Volume 142 — New York Appellate Division Reports

Appeal by the plaintiff, the Long Island Contracting and Supply Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 15th day of April, 1910.

<p>. Appeal by the defendant, Millie H. Sayer, from an interlocutory judgment' of the Supreme Court in favor of the plaintiff, entered in the office of the'clerk of the county of Kings on the 26th day of April, 1910, upon the decision of the court -rendered after a trial at the Kings County Special Term overruling the said defendant’s demurrer to the amended complaint.</p>

Appeal by the plaintiffs, Louis Bossert and another, 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 5th day of October, 19.09, upon the dismissal of the complaint by direction of the court' at the close of plaintiffs’ case on a trial at the Kings County Trial Term. This action is brought to charge the defendant as guarantor with a balance due for certain building- material.

<p>Railroad — negligence — death, of locomotive engineer while walking on track—facts not justifying recovery.</p> <p>The plaintiff’s intestate, a locomotive engineer, while going to his engine, which was scheduled to leave in a short time and knowing that another engine on a parallel track would leave a few minutes before his own, walked on the track of the latter engine. • This engine was started after the customary warnings and while running at the rate of from six to eight miles an hour struck and killed the intestate as he was attempting to. leave the track.</p> <p>Held, that the plaintiff was not entitled to recover; that no negligence could be predicated on the failure of the engineer to see the intestate, and that if he had seen, him, he would have had the right to assume that he would leave the track in time to avoid the engine;</p> <p>That as the intestate was neither authorized, nor directed, nor required by necessity to use the track in going to his own engine, he was at the most a mere licensee and the defendant was under no greater duty than to refrain from-intentional wronger injury;</p> <p>That as the intestate was thoroughly familiar with the situation he was guilty of contributory negligence in walking upon the track.</p> <p>9</p>

Appeal by the defendant. The New York Herald Company, a Corporation, 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 3d day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of November, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frank Schulze, 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 12th day of May, 1910, as amended by an order entered in said clerk’s office on the 18th day of-May, 1910, upon the dismissal of the complaint by direction of the court upon the opening at the Kings County Trial Term.

<p>Railroad — negligence — collision at grade crossing.</p> <p>Where in an action hy a woman oí mature years to recover for injuries received in a collision at a grade crossing between an automobile in which she was riding, and which was driven by her husband, and one of defendant’s trolley cars, the plaintiff testifies that at the time of the accident the automobile was going down a steep hill; that she was familiar with the road and vicinity; that when the automobile was 400 or 500 feet from defendant’s tracks, which ran along an intersecting road, she could have seen the wires and the trolley pole of the approaching car had she looked, although the car itself was hidden by the walls and shrubbery on the sides of the road, but that she did not look nor pay any attention to, the driving of the automobile, and it appears that her husband had the automobile under- control and could easily have stopped it had she warned him,-she was guilty, of contributory negligence barring a recovery. .</p> <p>Appeal by the defendant, the Staten Island Midland Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 17tli day of May, 1910, upon the verdict of a jury for $2,000, and also from an order entered in said- clerk’s office on the 17th day of May, 1910, denying the defendant’s motion for a -new trial made upon the minutes.</p>

Appeal by the plaintiff, George N. Ostrander, 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 29th day of April, 1909, upon the decision of the court rendered after a trial at the Kings County Trial Term,, the jury having been discharged^ dismissing the complaint upon the merits.-

Appeal by the defendant, the George Schleicher 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 28tli day of February, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 24th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John F. Baxter, 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 24th day of March, 1910, upon the verdict of a jury for $5,579.52, rendered by direction of the court, certain questions having theretofore been submitted to the jury, and also from an order entered in said clerk’s office on the 7th day of April, 1910, denying the defendant’s motion for a new trial made…

<p>Appeal by the plaintiff, Edward G. Hogan, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 20th day of June, 1910.</p>

<p>Railroad — master and servant — negligence—-assumption of risk —</p> <p>common-law action.</p> <p>At common law a servant assumes the risks incident to the business of the master; that is, those which exist or arise, notwithstanding the exercise of ordinary care by the master to make reasonably safe the appliances and the place where the work is done.</p> <p>He also assumes such risks as are obvious and discoverable in the exercise of ordinary care from whatever source they may arise.</p> <p>If a servant either knows at the time of entering his employment or discovers thereafter that the master has departed from his lawful duty of making and enforcing rules and providing appliances reasonably necessary for the servant’s safety, he assumes the risk thereof.</p> <p>Before he is presumed to have assumed this risk, however, he must be afforded a fair opportunity in time and circumstances to make observation and act upon it.</p> <p>Where a carpenter, who was employed by a railroad for over a month to nail planks between the tracks in a terminal yard, knew that the place was dangerous and that he was not guarded by a watchman, and was so appreciative of the danger that he watched for himself, he cannot recover at common law for injuries received from being hit by a locomotive, on the theory that the master had not furnished a safe place to work, in that he had not provided a watchman to warn carpenters of approaching cars.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk, of the county of Kings on the 13th day of December, 1909, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 11th day of December,'1909, denying the defendant’s motion fora new trial made upon the minutes.

