion of an expert who examined tile machinery and had. experience .in building elevators as to the situation of the . elevator when the keys holding "the drum to the shaft gave way, and his opinion asto whether the strain of the platform' and load thereon was-sufficient .to break the keys.</p>

Appeal by the defendant, the Pacific Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk-of the county of New York on the 19th day of July, 1909, upon the report of a referee.

Appeal by the defendant, The City of Mew York, from a 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 31st day of May, 1910, upon the verdict of a jury rendered by direction of the court. '

Appeal by the defendant, Charles S. Retter,. from, a judgment of the Suprenie Court in favor of the plaintiff, entered1 in the office of the clerk of the county of New York on the 5th day of March, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the. 4th day of March, 1910, denying the defendant’s motion for a new trial made . upon the minutes. •

■ Appeal by-tlie.défendant, The City of Yéw York, from a judgment of the'Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the; county of Yew York on the 4th day óf May, 1908, upon the verdict of a jury,, and also, from an order entered in said clerk’s office on the 6th day of May, 1908, denying the defendant’s motion for a new trial made- upon the minutes.

Appeal by John W. Brannan, as president, and others, composing the board of trustees, etc., from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of-¡New York on the 3d day of October, 1910, granting the petitioner’s motion for a peremptory writ of mandamus requiring the defendants to reinstate him as a general inspector of construction of the Bellevue and Allied Hospitals.

<p>Pleading — libel — partial defenses to two causes of action — when each, must be treated as defense to both publications — conclusions of fact — plea in justification — words libelous per se — words referring to plaintiff— defense insufficient as justification — privileged communications — criticism of public officer — charges exceeding fair criticism.</p> <p>Where neither of two defenses to an action for libel is pleaded as a partial defense and neither specifies which of. the two causes of action alleged it purports to answer, each defense must be treated as a complete defense to the entire complaint.</p> <p>Such defenses are not aided by an allegation that the articles complained of are true, that being a mere conclusion where no facts are stated.</p> <p>A plea in justification must be as broad as the .charge, and in determining the scope of the latter the whole article must be considered and such construction put upon the language as would naturally be given to it.</p> <p>A publication charging the police commissioner of the city of New York with various illegal acts, among others the placing of a picture of one arrested upon an unfounded charge in the Rogues’ Gallery and refusing to remove the same, etc., examined, and held, that the word "scoundrelism” as it appeared in said article, although not used in direct connection with the plaintiffs name, referred to him and was libelous per se.</p> <p>As the libelous charge of scoundrelism referred to .the plaintiff, one of two defenses in justification which in no way attempts to justify the charge of scoundrelism is insufficient as it is not as broad as the libel, and, hence, a demurrer thereto should be sustained.</p> <p>A chargé that the plaintiff as police commissioner is doing all that he can to make it impossible for a boy who was arrested to lead an honest life and make an honest living, and to force him instead to a life of crime, is libelous per se.</p> <p>A separate defense which, in relation to the boy arrested, merely charges that the plaintiff refused to remove his photograph and measurements from the Rogues’ Gallery and that by reason thereof a series of subsequent arrests followed, is no justification of the charge aforesaid, for if true it would not justify a finding that the charge was true.</p> <p>Libelous publication examined, and held, that a charge that incompetents, corruptionists and.buffoons are put in rulership over men on the police force and compel them against their will to make false arrests referred to the plaintiff, among others, so as to be libelous as to him and that a separate defense which attempted to make no justification of said charge was insufficient on demurrer.</p> <p>Separate defense to an action for libel examined, and held, insufficient to justify a charge that it was an ordinary thing for the plaintiff as police commissioner to refuse to obey the decisions of the courts and that he compelled the police force to disobey them; or to justify a charge that the despotism and lawlessness of the police commissioner is shocking, or that he is possessed of the most dangerous delusion that officials can entertain in a free government, namely, that he is under no legal restraint whatever.</p> <p>As a justification must be as broad as the libel itself, that is to say, must meet all the libelous charges, a defense in justification will not be sustained merely because it completely justifies one of several libelous charges.</p> <p>Whatever privilege a letter written to a mayor of a city charging a police commissioner with unlawful acts in connection with his office may have, the privilege is destroyed if the defendant gave the letter out for publication before it was received by the mayor.</p> <p>Where the statements of fact in a letter to a mayor attacking the official honesty of a public officer are true, and the criticisms upon him fair and honest, without malice, the communication is privileged'. But under the guise of privilege the character and motives of the official criticised may not be attacked.</p> <p>Whether the bounds of fair criticism have been exceeded or not is a question of law for the court. •</p> <p>Publication attacking the character of a police commissioner examined, and held, not to be fair comment upon his official acts, but defamatory of his character in so far as it charged him with scouridrelism, incompetency,_ corruption, buffoonry, despotism, lawlessness, and in being possessed of the most dangerous ■and destructive delusion that an official can entertain in a free government.</p> <p>Held, further, that a defense alleging privilege was insufficient on demurrer.</p> <p>Miller and Dowling, JJ., dissented, with opinion,</p>

Appeal by Mary B. Warner, as executrix and legatee,-from parts of an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 28th day of April, 1910, as resettled, confirming the report of a referee appointed to pass upon the accounts of the executor.

Appeal by the defendant, the United- Dressed Beef 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 Y ork on the lUli day of November, 1909, upon the verdict of a jui-y for $2,000, and also from an order entered in said clerk’s office on the 22d day of November, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edward Holbrook, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of January, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Libel — article charging one with holding a sinecure—pleading—setting forth article in full — failure to plead innuendo.</p> <p>The test in determining whether an article is libelous is whether or not its tenor and the language used naturally import a criminal or disgraceful charge to the mind of an intelligent man.</p> <p>It does not import anything criminal or disgraceful to' charge that a man has received money from the New York city treasury, or that his services as an expert witness were not worth what he was paid.</p> <p>Where a newspaper article stated that a number of sinecurists had been dropped from the city payroll and later stated that the plaintiff as an expert appraiser “ took from the city treasury §4,800 for his work,” but nowhere intimated that plaintiff was one of those dropped from the payroll, or that he was ever discharged, he cannot recover on the ground that the article charged him with having been discharged by reason of his incompetency and for fraudulent conduct. Even if the article did charge him with being removed from a sinecure, that is far from charging him with being removed for fraud and incompetency.</p> <p>A charge that plaintiff was one of a large number of unnecessary employees of the board of water supply whose positions were practically sinecures does not import a charge of participation in a conspiracy to cheat and defraud the city.</p> <p>Where in an action for libel the alleged libelous article is not pleaded with innuendo but is set out in full and annexed to the complaint, the pleading is demurrable if it appear upon reference to the article that the charges complained of were not in fact made and it is unnecessary to search the article for any libelous meaning not á subject of complaint.</p> <p>An alleged libelous article examined, and held, not to charge plaintiff with having conspired to cheat and defraud the taxpayers of New York city.</p> <p>Glabke, J. | dissentedi</p>

Appeal by the defendant, the Hudson Rivei Realty Company, from a judgment of the Supreme Court in fav’pr of the plaintiff, entered in the office of the clerk of the county of New York on the 23d 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 defendant’s motion for a new trial made upon the minutes.

Appeal by Susie Morton 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 26th day of October, 1910, dismissing the proceeding for the probate of the last will and testament of Charlotte Miller, deceased, because of neglect to prosecute.

Appeal by the plaintiff, Georgiana H. Salter and by the defendants, Georgiana H. Salter, as administratrix, etc., and another, from parts of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 3d day of August, 1910, upon the decision of the court, rendered after a trial at the New York Special Term,' construing the 5th, 6th and first part of the 7th clauses of the will of Margaret Ann…

Appeal by the defendant, the Press Publishing Company, from a judgment of the Supreme Court in favor óf the plaintiff, entered in the. office óf the clerk of the county of New York on the 23d day of Hovember, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Turner Construction Cornpany, from a judgment of the Supreme Court -in. favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of July, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 20th day of August, 1910, de'nying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Addie Fromme, as executrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on. the 28th day of March, 1910, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 29th day of March, 1910, denying the motion of the defendant’s testator for a hew trial made upon the minutes.

Appeal by the- plaintiff, Arthur Brisbane, from a judgment of the Supreme Court in favor of the defendant, entered in the office o.f the clerk of the county -of New York on the 17th day, of January, 1910, upon the decision of the court, rendered after a trial at'the New York Special Term, sustaining'the defendant’s demurrer to the complaint.

Appeal by the defendant, the Otis Elevator Company, 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 6th day of May, 1910, denying the said defendant’s motion to compel the plaintiff to separately state and number the facts constituting each cause of action in the complaint.

Appeal by the defendant, The Great Atlantic and Pacific Tea Company, from a 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 9th day of February, 1910, upon the verdict of a jury, for $5,500, and also from an. order entered in said clerk’s office on the 11th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Walter 3Vf. Ostrander, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric-of the'county of Mew York on the 19tli 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 plaintiff, Ferdinand Steiger, from a judgment of the Supreme Court in favor of the defendants Julius London and Moses Press, entered in the office of the clerk of the county of Méw York on the 25th day of March, 1910, iipon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendant, J. H. & G. K., Eagle, Inc., 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 February, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Master and servant — negligence — injury from skids used to unload merchandise — such implement is . not “ way ” within Employers’ Liability Act — evidence — use of different style of skids by others — erroneous charge.</p> <p>Skids consisting of planks fastened by crosspieces which were placed by employees between a car and the platform of a warehouse for the purpose of unloading merchandise from the ear are not “ways” within the meaning of the Employers’ Liability Act,- but on the contrary, are appliances furnished for the use of servants. The master is not obliged to furnish the best known appliances, but merely such. as are reasonably safe and suitable — such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances.</p> <p>Hence, where an employee, having helped to place such a skid as a detail of his work, was injured owing to the fact that fellow-servants in pushing a truck along the skids, which were secured against movement by a cleat on the plat* form of the warehouse, so operated it as to cause one of the skids to fall, the master is not liable where the skids had been used for many years without accident and were similar to those used by others engaged in the same business and were reasonably safe and proper.</p> <p>In an action to recover for injuries .so caused it is error to receive evidence that another company used a different kind of skid fastened by hooks, where it is not shown that such skids were in general use, but on the contrary it appears that those used by the defendant were of the kind in general use and had been used for many years without accident.</p> <p>In such action it is error to refuse to charge that such skids are not a “ way ” within the meaning of the Employers’ Liability Act, and that if an employee is injured by the negligence of a fellow-servant in using such appliance it is one of the risks of the employment.</p> <p>So too it is error to charge that if the master had failed to provide a safe skid, the fact that the negligence of the plaintiff’s fellow-servant contributed toward the accident is no defense.</p>

Appeal by the defendant, William Darragh, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 4th day of June, 1909, convicting the defendant of the crime of manslaughter in the first degree.

Appeal by the. defendants, Joseph . J. Lanzit 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 November, 1910, denying the defendants’ motion to vacate an attachment.

<p>Fraud—action for damages — necessity of showing damage — when former judgment binding as to validity of will —judgment on pleadings — reply—rescission of deeds and releases — what must he alleged.</p> <p>An action lies to recover damages for fraud, deceit and false representations in procuring the execution, of deeds and releases. It is not necessary for the plaintiff to return or offer to return the consideration received, as the action rests upon an affirmance, not upon an avoidance, of the instruments.</p> <p>But it is essential for the plaintiff to show that she suffered damage from tlie deceit, for fraud without damage will'not sustain the action.</p> <p>The complaint in an action for fraud alleged that the mother of plaintiff’s deceased liushand had in his lifetime executed a deed of trust for his benefit, giving him power to dispose of the principal by will or, if he left no will, directing that it he distributed to his next of kin as though he had died intestate; that he, by a will, left the bulk of the estate to his mother, hut made no provision for the plaintiff; that after the will had been admitted to probate plaintiff brought an action in 1903 to set aside the said probate; that a compromise was effected whereby the decedent’s mother, who was the principal legatee, paid the plaintiff certain money and that she thereupon executed various deeds, releases and acquittances to thé mother and also consented to the entry of a decree declaring the paper to he the decedent’s will. The complaint further alleged that the will was invalid and that plaintiff made the compromise because of misrepresentations as to the value of her deceased husband’s estate and asked i.->x damages therefor.' The answer alleged that in 1901 plaintiff had threatened to oppose the probate of the decedent’s will and had received in compromise a sum of money for which.she executed certain deeds releasing all her interest in her late husband’s property; that the will was then admitted to probate and the further proceedings set forth in the complaint were had; that the final decree in the action to set aside the probate enjoined, pursuant to section' 3653a of the Code of Civil Procedure, all parties (including the plaintiff) from “ maintaining any action *’ * * based upon a Claim’’ that the paper probated was not the will of the decedent. The answer set up the judgment and the releases- of 1901 as separate defenses. The reply did not effectively deny the judgment. .</p> <p>Held, that section 3658a of the Code of Civil. Procedure is a statute of finality and forbids reopening the question as to the .validity of the will in any form;</p> <p>That plaintiff in order to show damages for the alleged fraud must prove the invalidity of the will, which she was enjoined from doing by a decree of the court;</p> <p>That the defendant should have judgment on the pleadings.</p> <p>Moreover, even if plaintiff could prove that, she was induced by fraud to execute the deeds and releases of 1908, she would be unable to show that she suffered damage, inasmuch as she had released all her rights to the estate by the deeds executed in 1901.</p> <p>Although plaintiff’s reply alleged that the execution of the deeds of 1901 was due to defendant’s fraud and misrepresentation, it was insufficient to entitle her to ask for their rescission when there are no facts alleged showing that she acted promptly on discovering the fraud, and has restored what she received under the instruments.</p> <p>The reply in such case must be tested by the same rules that would be applied to a complaint in an action for rescission and, if it do not contain all the alie-. gations necessary to such complaint, it is no answer to the separate defense setting up the deeds of 1901 as a bar to the action.</p> <p>The modification of the rule that one suing to rescind a contract for fraud may •retain so much of what he received under it as he was entitled to receive in any event, does not apply when it was never admitted that plaintiff upon .the execution of the deeds of 1901 was entitled to receive anything.</p> <p>A plaintiff cannot in a reply introduce a new cause of action, but may only, set up new matter not embraced in the complaint which, if established, will destroy the efficacy of an affirmative defense.</p>