<p>Decedent’s estate — public administrator — citation to Attorney-General — notice.</p> <p>Where on a petition by the public administrator for letters of administration, it appears that there are persons entitled to succeed to the estate, but that they all reside without the State, it is not necessary, under section 2663 of the Code of Civil Procedure, to give the Attorney-General notice of the application.</p> <p>Where, after the granting of letters of administration, a motion is made for the appointment of a referee to take proof of the rights and interests of persons claiming the estate, it is not necessary, under section 2747 of the Code of Civil Procedure, to give the Attorney-General notice of the motion or of the order entered thereon.</p>

<p>Public service corporations — powers of Commission under sections 48 and 57 of the-Public Service Commissions Law —- railroad — enforcement of obligation to issue transfers.</p> <p>Section 48 of the Public Service Commissions Law, authorizing investigations by the Commission, and section. 57, authorizing summary proceedings against common carriers failing- to do those things required by law, or by order of the Commission-, etc., are supplementary to each other, and the Commission is entitled to. proceed under either, or both simultaneously,, as it may deem necessary.' ■</p> <p>Hence, although the Public Service Commission has under section 48 instituted ■ an investigation of the affairs of surface trolley roads operating in a village, it is not- required to. proceed to a final order therein before petitioning under section 57 for a peremptory Writ of mandamus directing such railroads to issue and receive transfers to and from other lines.</p> <p>An investigation begun under section 48 is not equivalent to an action pending so as to bar a proceeding under section 57.</p> <p>The “ violation of law ” upon which the Commission may act under section 57 is not restricted to such offenses as are specifically mentioned in the written law. The refusal of a street surface railroad to issue and receive transfers to and from other lines as.required by its charter ratified by the authorities of the municipalities in which it operates and as required by its contract with the municipality, is not a mere-violation of a covenant, but is a “ violation of law ” as-the term is used in section 57 of the Public Service Commissions Law, and the Commission may compel the fulfillment of such obligation.</p>

<p>Appeal by the defendant, “ John Schmalz’ Sons (Incorporated),” from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 30tli day of June, 1910, denying the defendant’s motion for judgment on the pleadings, pursuant to section 547 -of the Code of Civil Procedure.</p>

<p>Mortgage — foreclosure — conversion by referee — loss falls on mortgagee.</p> <p>Where a referee appointed to sell lauds on foreclosure converted the earnest money paid by the purchaser pending an appeal, whereon it was decided that he should be relieved from his bid on the ground that the title was unmarketable, the mortgagee should stand the loss rather than the bidder, who should he repaid out of the proceeds of a resale.</p> <p>And this is true whether or no the mortgagee was able and willing to give title on the sale. ' .</p>

Appeal by the defendant, Gaetano de Nicola, 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.

<p>Appeal by the plaintiff, Jennie Murphy, 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 5th 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 Kings County Trial Term.</p>

Appeal by the defendant, James Dillon, from a judgment of the Supreme Court, rendered on the 29th day of June, 1909, convicting the defendant of the crime of manslaughter in the first degree, and also from an order made on the 29th day of June, 1909, denying the defendant’s motion to set aside the verdict and for a new trial.

Cektiobaei issued out of the Supreme. Court and attested on the loth day of April, 1910, directed to William F. Baker, as police commissioner of the police department of the city of New York, directing him to certify and return to the office of the clerk of the county of- Kings all and singular his proceedings had in relation to ' the removal of the relator from the police department of the city óf New. York.

. Appeal by the defendants, Olga J. C. Schrumpf and another, composing the firm of Eobert Soltau & Co., and others, from a judgment of the Spreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of April, 1909, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 20th day of May, 1910, denying the défendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Morris Schwartzkopf and anotler, from an order of the Supreme Court, made at the Kings Czunty Special Term and entered in the office of the clerk of the county of Queens on the 17tli day of October, 1910, denying the defendants’ motion for a bill of particulars.