Appeal by the defendants, Jane Ann Smitley, individually, etc., and others, from an order of the Supreme Court made at the New York Special Term aiid entered in the office of the clerk of the county of New York on the 24th day of June, 1910, denying the said defendants’ motion to punish the plaintiff for .contempt of a' judgment in the first above-entitled action.

Cross-appeals by the plaintiffs, Julius Steinwender and others, and by the defendant, The Philadelphia Casualty Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New York on the I'Tth day of August, 1909, upon the report of a referee, with, notice of an intention by the Philadelphia Casualty Company to bring up for review an order entered in said clerk’s office on the 16th day of August, 1909,…

<p>Principal and surety—foreclosure of mechanic’s lien — defense that contract was obtained by duress, when not available to surety—laches.</p> <p>The surety on an undertaking given to discharge a mechanic’s, lien cannot defend a suit of foreclosure upon the ground that the plaintiff's contract with the owner was procured by fraud and duress, consisting of threats to abandon and to induce others to abandon the work, if the contract was not repudiated by the owner upon that ground.</p> <p>A contract procured by duress exercised by means of threats is not void but voidable; and as a general rule only the party upon whom the duress was exercised may take advantage of it to avoid the contract.</p> <p>Moreover, the defense is not available where there was no repudiation of the contract by the owner for nearly fifteen months after the date of execution and the surety did not seek to take the defense by amendment until the expiration of that time,</p> <p>McLaughlin, J., dissented.</p>

Appeal by the defendant, Frederic A. Cauchois, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1910, upon the verdict of a jury rendered by direction of the. court after a trial at the New York Trial Term.

<p>Appeal by the defendant, Harmon L. Eemmel, from a judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk-of the county of New York on the 3d day of February, 1910, upon the vei’dict df á jury, as to the first cause of action, and upon the dismissal of the complaint by direction of the court as to the third cause of action as against said defendant; and also from an order entered in said clerk’s office on the 9th day of February, 1910, denying the said defendant’s motion for a ¡new trial made -upon the ‘minutes; also, an appeal -by the plaintiff, Isabella Kn.udtsen, from so much of said judgment as dismisses the third cause of action as aforesaid.</p>

Appeal by the defendant, Raymond B. Fosdiok, as commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in tile office of the clerk of the county of New York on the 26tli day of August, 1910.

Appeal by the plaintiff, Edward W. Berger, from an order of the Supreme - Court, made at the New York Special Term and entered in the office of the cle.rk.of the'county of New York on the 18th day of October, 1910.

Appeal by the defendant, The ' German Union Fire' Insurance Company of Baltimore, from a judgment of the Supreme Court in favor of the plaintiff, entered in .the office of the clerk of the county of New York on the 28tli day of May, 1910, upon the. verdict of- a jury rendered by direction of tlie court, and also from an order entered in said clerk’s office on the 27th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Attorney disciplined — unprofessional conduct.</p> <p>Attorney at law disciplined by suspension from practice for writing threat-' ening letters in behalf of a client in an endeavor to obtain incriminating correspondence.</p> <p>The power of the court to discipline an attorney is not limited to cases where his act was technically criminal, but he' may be punished where guilty of unprofessional conduct showing a lack of due appreciation of the rules of ethics by which a lawyer’s conduct should be regulated.</p>

<p>Abatement of action — stay on death of party — power of court not limited by Code — survival of action to establish will — death of plaintiff — when action will be continued without substituting party plaintiff’.</p> <p>While a stay of proceedings on the death of a party to an action is not in terms prescribed by the Code, it necessarily follows from section 765 which prohibits ’ the entry of a judgment against a party who dies before a verdict, report or decision is actually rendered against him and no proceedings leading up to a judgment can be takpu.</p> <p>The power of the court to revive an action which does not abate ou the death of' a party is not limited to the cases specifically enumerated in sections 755 to 765 of the Code of Civil Procedure.</p> <p>An action under section 2653a of the Code of Civil Procedure to. establish the validity of a will does not abate ou the death of a party.</p> <p>On the death of a'non-resident plaintiff who brought such action individually as legatee and as executor of the testator,-the court not- being able to bring in the foreign representative of the decedent, will allow the action-to proceed under •the existing title without substituting a nominal plaintiff where the next of ■ kin made- defendants desire its continuance, for they may be practically considered as plaintiffs or defendants as they respectively seek to sustain or to destroy the will.</p>

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

<p>Appeal by the defendant, Julius Joseph, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleric of the county of New York on the 15th day of November, 1910.</p>

Appeal ■ by the defendant, the Schwarzschild & Sulzberger 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 27th day of September, 1910, granting plaintiff’s motion for judgment on the pleadings urider section 547 of the Code of Civil Procedure.