<p>Certiorari issued out of the Supreme.- Court and attested on the 21st day of February, 1910, directed to Clement Archer and others, as auditors of the town of Rye, etc., and another, directing them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in refusing to audit a certain claim presented by the relator.</p>

<p>Appeal by the plaintiff, Sarah A. Hall, from an interlocutory judgment of the Supreme Court in favor of 'the defendants, entered in the office of the clerk of the county of Onondaga on the 4th day of March, 1910, upon the decision of the court, rendered after a trial at the Onondaga Special Term, sustaining the defendants’ demurrers to the complaint.</p>

<p>Conversion by sheriff—-sale of personal property on execution — chattel mortgage — erroneous recitals — assignment of chattel mortgage and overdue note as security for debt — bill of sale from mortgagor to pledgee after default — failure to disclose ownership of property at sale on execution — estoppel — title of mortgagee after default.</p> <p>Action against a sheriff and his deputies for the alleged unauthorized sale of personal property in the possession of J. K. upon an execution against him. It appeared that one Knickerbocker, a partner of J. K., bought out his interest in the partnership, giving therefor a thirty-day note secured by a chattel mortgage on all the property. Through error in the choice of the blank form upon which the mortgage was written it recited that it was given to secure J. K.'s indorsement upon the note and all indebtedness from. Knickerbocker to J. K. and that J. K. w.as to indorse the note for the accommodatióh of Knickerbocker. It was conceded, however, that the note was for the purchase price of the partnership interest and the mortgage given to secure the same. The mortgage was duly filed and J. K., being indebted to a bank, indorsed the note to it after maturity and assigned to it the chattel mortgage under an agreement that whatever was received upon the mortgage should be paid to him by applying it upon his indebtedness, so that in fact the note and mortgage were transferred as collateral security for the debt to J. K. Thereafter Knickerbocker delivered to' the plaintiff, who was an employee of the bank and acting for it, a bill of sale of the property covered by the chattel mortgage, this being done with the knowledge of J. K. The bank did not surrender Knickerbocker’s note, nor did he receive any consideration for the bill of sale. Thereafter another agent of the bank allowed J. K. to' take possession of the mortgaged property, with which he actively carried on the business for his own benefit. The bank failed to refile the chattel mortgage, and one M., after recovering judgment against J. K., made inquiry of the plaintiff, the agent of the. bank, as to the title to the property, and whs told by the plaintiff that he did not know about it. At the time of the sale of the property on execution J. K. claimed that he Was not the owner, and forbade the sale, but refused to state upon inquiry who the owner was. The plaintiff, agent of the bank, was informed of the levy, and did not disclose his ownership in an interview with the judgment creditor at the time of the sale.</p> <p>Held, that the mere fact that the parties used the wrong blank in making the mortgage, so that certain recitals therein were untrue, did not change the nature of the'transaction;</p> <p>That the bank through its agent merely held the note' and mortgage as collateral security for the debt o.f J. K., and that when Knickerbocker delivered</p> <p>the bill of sale to the agent of the bank it merely became additional security so that J. K. became entitled to any money realized on the property in excess of his indebtedness;</p> <p>That when the plaintiff, as agent of the bank, took. the bill of sale from Knickerbocker it extinguished his equity of redemption;</p> <p>That as the plaintiff, agent of the bank, did not disclose-his ownership at the time of the sale on execution, but disclaimed title,, he was estopped from claiming ownership;</p> <p>That as the chattel mortgage and the note were given only to secure the price which Knickerbocker had agreed to pay for the property, he had no title which he could transfer to the agent of the bank by a bill of sale, for, on his default in paying the note,_ the title to the property by operation of law vested in J. K. under the chattel mortgage, and his transfer to the bank was subsequent to that event.</p> <p>On default in payment of a chattel mortgage the title of the mortgagee becomes absolute by operation of law, leaving to the mortgagor only an equity of redemption and a right to maintain a suit to'redeem.</p> <p>Smith, P. J., dissented.</p>

Appeal by the defendant, Charles F. W. Honq from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 4th day of November, 1909., upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of October, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the claimant, the Champlain Stone and Sand Company, from a judgment, of the Court of Claims, entered in the office of the clerk of said court on the lltli day of July, 1910, awarding the claimant the sum of $1,170.83. Prior to March, 1906, one Charles S. Fenton was the owner of a quarry situated near Fort Ann, Washington county, and of flat lands adjoining said quarry, and- extending therefrom to the lands of the Delaware and Hudson Bailroad Company.

Certiorari issued out of the Supreme Court and attested on the 27th day of December, 1909, directed to Andrew S. Draper, as Commissioner of Education for the State of New York, commanding him to certify and return to the office of the clerk of .the county of Albany all and singular his proceedings had in relation to the removal of the relator from the office of school commissioner of the third commissioner district of the county of' Albany.'

Appeal by the plaintiffs, Eliza E. Griswold and another, as administrators, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 20th, day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17tli day of November, 1909, denying the plaintiffs’ motion for a new trial made upon the minutes. .

Appeal by the defendant, Thomas Henry Dumary, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 4th day of April, 1910, upon the decision of the court, rendered after a trial at the Greene Trial Term before the court without a jury, and also from an order entered in said clerk’s office on the 2d day of April, 1910, granting the plaintiff an extra allowance.

■ Appeal by the defendants, John E. Gaffney, as sewer, water and street commissioner, etc., and another, from an order of the Supreme Court, made at the Saratoga Special Temí and entered in the office of the clerk of the county of Saratoga on the 13th day' of October, 1910, granting a peremptory writ of mandamus.

<p>Evidence—malicious prosecution—cruelty to animals — prior offenses of plaintiff— grounds for prosecution other than those furnished by defendant — trial — improper efforts of counsel to discredit defendant.</p> <p>In an action for malicious prosecution arising from the fact that the defendant with others joined in a complaint charging the plaintiff with cruelty to animals at various times, and laid the matter before a society for the prevention of cruelty to animals, which, through its attorneys, upon depositions signed by the defendant and others, prosecuted the plaintiff and caused his arrest, it is error to exclude evidence offered by the defendant to prove an act of cruelty to an animal by the plaintiff communicated to him prior to the act for which the plaintiff was prosecuted.</p> <p>So, too, upon the issue as to whether the defendant instituted the proceedings, it was error to exclude questions on the cross-examination of the superintendent of the society for the prevention of cruelty to animals, asking whether at the time the information was given the attorneys for the society had other evidence and witnesses besides those furnished by the defendant and those acting with him.</p> <p>Moreover, a verdict for the plaintiff in such action will be reversed there being a close question of fact for the jury where his attorney asked the defendant how many accidents he had with his automobile, whether he was blameless or otherwise with reference to them, and whether the husband of one of his witnesses, whom he threatened to kill, was not suing him for criminal conversation.</p>

<p>Bailment — damages — apples in cold storage — proper temperature — proof of negligence.</p> <p>Where in an action against a cold storage company to recover for injury to apples stored with it, alleged to have been caused by negligence in allowing an improper temperature in the warehouse, it appears that the apples when first stored in October were fancy fruit in proper condition; that.they were examined in February and found to be sound, but that when again examined early in April they were scalded, discolored, damp and in a damaged condition, and it further appears that an even temperature of thirty-one to thirty-two degrees was necessary to preserve the fruit; that the temperature was not so maintained but was allowed to rise as high as thirty-eight degrees, and that the conditions existing in the fruit could only have been caused by a failure to maintain the proper temperature for at least thirty-six hours, the burden is on defendant to show some reason for the rapid deterioration and that it did not happen in consequence of its failure to use due care.</p> <p>This is so, although plaintiff did not show that the defendant in fact permitted the temperature to become excessive for at least thirty-six hours, as the only possible inference is that the excessive temperature did continue for that length of time.,</p> <p>Cochrane and Smith, JJ., dissented, with opinion.</p>

Appeal by the defendant, John Franey, as clerk, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 27th day of April, 1910, upon the decision of the court rendered after a trial at the Albany Trial Term, before the court without a jury, dismissing the “Third” separate defense set forth in the defendant’s answer.. '

Appeal by the plaintiff, Horace Cottrell, as trustee* etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 20tli day of August, 1910, upon the decision of the court, rendered after a trial at the Saratoga Trial Term, before the court without a jury, dismissing the complaint as resettled by an order entered on the 31st day of August, 1910 ; also from an order entered on the 17th day of June,…

Appeal by the plaintiff, William H. Plumb, from a judgment of the Supreme Court in favor of the defendants, entered in the office of. the clerk of the county of Franklin on the 27th day of April, 1910,- upon the verdict of a jury, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new'trial made upon the minutes.

<p>Process — malicious prosecution — Education Law—failure of parent to cause child to attend school — vaccination — probable cause.</p> <p>The information laid before a police justice is the foundation of his jurisdiction and performs the same office as an indictment in a superior court. The office of a warrant is merely to bring the person charged with crime before the magistrate.</p> <p>Where the mother of a girl ten years old, who was excluded from school because she was not vaccinated, refused to allow her to fce vaccinated and continued to</p> <p>send her to the schoolhouse for several days, although she was not admitted, there is probable cause to believe the mother guilty of a violation of section 531 of the Education Law1, and she cannot recover in an action for malicious prosecution against an attendance officer who laid an information alleging that she had not caused the child to attend upon instruction as required by law; that the child had been absent from instruction nine days without legal excuse and that the mother had not presented proof that she was unable to compel the child to attend.</p> <p>This is so,although .the warrant charged the. mother with having “failed for nine days * * * to send the said child to school.”</p>

Appeal by the plaintiff, Vincenzo Di Sario, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Delaware on the 4th day of December, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Delaware Trial Term, and also from an order entered in said clerk’s office on the'4th day of January, 1910, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the plaintiff, William C. Sutherland, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of Albany county on the 13tli day of August, 1908, denying the plaintiff’s motion for an injunction during the pendency of the action.