Appeal by the defendant, The National Eeserve Bank of the City of New York, 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 26th day of May, 1910, affirming a judgment of the City Court of the city of New York in favor of the plaintiff rendered on the 21st day of December, 1909, and also (as stated in the notice of appeal) from the judgment entered in the office of the clerk of the City Court of…

<p>Evidence — presumption as to survivorship of persons perishing in common disaster — insurance — accident insurance — policy construed.— when proceeds payable to estate of insured rather than to that of beneficiary — burden to-show survivorship in common disaster — chartered steamboat as common carrier.</p> <p>■Where two or more persons die in a common disaster there is no presumption of survivorship, or of simultaneous death.</p> <p>A printed clause in a policy of accident insurance stating that the indemnity for loss of life shall be. payable to the beneficiary named in a stub attached thereto or in the' event of the prior death of such beneficiary, or in the event of no beneficiary being named, then to the representatives of the assured, must be tallen as the language .of the assured for by accepting the policy he adopts the language used by the insurer.</p> <p>Where one insured under such policy named his sister as beneficiary and both of them died in a common disaster,'the proceeds of the policy are payable to the estate of the assured in the absence Of evidence that the sister survived ■ her brother. The 'burden is upon the representative of the sister, or those claiming under her, to establish her survivorship.</p> <p>Although the policy only insured against injuries while the assured was actually riding as a passenger on steamboats or other public conveyances prpvided by a common carrier for passenger service only, the insurer is liable where the assured perished on a burning steamboat which was chartered for a lump sum by a society for an excursion.</p> <p>Laughlin, J., dissented, with opinion.</p>

Appeal by the plaintiff, Martin L. Ungrich, 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 5th day of April, 1910, 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 defendant, The Fidelity and Casualty Company of New York, 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 December, 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 3d day of January, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Petition of the Bar Association to discipline an attorney.</p>

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

<p>Appeal by the defendant, Dorothea Rentier, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 27th day of January, 1910, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 1st day of March, 1910, deny-, ing the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Morris Schinasi, 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 7th day of November, 1910, denying the defendant’s motion to vacate; an order for his examination before trial. ■

Appeal by Walter M. Rosebault from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1910, imposing costs on the attorney personally upon the denial of a motion for a reargument. '

<p>Appeal by the plaintiffs, Frances L. Wallace and another, as committee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1910, granting the defendants’ motion for judgment on the pleadings made pursuant to section 547 of the Code of Civil Procedure, and also from the judgment entered on the same day upon such order.</p>

Appeal by the plaintiffs, Bobert H. Ingersoll and others, from a judgment of the Supreme Court in their favor for $100, entered in the office of the clerk of the county of New York on the 1st day of July, 1910, upon the verdict of a - jury, and also from an order entered in said clerk’s office on the 10th day of June, 1910, denying the plaintiffs’ motion for a new trial, (

Appeal by the plaintiff, Louise Tiedjen, as administratrix, etc., • from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of March, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 30th day of March, 1910, denying the plaintiff’s motion for…

Appeal by the defendant, Otto Boettcher, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered on the 25th day of October, 1910, affirming a judgment of a city magistrate of the city, of New York convicting the defendant as a disorderly person.

<p>Motion to dismiss an appeal.</p>

<p>Stay — judgment for alimony — order punishing for contempt — removal of defendant to foreign State — injury to defendant’s health.</p> <p>Proceedings to enforce a foreign judgment requiring a defendant to pay alimony and also to enforce an order punishing him for contempt in failing to obey the judgment will not be stayed, bécause New Jersey, whither he has removed to escape the jurisdiction of the court, is injurious to his health, especially where he repudiates a stipulation of his former counsel whereby he agreed to pay a certain sum each month to be applied on the judgment.</p>

Appeal by the plaintiff, E. Gaston Higginbotham, from a judgment of - the Supreme Oourt in favor of the defendant, entered in the office of the cleric of the county of New York on the 6th day of July, 1910, Upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the. 1st day of July, 1910, denying the plaintiffs motion- for a new trial made upon the minutes.

Appeal by the defendant, 0. Otto Kramer, from a 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 9th day of May, 1910, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 6th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes in an action for personal injuries alleged to have been sustained by defendant's negligence.

<p>Evidence — weight of depositions taken in foreign country — banks — action to recover deposit — facts not justifying recovery — principal, and agent — duty of gratuitous agent.</p> <p>The testimony of witnesses taken by deposition in a foreign country is entitled to the same weight as if taken here, even though the foreign witnesses cannot, be punished for perjury in our courts.</p> <p>Action against a bank to recover a deposit which the plaintiff alleged had been expended by the defendant in purchasing stock not ordered by him, the claim being that the defendant through mistake had purchased the wrong stocks. - Evidence examined, and held, that a verdict for the plaintiff was against the weight of the evidence.</p> <p>It seems, that a bank which receives money on deposit to be applied to the payment of stock, although acting gratuitously, must exercise the care which is customary with banks under like circumstances.</p>

Appeal by the plaintiff, Walter A. Ledbetter, as receiver, etc., from a judgment of the.Supreme Court in favor of the defendant, entered in the office of the clerk of the county of blew York on the 5tli day of April, 1910, upon the .verdict of a jury rendered by direction of the court, and also from ah order entered in said clerk’s-office on the 4th day of April, 1910, granting the defendant an additional allowance. ■ . .

Appeal by the plaintiff, Julia A. Dempsey, 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, 1909, upon the dismissal of the complaint by direction of the court at. the close of plaintiff’s case, on a trial at the New York ' ■ Trial Term, in an action for personal-injuries alleged to have been caused by the defendant’s negligence.

Appeal by the applicant, James J. Hines, 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 tlié 24th day of October, 1910, denying his application.

Appeal by-the defendant; Frederick Ayer, from an order of the Supreme. Oourt, 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 October, 1910, directing the defendant to furnish a verified bill of particulars as to one of the defenses set up in the answer.

<p>Municipal corporations — excavation of street by city for purpose of constructing public docks —when abutting owner entitled to damages for loss of access and lack of lateral support—excavation not made for street purposes — equity — money damages.</p> <p>Where a city constructing public docks for which it is to receive rent and dockage charges, excavates a public street leading thereto so that an abutting owner is cut off from access to his property for two years and part of his land falls into the excavation for lack of lateral support, he is entitled to recover substantial damages. This, because the excavation was not for a street use, but,. on the contrary, the city is embarking in a business enterprise from which it is to receive compensation so as to become liable like any other person or corporation engaged in a similar enterprise.</p> <p>A court of equity having assumed jurisdiction of a suit to enjoin such excavation will award money damages when the necessity for equitable relief has passed owing to the fact that the street has been restored to its former condi- ' tion, if neither party asks to go to the jury on the :question of damage.</p> <p>Dowling and McLaughlin, JJ., dissented, with opinion.</p>

<p>. Appeal by William A. Brendergast, as comptroller, etc.', 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 23d day of September, 1910, as resettled and amended by an order entered the 18th day of October, 1910, granting a peremptory writ of mandamus requiring the appellants to apply awards for damage parcels Nos. 2 and 8 in the proceedings for opening Thayer and Arden streets- from Broadway tó Nagle avenue in the twelfth ward in the borough of Manhattan, JNew York, to the payment of -certain assessments for. benefits against lands of the petitioner. .</p>

Appeal by the relator, The National' Park Bank, 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 5th. day of October, 1908, denying the relator’s motion for a peremptory writ of mandamus to compel defendants to receive and receipt for a certain tax and to cancel the record of a tax sale of certain premises owned by the relator.