<p>¡Motor vehicle — negligence — injury to pedestrian by automobile — úse of car by chauffeur — when not acting in master’s business — erroneous charge.</p> <p>Where in an action to recover for injuries to a, pedestrian caused by an automobile, it appears that at the time it was being used by the defendant’s chauffeur for the purpose of carrying his own laundry to another town, although he liad been directed by the defendant hot to use the machine without express orders, except that he might use it when going to and from his meals, the chauffeur was not acting in his employer’s business or within the scope of his employment. Hence, it is error to charge in substance that, if the defendant consented that his chauffeur might use the car, he is. liable for his negligence.</p> <p>Houghton. J., dissented, with opinion.</p>

<p>Gas — negligence — injury by explosion' of illuminating gas — notice to gas company essential — evidence not justifying recovery.</p> <p>In order to render a gas company liable for injuries caused by an explosion resulting from a negligent leakage of gas on private premises it must have had notice of and an opportunity to remedy the defect.</p> <p>Action to recover damages for personal injuries resulting from an explosion of illuminating gas. Although the defendant had no notice that gas leaked on the plaintiff’s premises, it was claimed that it came from an old main in a pub- - lie street which had deteriorated and had leaked for many months so that the gas followed the supply pipe leading into the plaintiff’s premises. Evidence examined, and held, insufficient tó show-that the main was in such a dilapidated condition as to call upon the defendant to inspect or replace the same, and • insufficient to show that the gas which exploded came from the public main.</p>

<p>Custom and usage — contract — usage of particular locality — knowledge of contracting party—when existence of custom and knowledge for jury.</p> <p>Parties are presumed to contract with reference to a uniform, continuous and well-settled usage "or custom pertaining to the matters as to which .they enter into agreement, where such usage is not in opposition to well-settled principles of law, is not unreasonable, or in contradiction to the - express terms of the contract, whether written or oral, and the contract must be specific to exclude ' such presumption. ' .</p> <p>But where the custom applies only to the business in a particular locality," the party claiming that the custom should be read into the contract is under the burden of showing that the other party knew of its existence.</p> <p>The questions as to whether such custom exists and whether a contracting party had knowledge of it are for the jury. .</p>

' Appeal by the defendant, The City of Elmira, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of tiie clerk of the county of Chemung 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 same day denying the defendant’s motion for a new trial made upon the minutes.

■Appeal by the defendant, The Ulster and Delaware Railroad Company, from a judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 3d day of June, 1910, upon the decision of the court, rendered after a trial at the Delaware Trial Term, a jury having been waived.

Appeal by the defendant, John W. Jones, from a judgment of the County Court of Cortland county, rendered on.the 29th day of September, 1910, affirming a judgment of a Court of Special Sessions of the town of Oortlandville in said county, convicting the defendant of the prime, of petit larceny.

Appeal by the plaintiff, Mary E. Mortimer, from a judgment of the County Court of Rensselaer county, entered in the office of the cleric of said county on the 20th day of .April, 1910, upon the . dismissal of the complaint by direction of -the court at the close, of plaintiff’s case.

<p>Appeal by the defendant, Norman J. Smith) as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Broome on the 28th day of March, 1910, upon the report of a referee.</p>