<p>Husband and wife — annulment of marriage —remarriage before divorce becomes effective — law of domicile governs action for annulment — when validity of .marriage governed by place of contract — continued cohabitation after impediment to marriage removed — legitimacy of children.</p> <p>The courts of this State will not give effect to a foreign law which permits one . already married to again marry while the bond of matrimony is in full force.</p> <p>It will be assumed that no civilized Christian nation permits polygamy.</p> <p>The law of the matrimonial domicile governs an action for the annulment of a marriage regardless of where it was solemnized or where .the offense was committed. But in the absence of a statute of the State of tlie domicile expressly regulating foreign marriages the lex loci contractus governs the validity of the marriage, unless it be odious by the common consent'of nations.</p> <p>Where an action for divorce brought in a foreign country against a resident of this State was not perfected by reason of the fact that the decree was not registered with the proper civil authorities, a second marriage by such .person with a woman also a resident of this State is polygamous, and its invalidity will be declared in a suit for an annulment. '</p> <p>As such polygamous marriage is void, not voidable, it cannot be ratified.</p> <p>Moreover, the fact that tlio parties to the second marriage continued to live together after the foreign divorce was perfected by registering the decree did not constitute a new marriage if there was no ceremonial marriage or a written contract of marriage as required by the Domestic Relations Law. '</p> <p>A. polygamous marriage is void without decree of court, but the courts will entertain an action to declare its invalidity.</p> <p>Where a marriage is annulled because one of the parties had another spouse living, the decree should determine that the issue of the second marriage are the legitimate children of the innocent party.</p>

<p>Contract—written agreement to repay loan made to third party — evidence — when parol evidence admissible — pleading — waiver of defect by failure to object to evidence.</p> <p>Where the assignee of claims for indemnity due under several fire insurance ■ policies in consideration of a loan to the assignor made by the plaintiff, agreed to repay the loan “ upon receipt of payment of Fire Insurance Policies,” parol evidence is admissible to show that the loan was to be repaid when the amount thereof was collected from the. insurer, and was not to be. deferred until the sums due on all the policies had been collected.</p> <p>Evidence in an action to recover said loan examined, and held, that the agreement of the parties as to the time of repayment was a question for the jury. •</p> <p>Although the complaint in such action did not allege that the loan was to be paid ■ out of the first moneys collected on the policies, and no application to amend the complaint in this respect was made, the defendant by failing- to object to evidence of the actual agreement between the parties waived any objection to the form of the complaint.</p> <p>Laughlin and McLaughlin, JJ.,'dissented, with opinion.</p>

■Appeal.by .The City of New-York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of May, 1907, confirming the report of commissioners of estimate and assessment herein.

Appeal by the plaintiff, Hyman Eashkoff, 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 February, 1910, upon the dismissal of the complaint by direction of the court during the presentation of the plaintiff’s case, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.

. ■ Appeal by the defendants, William J. Gaynor, as mayor of the city of New York,, and others, etc., from an order of the Supreme Court, made at the New' York Special Term and' entered in the office of the clerk of the county of New York on tire 2Tth day of July, 1910, granting a peremptory writ of mandamus.

<p>Application to amend an order on an appeal' by the defendants, Louis Brown and another, from a judgment of the Court of General Sessions of the Peace in and for the county of Mew York, entered in. the office of the clerk of said court on the-14th day of February, 1910.</p>

• Petition of Charles S. Whitman, district attorney of the county of New York, stating certain facts in regard to the respondent, a city magistrate, and asking that the court investigate the facts alleged in the petition, and deal with the same according to law and the practice of this court.

Appeal by the relator, Wilbur C. C'osby, 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 Hovember, 1910.

<p>Appeal by the defendant, Max F. Arp, from an order of the ' County Court of Kings- county, entered in the office of the clerk of said county on the 10th day of May,. 1910, granting the .plaintiff’s motion for judgment on the answer of the said defendant as frivolous, ■</p>

<p>Appeal by the defendant, the William'M. Crane Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the-9th day of November, 1909, upon the verdict of a jury for $550, and also from an order entered in said clerk’s office on the 6th day of November, 1909,. denying the defendant’s motion for a new trial made upon the minutes, •</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from .a judgment of the Municipal Court of the city of H ew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 28th day of February, 1910. ' - ' ’

<p>Municipal corporation — negligence —fall on steps of comfort'station — . plan of structure — duty of repair — contributory negligence.</p> <p>Where power- is conferred on public officers ór a municipal corporation to make improvements such as streets, séwers, etc., and to- keep 'them in repair, the •duty to make them is quasi-judicial or discretionary and for a failure to exercise this power, or for an erroneous estimate of the public needs, no civil action can be maintained. . • '. .</p> <p>Thus, where the board-of aldermen of New York city, pursuant to authority to • provide comfort stations on the streets, authorized the .building of certain stations, the city is not liable to one who was injured by slipping on the steps, because the plan failed to provide for a handrail or for rubber or metal treads on the steps, unless it appear that the plans as made and executed were not adopted by the proper authorities. The burden of showing the absence of such adoption is on the plaintiff. '</p> <p>Where, however', such a structure has been duly erected, the duty of keeping it in repair is ministerial and for neglect of such duty an action by one injured will lie against the city.</p> <p>Where a man of mature age, while descending the stairway of a comfort station, slipped, fell and suffered fatal injuries and there is evidence'that the accident was occasioned by reason of. the fact that the steps had been worn smooth and were damp and slippery, it is error to dismiss the complaint for the question of the negligence of the city was for the jury.</p> <p>Actual notice to the city of the condition of the steps was not essential, for it was incumbent upon the authorities to exercise a reasonable degree of watchfulness under the circumstances.</p> <p>Where it appears that at the time of the accident the decedent was descending the steps slowly and tried to save himself as he fell, the question of contributory negligence was for the jury.</p>

<p>Appeal by the defendant, William .Meister, from two orders of ■ tlie Supreme Court,'made at the Kings County .Special Term and-, entered in the office of the clerk of the county, of Kings onthe2Íst day of June, 1910, one of which granted the plaintiff leave to serve a complaint, and the other denied the defendant’s.motion to dismiss the same. • • -</p>

Appeal by the plaintiff, William W.-Peniston, from a judgment of the Municipal. Court of the city of Mew York, .borough of Brooklyn, in fav.or. of the defendants, rendered on the 5th day of • May,-' 1910,' and also from an order denying the plaintiff’s motion for a new' trial. - ' V . . •'

Appeal by the defendant, William-Wohlgemuth, from a judgment of the. Municipal Court of the city of New York, borough of Brooklyn, in favor of, the plaintiff, rendered on the 20th day of May, ,1910. - -

' .Appeal by- the .defendant, The City of New York,, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor óf the plain till, rendered on the 27th day of April, .1910.

<p>Master and servant — negligence — injury to employee of sub-contractor by breaking plank' — facts not establishing liability of general contractor — evidence.</p> <p>A contractor engaged in the erection of a building is not liable to the employee of a sub-contractor who was injured by the breaking of a plank which was placed as a runway leading from the front entrance of the building to the street, where the runway was not necessary in order to obtain access to the building, and there is no direct evidence that the defendant furnished the plank which broke.</p> <p>Evidence in an action to recover for injuries so caused examined, and held, insufficient to establish .that the defendant furnished the plank which broke.</p> <p>Evidence that the defendant’s president, when told that the plank was cracked, replied, “That plank is good because I can.use it for two jobs more," is at most a mere expression of opinion in regard to a detail of the work.</p>

Appeal by the defendant, the.Newburgh Light,'Heát and Power 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 4th day of November, 1909,.upon the verdict of a jury, for $.10,000, and also from an order entered in. said clerk’s office on the 10th day of November, 1909, denying the said defendant’s motion for a new trial made upon the minutes. ' '

Appeal by the defendant, the Illinois Surety Company, from a judgment of the Municipal Court of the city of New York, borough o'f Brooklyn, in .favor of the plaintiff, rendered <?n the 28th day.of April, 1910.

• Appeal by the defendant, the-Wells Brothers Company of Rew, York, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of Rich- • mond on tbe 18th day of April, 1-910, upon the vei’dic't 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 defendant, the Degnon Realty and Terminar Improvement '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 20th day of April, 1910, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 29tji day of April, 1910,' denying the defendant’s motion for a new trial made upon the minutes. •

Appeal by the defendant, the ■ Kraslow Construction Company, from a'judgment of the:Municipal Court of the city of the New York in.favor of the plaintiffs, entered in the clerk’s office of said . court on the 31st day of May, 1910, for the-sum of. $394.20, after a trial without a jury. . ■ .

<p>Conversion — evidence not j ustifying recovery.</p> <p>A judgment for the conversion of goods claimed: by the-plaintiff - under a chattel mortgage will be reversed where the plaintiff refuses to testify that he. gave any money for the mortgage aiid there is no proof of the value of the property aside from the price brought at a sale on execution.</p>

Appeal by the plaintiff, Oliver M. Arkenburgh, from a judgment of the Municipal Court of the city of New Tork in favor of the defendant, entered in the office of the clerk of said court on the 5th day of February, 1910, for the sum of twenty-five dollars costs.

Arpead by the plaintiff, George P. Herwin,- from- a Judgment of the Supreme Gourd in favor of the defendant Yittoria Eomanelli, entered in the office of the clerk qf the county of Kings on the 26,th day of January, 1910, upon the decisión of the court rendered after a trial at the Kings County Special Term.

<p>Insurance — fraudulent statements of insured —treatment for disease — evidence — identity — presumption.</p> <p>There can be no recovery upon a policy of life insurance where the insured made a written statement to the effect that he had notbeen attended by any physician within three years and had never been under treatment in any hospital if, as a matter of fact; he had received medical treatment in a hospital for a month and left the institution only seven days before making the written statement.</p> <p>Evidence as to identity of the insured with the person who was treated in the hospital examined, and held, that the identification was full'and complete.</p> <p>The fact that the name of the insured was Henry G. Harris, and that of the person treated in the hospital was Henry Harris, standing alone raises a presumption of identity of person.</p>

Appeal by the defendant, George F. Baker, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡Richmond on the 4th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the Town of Oyster Bay 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 Nassau on the 7th day of January, 1909, upon the decision of the court, rendered after a trial' at the Nassau Special Term, continuing a preliminary injunction.

. Appeal by the plaintiff, McNulty Brothers, and the defendants, Robert T. McMurray and Brother and others, 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 Kings on the 23d day of August, 1909,. upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the 4th day of November, 1909.

Appeal by the defendant, Henry W. Poor, from a judgment of the Supreme Court in favor of-the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of January, 1910, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 10th day of January, 1910,'denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Agostino Esposito, 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 4th day of January, '. 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term. .

Appeal by the defendant, Charles Cranford, from a judgment of-the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2(ith day of January, 1910, upon the verdict of a jury for $300, and'also from an order entered in said clerk’s office on the 28tli day of January, 1910, denying the defendant’s motion for a new trial made upon the' minutes.

<p>Appeal by the defendant, Henry Webendorfer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 2d day of July, 1910, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Samuel Sassulsky and another, from a judgment of the County Court of Kings county in favor of "the plaintiff, entered in the office of the clerk of said county on*the 31st - day of March, 1910, upon the decision of the court rendered after a trial before the court without a jury,</p>

Appeal by the defendants, the Village of Ossining 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 Westchester on the 31st day of October, 1910, upon the decision of the court rendered after a trial at the Eockland' Special Term.

Appeal by the plaintiff, Lorenzo Matrnseiello, from a judgment of the Supreme Court in favor of the defendant, entered in the office of tlie clerk of the county of Richmond on the 17th day of June, 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.