<p>Sale — goods over fifty dollars in value — Statute of Frauds — delivery ■ and acceptance ■—■ evidence t- transaction subsequent to commencement of action^ — evidence not justifying recovery.</p> <p>In order to také a salé of goods over fifty dollars in value out of the Statute of Frauds there múst be not only .a delivery of the goods by the vendor, but an actual acceptance by the vendee, with an intention of taking possession as owner, which intention must be indicated by some unequivocal act.</p> <p>In an action on an oral .contract for the sale of goods over fifty dollars in value where the defendant sets up the Statute of Frauds the "plaintiff cannot give evidence of acts of the defendant subsequent to the commencement. of the action for the purpose of .establishing acceptance so as to avoid the statute.</p> <p>Evidence in such action examined, and held, insufficient to establish acceptance ¡"■i J)y tile vendee.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on-the 23d day of-February, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3'lst day of August, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Decedent’s estate — accounting of administratrix — bond and mortgage not yet due — husband and wife — survivorship — when ho conversion by administratrix — claim of title to assets — evidence — monument — costs.</p> <p>An administratrix should not he charged on her accounting with the proceeds of a bond and mortgage not yet payable by their terms.</p> <p>Where a husband and wife took an assignment of a mortgage in place of an original mortgage to them, the husband paying the entire consideration, the wife, on the death of the husband, succeeds to the entire interest.</p> <p>An administratrix ■ should not he personally charged with the conversion of promissory notes, although they in fact belonged to the estate, merely because, she claimed to own them. Her possession of the notes as against her coadministrator is not an act of conversion as her right of possession equals his.</p> <p>Section 2781 of the Code of Civil Procedure, authorizing the determination of the claim of an accounting party to property alleged to belong to an estate does not empower the surrogate to charge the unsuccessful claimant as a tort feasor in conversion where there was an honest dispute as to the conflicting .claims.</p> <p>An accounting administratrix should not he charged personally with the amount of promissory notes belonging to the estate where actions thereon are still pending and it does not appear that the estate has suffered by any act of omission or commission on her part.</p> <p>On the accounting of an administratrix it is error to exclude evidence that tbe tombstone purchased for her husband, the intestate, was one which he himself had selected in order to show the propriety and reasonableness of the expenditure, there being no creditors of the estate.</p> <p>Where an administratrix on her accounting succeeds as to the most important' matters in issue she should not he charged personally with costs.</p> <p>Houghton, J., dissented iti part.</p>

<p>Town — negligence — injury on highway — sufficiency of notice — complaint..</p> <p>Notice of a claim against a town for personal injuries caused by the alleged negligence of the highway commissioner examined, and held, sufficient in that it gave the date of accident, its location, the injuries received and a sufficient description of the cause.</p> <p>A town is only liable for injuries caused by defective highways in cases in which •the highway commissioner was formerly liable for his own negligence.</p> <p>A-complaint against a town which sets out a defective condition of the highways coupled with an allegation of- the negligence of the town in permitting such condition to exist should be construed as equivalent' to an allegation of negligence by the highway commissioner. .</p>

<p>Appeal from City Court—power of County Court to dismiss appeal not perfected — City Court of Albany — appeal from final order in summary proceedings — payment of costs.</p> <p>Although an appeal to the County Court from the City Court of Albany is not c perfected it may be dismissed by the County Court on that ground, for although notin the County Court for argument it is in form in that court until dismissed.</p> <p>In order to perfect an appeal to the County Court from a final order of dispossession in summary proceedings rendered in the City Court of Albany the appellant must pay the costs in the court below.</p>

<p>Appeal by the defendant, Lynn B. Millikan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the- county of Albany on the 28th day of March, 1909, upon, the verdict of. a jury for $5,000, and. also, from an order entered in said clerk’s officé on the 30tli day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.,</p>

Appeals by Laura L. Van Alstyne, individually and as executrix, etc., and by William T. Van Alstyne from a decree of the Surrogate’s Court of the county of Albany, entered in said Surrogate’s Court on the 18th day of May, 1910, 'settling the accounts of the executors herein.

<p>Appeal by the defendant, Jay S. Wilson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 28th day of May, 1910, upon the report of a referee.</p>

<p>Appeal by the plaintiff, Louie B. Losie, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Chemung on the 8th day of July, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Chemung Trial Term, and also from an order entered in said cleric’s office denying the plaintiff’s motion for a new trial made upon the minutes. Q</p>

<p>Appeal by John A. Bensel and others, constituting the board of water supply of the city of ¡New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 7th day of ¡¡November, 1910, taxing bills for services and disbursements of the commissioners of appraisal.</p>

Cross-appeals by the relator, the Hudson and Manhattan Railroad Company, and the City of New York, intervenor, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the- clerk of the county of Albany on the 17th day of September, 1910, as amended and resettled by an order 'entered on the 22d day .of October, 1910, reducing the special, franchise tax of the relator for the year 1908-from $6,900,000,.as fixed by the State Board of Tax…

<p>Appeal by the relator, Walter Henness, from an order denying a motion for a peremptory writ of mandamus.</p>

Appeal by the plaintiff, Michael J. Dempsey, as administrator, etc., from a judgment of the Supreme Court in favor of certain defendants, entered in the office of the cleric of the county of St. Lawrence on the 24th day of February, 1910, upon the decision of the court, rendered after a trial at the Lewis Special Term, authorizing the plaintiff to redeem a .chattel mortgage pledged by his intestate upon payment of a certain sum of money with interest from the date of the…

Appeal by the plaintiff, Frederick A. Gage, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oswego on the 22d day of July, 1910, vacating and setting aside a temporary injunction, which restrained the defendants from selling or offering for sale a franchise for the distribution of electricity within the city of Fulton, New York.