<p>Appeal — failure of foreign corporation to prove authority to do business here — when objection to. defect too late — mechanic’s lien — action in court not of record — failure to allege ■ that plaintiff has brought no other action —court — Municipal Court cannot decree foreclosure and sale in suit on mechanic’s lien.</p> <p>Although a foreign corporation suing in the courts of this State, having alleged that it was duly authorized to do business here, failed to prove such authority,: the defendant who did not specify the defect as a ground for his motion to dismiss cannot urge the objection for the first time on appeal, as had the objection been specified the defect might have been obviated by proof,</p> <p>Moreover, the objection to the capacity of the plaintiff to sue cannot be urged where it was stipulated in the record that the corporate capacity and legal capacity of the plaintiff to sue is admitted without formal proof. .</p> <p>The provisions of the Code of Civil Procedure relating to suits to foreclose a mortgage do not apply to an action to foreclose a mechanic’s lien brought in a court not of record, although by section 43 of the Lien Law they are made applicable to such suit when brought in a court of record.</p> <p>' Hence, where such an action is brought in the Municipal Court of the city of New. York the plaintiff need not allege that he has brought no other1 action to collect the amount claimed to be due, although such allegation would be necessary were the action in a court of record.</p> <p>It seems, in tire latter case a personal judgment could be rendered in- the absence of such allegation if the complaint showed an action for goods sold and delivered and the.defendant did not demand a jury trial.</p> <p>In ¡an action on a mechanic’s lien in the Municipal Court of the city of New York, a money judgment may be rendered against the defendant, but the court has no power to decree a foreclosure and sale.</p> <p>"Where a money judgment and a decree of foreclosure, and sale have been rendered in said court the judgment will be modified by striking out the provisions for the sale. .</p>

Appeal by the plaintiff, Henry, Paul, an infant, 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 26th day of Hovember, 1909, upon, the dismissal of the complaint by direction of the court at the close of plaintiff’s case on á trial at the Richmond Trial Term.

Appeal by the defendant, J.' Ives Plumb, from .a judgment of the Supreme Gouft in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 7th day of March, .1910,' upon the* decision of the court rendered after a trial at the Suffolk Special Term. ■’ -

Reaegument of appeal by the plaintiff, Michael Callahan, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 2d day of July, 1909, denying the plaintiff’s motion to set ■ aside the direction of the court dismissing the amended complaint upon the' trial as against, the defendants, the Munson Steamship Line and American Sugar. ¡Refining Company of-.¡New York, and denying the plaintiff’s…

Appeal by the plaintiff, Realty Associates, from that part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of September, 1910, which denied plaintiff’s motion for judgment on the pleadings.

Appeals by .the .defendants, Mary E. Leavitt and others, from parts of a. final judgment of the Supreme C.ourt in favor of the' plaintiff and the defendant, Edith M. Barker, entered in the office of the clerk of the county of Westchester on the 7tli day of May, 1909, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Appeal by the defendant, William Gould Brokaw, from a judgment of the Supreme Court in favor of the plain till, entered in the office of the clerk of the county of Nassau on the 26tli day of April, 1910, upon the verdict of a jury, and also from an. order entered in said 'clerk’s office on the 25th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

■ Appeal by Mary E. Butler and others, contéstants, from a decree of the Stirrogate’s Court of the county of Kings, -entered in said,Sur rogate’s Court on the 15th day of March,. 1916, .admitting to probate the propounded will of Sara A. McCarty, deceased.

Appeal by the defendant, The City- of Mount Vernon, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the .office of the clerk of said county ori the 13th day of January, 1910, upon the verdict of a jury, and also . from an order entered in said clerk’s office on the 19th day of Jan-. • uary, 1910,,denying the defendant’s motion for a new trial made upon the minutes.

<p>Master and servant—negligence — injury tp one operating putty-making machine —assumption :of risk — violation of rule — evidence.'</p> <p>At common law a servant by accepting employment upon, a defective machine, • with full knowledge of its defects, assumes the risks incident thereto.</p> <p>In a common-law action by. one operating a putty machine against his master ' for injuries alleged to have been caused by the defendant's negligence in providing a-defective machine, where the plaintiff testifies that while he was letting a batch- of putty run out he put his hand in the door of the machine; that the lever slipped because of a defective ratchet and reversed the motion of the scraper or knife of the machine, so that it cut off three of his fingers, he cannot' recover where it appears that lie had known of this defect for several weeks, during which the same' thing happened every time he mixed putty, and he made no complaint of the defect except to a fellow-servant.</p> <p>Where the defendant had posted a notice that employees should not place their hands in the pans while the machinery was in motion, it is error to refuse to charge that if plaintiff, when he put his hand in the machine, knowingly vio- . lated a rule of the defendants he cannot recover.</p> <p>Evidence examined, and held, that the defective ratchet was not the proximate cause of the accident.</p> <p>Hiiischbeeg, P. J.", dissented.</p>

Appeal by the defendant, the New York, Susquehanna and Western Railroad Company, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the- county of Orange on the 1st day of October 1910.

<p>Appeal by the plaintiff, Frank L. Entwisle, as trustee, etc., from. an order of the Supreme Oo.urt, made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 21st day of June, 1910, directing the .plaintiff to give security for costs.</p>

Appeal by -the plaintiff, Evelyn Day Bruner, from an order of the Supreme Coui't, made at the Kings County Special Term and entered in -the office of the cleric of the county of Kings on the 1st day of October, 1910, -sustaining the respondents’ demurrers to the complaint.

Appeal by the • defendants, Samuel Sargoy and others, doing business under the firm name, etc., from a judgment óf the Municipal Court of the city'of blew York, borough' of Brooklyn, in favor of the plaintiff, rendered on the 18th day of April, 1910.

Appeal by the petitioners, John A. Bensel and others, constituting the Board of Water Supply of the.City of New York, from two' orders 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 18th and 21st days of March, 1910, respectively, taxing and allowing bills of commissioners of appraisal for additional compensation ; and also¡ from an order entered' in said clerk’s office on the 13th day…

Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 20th day of May, 1910, and also from an order denying the defendant’s motion for a new trial.

Appeal by the plaintiff, Frank G. Swartwout, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendants, rendered on the 15th day. of June, 1910.

Appeal by-the plaintiff, the Empire -State Surety Company, from a- judgment of -the Municipal Court of the city of blew York, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of June, 1910, sustaining the defendant’s demurrer to the amended complaint upon the ground that the court did not have jurisdiction of the cause of action.