Appeal by the plaintiff, Margaret Y. Sloat, from a judgment of the Supreme Court in favor of the defendant, entered in the office \ ■ ' . The action was commenced on the 13th day of November, 1909, to recover the sum of $5,000 damages alleged to have been sustained by plaintiff by reason of the fraud of defendant’s agent which induced her to settle and compromise a claim for personal injuries alleged to have been caused solely by defendant’s negligence.

<p>Eminent domain — costs where several owners having no unity of interest are joined as defendants.</p> <p>Where a "plaintiff in condemnation proceedings joins several persons having no unity of interest as defendants and the compensation awarded- them exceeds the amount of the plaintiff’s offer, each defendant is entitled to costs under section 3872 of the Code of Civil Procedure.</p> <p>This is true although several of the defendants appear by one attorney.</p> <p>,It seems, that where defendants appearing by the same attorney join issue by an answer contesting the right of the plaintiff to maintain the proceeding, so that there is a unity of interest in the defense, but one bill of costs should be' allowed. -</p> <p>Williams, J., dissented. ■</p>

Appeal by the defendant, the Rochester, Syracuse and Eastern Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 27th day of April, 1910, upon the verdict of a jury for $1,000, 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.

Appeal by the plaintiff, the Manufacturers’ .Commercial Company, from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 28th day of July, 1910, upon the decision of the court rendered after a trial at the Monroe Special Term, as adjudges that the plaintiff is entitled to recover the sum of $945.10 only, and awards the defendant Place $12,327.77 less certain specified costs.

Appeal by the defendant, William T. Jebb, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie ón the 26th day of Rovembér, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of December, 1909, denying tjie defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The B. I. Crooker Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 3d day of March, 1910, upoh the verdict of a jury for $7,500 ; also from an order entered in said clerk’s office on the 4th day of March, 1910, as resettled by an order entered on the 25th day of March, 1910, denying the said defendant’s motion for a new trial and to set aside .the direction of a court dismissing the complaint as to the defendant The Wickwire Steel Company; also from .an order entered on the 14th day of March, 1910, denying the said defendant’s motion for a new' trial made upon the minutes, and also (as stated in the notice of appeal) from a judgment entered on the 26th day of March, 1910, dismissing the complaint as to the defendant The Wickwire- Steel Company, and from an order entered on the 25th day of March, 1910, denying the plaintiff’s motion for a new trial as to the defendant The Wickwire Steel Company.</p>

Appeal by the plaintiff, Matilda M. Ballard, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office, of the clerk of the county of Tates on the 25th day of March, 1910, denying the plaintiff’s motion for a new trial.

<p>Railroad — negligence — head-on collision — failure to obey special order — contributory negligence of fireman..</p> <p>There can be no recovery for the death of a locomotive fireman who was killed in a head-on collision on a single-track railroad if, knowing that á special order received from the train dispatcher required his train to await the passage of the other train at a certain station, he failed to call the attention of the engineer and the conductor to the fact that in proceeding they were disobeying the order. ■If he forgot the requirements of the order, or, knowing them, failed to perform his duty to call the matter to the attention of the engineer and conductor he was guilty of contributory negligence.</p> <p>' Kruse, J., dissented.</p>

Appeal by the defendant, the National .Starch Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 12th day of April, 1910, upon the verdict of á jury for $1,500, and' also from an order entered in said clerk’s office on the same day denying the' defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Syracuse Rapid Transit Railway Company, from a judgment of the County Court of- Onondaga comity in favor of the plaintiff, entered in the office of the clerk of said comity on the 7th day of February, 1910, upon the verdict of a jury for thirty-five dollars, and also from an order entered in said clerk’s office on the lOtli day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Fraud — conveyance in fraud of creditors — Statute of Frauds — husband and wife— oral ante-nuptial agreement — evidence showing fraudulent intent of grantor and grantee:,</p> <p>Pending an action brought by remaindermen against a life tenant to recover damages for waste in selling timber cut from the land, the life-tenant married and, without valuable consideration, conveyed to his wife other lands owned' by him, pursuant to an alleged oral ante-nuptial agreement. The remainder-men were able to satisfy only a small part of a j udgment subsequently obtained in the action for waste and brought suit to set aside the conveyances made to the wife upon the ground that they were in fraud of creditors. Evidence examined* and held, that the grantor by his conveyances left himself practically insolvent and that the wife, knowing of his insolvency, participated in his intent to hinder, delay and defraud the remaindermen so that the conveyances should be set aside.</p> <p>An oral ante-nuptial agreement is void under the Statute of Frauds, and although the promisee performs her part of the agreement by marrying the promisor, she cannot specifically enforce the agreement.</p> <p>It seems, however, that conveyances made by a husband after marriage pursuant to a void parol ante nuptial contract are good as against him and his creditors in the absence of fraud.</p> <p>Under the circumstances aforesaid proof of insolvency of the grantor upon making the conveyances is necessary to establish fraud, though, it seems, if he retains sufficient property to pay his debts the conveyances would be good as against creditors.</p>

Appeal by the defendant, The Bushville Mining and Gas Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Tates on the 14th 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 same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the City of Olean, as successor in interest of the village of North Olean, from an order of the Supreme Court, made at Special Term and entered in the office of the cleric of the county of Cattaraugus on the 16th day of December, 1909.