Appeal by the plaintiff, Petrone Wajczeliunas, from adjudgment of the Municipal Court of- the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 1st d&J of June, 1910, dismissing the complaint. . ' -\

<p>Cross-appeals by the plaintiff, Catharine E. Sheridan, suing, etc., and tile defendant, Charles Cardwell, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 17th day of March, 1910, directing a new trial, the defendant’s appeal being from the whole of said order and the plaintiff's from a part thereof.</p>

<p>Husband and wife — alimony — contempt—when wife estopped from claiming increased alimony;</p> <p>Although an order for alimony pendente lite entitled the wife to ten dollars a . week in addition to the amount set if she surrendered to her husband the premises in which she lived, the husband will not be punished for contempt in failing to pay the increased amount where it appears that the wife refused to permit him to borrow money on an insurance policy in order to pay the interest oh a mortgage on the premises, that after a foreclosure the husband procured a purchaser at a certain" price but the wife would not consent to the sale ■but insisted on a sale of the property to her own attorney on condition that her husband divide his equity in the premises equally with her, which he did.</p> <p>This, because under such circumstances there was no surrender of the premises to the husband, and the wife by her action waived her right. t¡o the increased alimony.</p>

Appeal by the plaintiff, Mary Pomerantz, 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 9th day of May, 1910, appointing a receiver of the rents and profits during the pendency of the action.

<p>Appeal by the defendant, the Lawyers Title Insurance and Trust Company, from a judgment of the' Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of July, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term in an action brought to foreclose a second mortgage Jor $15,000 upon certain lots in the borough of Brooklyn.</p>

Appeal by the defendant, Harry Fischel, 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 12tli day of April, 1910, denying the defendant’s motions for a bill of particulars and tó compel the plaintiff to reply, ,and also from an order entered in said clerk’s office on the 25th day of April, 1910, resettling the first order.

<p>Appeal by the petitioner, Patrick K. Roche, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of August, 1910, denying his application for a writ of mandamus to" compel the fire commissioner to place the petitioner' on the' pension roll’of the fire department.</p>

<p>Railroad — negligence — collision at grade crossing -^failure to operate gates — contributory negligence.</p> <p>Where gates guarding a railroad crossing had a conspicuous sign stating that they would be operated only from seven o’clock in the morning to eleven in the evening, the fact that the gatetender would sometimes operate the gates before the time set if he happened to begin his duties ahead of time, does not establish a custom obligating the railroad to operate the gates before seven o’clock, so as to make it liable for the death of a person who was killed while attempting to cross the tracks before that hour.</p> <p>A person who, while driving across railroad tracks and seeing a train approaching not inore than 500 or 1,000 feet away, and being then in a place of safety whipped up his horses in an attempt to pass before the train, was guilty of contributory negligence, which bars a recovery for death resulting from a collision with the train.</p> <p>Hirschberg, P. J., dissented.</p>

Appeal by the defendant, the Degnon Bealty and Terminal Improvement 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 18th day of February,' 191Ó, upon the- verdict of a jury for $4,250, and also from an order entered in said clerk’s office on the 19th day of February, 19Í0, denying the defendant’s . motion'for a new trial made upon the minutes.

Appeal by the plaintiff, the Curtis Bros. Lumber Company, from portions of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the. cleric of the county of Kings on the 10th day of Hay, 1910, upon the decision of the court; rendered after a trial at the Kings County Special Term, dismissing the complaint as to such defendants.

<p>Appeal by the plaintiff, Patrick Boleman, from two orders of the County Court of Westchester county, entered in the office of the clerk of said county on the 9th day of March and on the 18th day of April, 1910, respectively.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 25th.day of April, 19Í0, directed to William P. Baker, police commissioner of the police department of the city of ¡New York, commanding him to certify and return to tlie office of the clerk of the county of Kings all and singular his proceedings had in relation to removal of the relator from the police, force of the city of New York.</p>

^/Appeal ' by Maynard H. Clement, as State Commissioner of Excise, and another from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of October, 1910, directing the appellants to issue' to the relator herein a liquor tax certificate.

Appeal by the defendant, the Rockville Centre Milling and Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk-of the county of Nassau on the 26th day of February, 1910, upon the verdict' of a jury for $2,750, and also from an order entered in said'clerk’s office on the 25'tli day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeals by " the plaintiffs, Louis A. Seitz and another, .as executors, etc., aud the defendants, Philip Faversham and' another,, from parts of a judgment of the Supreme Court in part in favor of the plaintiffs and partly in favor, of certain" of the defendants, entered in the office of the clerk of the county of Kings on the 28tli day of July, 1910, upon the decision of the court rendered after a. trial at the Kings County Special Term. . . "</p>

<p>Appeal by the defendant, William II. J. Bodine, 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 Richmond on the 2d day of August, 1910.</p>

<p>Appear by the defendant, The Rochester German Insurance Company of Rochester, New York, from an order of the Supreme Court, made at the Westell ester Special Term and entered. in the office of the clerk of the county of Westchester on the 26th day of July, 1910.</p>

Appeal by the plaintiff, Henry Arnow, 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 6th. day of May, 1909, upon the decision of the court, rendered after a' trial at the Richmond Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff from an order of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 14th day of September, 1909, granting defendant’s motion to set aside the verdict and for a new trial. Order reversed, with costs, and verdict reinstated.

<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 the county of Dutchess on the 24th day of November, 1909, and from an order, entered in said clerk's office on the same day, denying a motion for a new trial. Judgment and order affirmed, with costs.</p>

<p>Appeal from a judgment entered on the 27tli day of October, 1909, as resettled by an order entered on the 16th day of November, 1909, upon the decision of tlie court rendered after trial at Special Term.</p>

<p>Appeal from an order of the Supreme Court, made at Special Term and entered- on the 7th day of May, 1910, sustaining exceptions to the report of a referee.</p>

<p>■ Injunction-—affidavit•—venue—failure to affix certificate.</p>

<p>Appeal from an interlocutory judgment, entered on the 18th day of December, 1909, sustaining a demurrer to the complaint.</p>

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1379 of Code of Civil Procedure.</p>

Reargument of an appeal by the defendants from an order entered March 15, 1910, continuing in part an injunction, etc., and from an order denying a motion for reargumént; and by the plaintiff from so much of said order of March 15, 1910, as vacates an order dated November 29, 1909, and denies a motion to continue said order during the pendency of the action. (See 139 App. Div. 640.)

<p>Appeal from a judgment entered on the 12th day of January, 1909, upon the verdict of a jury for §50 000.</p> <p>Judgment and order affirmed, with costs.</p>

<p>Appeal from an order entered on the 7th day of June, 1910, granting a motion for alimony and counsel fee,</p>

<p>Appeal from a judgment entered on the 11th day of- May, 1910, upon the verdict of a jury, and also from an order entered on the 23d day of May, 1910, denying a motion for a new trial. Judgment and order affirmed, with costs.</p>