Appeal by the plaintiff, R. James Cunningham, as administrator;' etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 23d day of October, 1909, upon the dismissal of the complaint, by direction of the court at the close of the plaintiff’s case, on a trial at the Oswego Trial Term, and also from an order entered in said clerk’s office on the 9th day of November, 1909, denying the plaintiff’s…

Appeal by the petitioners, Thomas J. O’Donnell, individually and as grand president, etc., and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 25th day of February, 1910, confirming and establishing the election of officers of the Catholic Belief- and Beneficiary* Association at the triennial session of the supreme council thereof, held at Scranton, Penn., Sep-, tenaber 29 and 30,…

Appeal by the deféndant, Philip Becker & Co., from a judgment of the Supreme Court in favor of the plaintiff against said defendant, entered in the office of the clerk of the county of Niagara on the 4th day of April, 1910, upon the.decision of the court, rendered, after a trial at the Niagara Trial Term, both parties having moved for the direction of a verdict after a trial at the Niagara Trial Term, the complaint having been dismissed as to the defendant Thomas…

Appeal-by the defendant, John D. Shuart, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Allegany on the 24th day of October, 1908, 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 10th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Town of Bath, from' a judgment of the Supreme Court in favor of. the plaintiff, entered in the office of the clerk of the county of Steuben on the l-6th day of June, 1909, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Eminent domain — condemnation of stone for improving highways — petition — amendment — description of quarry and easements.</p> <p>The Legislature in enacting section 51 of the Highway Law used the words “ town superintendents of highways” and the words “town superintendents” ' interchangeably to designate the same official.</p> <p>A proceeding to condemn a right .to take and use gravel or stone from a gravel pit or quarry for the purpose of improving highways asauthorized by section 51 of the Highway Law should not be dismissed merely because the petition, following the words of the statute,.in some places speaks of the petitioner as town superintendent, without adding the words “ of highways," -for if the latter words were essential they could be readily supplied by amendment under sections 723 and 724 of the Code of Civil Procedure, which are applicable to proceedings under the General Condemnation Law.</p> <p>Gravel and stone are part of real estate until removed, and, hence, a condemnation . of the right to remove them is a condemnation of real property.</p> <p>Tlie petition to condemn such gravel and stone for the improvement of a highway should not describe the entire plot of land from which the material is to be taken, but on the contrary should locate the quarry itself by metes and bounds, as well as the right of way over which the material is to be removed, and also those lands contiguous to a quarry in which an easement' will be necessary in order to carry on operations.</p> <p>But a petition should not be dismissed for the failure properly to- locate the quarry and the easements required. The court should permit an amendment in this respect- where there has been an attempt in good faith to comply with the statute.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment;.of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 26th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendant Hearst, entered in the office of the clerk of the county of New York on the 10th day of May, 1910, upon the dismissal of the. complaint by direction of the court as to said defendant after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 17th day of June, 1910, denying the plaintiff’s motion for a new trial made upon…

<p>Attorney at law disbarred.</p> <p>Attorney at law disbarred for willfully giving false testimony in behalf of a client on the trial of an action in which he had agreed to pay his client’s expenses in consideration of a contingent fee.</p> <p>It is immaterial whether or no the attorney was correct in his view of the legal effect of his testimony.</p> <p>Proceeding- to disbar an attorney.</p>

<p>Appeal by the plaintiff, Theodore Dwight, from a judgment of the Supreme Cotirt in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of June, 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.</p>

<p>Deed — covenant of quiet enjoyment—when no breach — covenant of. seizin and breach thereof — measure of damages —expenses of procuring evidence of grantee’s title — decedent’s estate — proof of title through devisee — covenant of further assurance — expense of further conveyances.</p> <p>There is no breach of covenant, of quiet enjoyment or of warranty where the grantee retains possession and there has been no attempt to evict him.</p> <p>A' covenant of seizin is a covenant in prcesenti, and is broken if good title in fee simple absolute and right of possession are not in the grantor at the time of tlie delivery of the conveyance.</p> <p>Where the grantee under a warranty deed acquires- an outstanding title instead of electing to recover the purchase money, with interest, the amount necessarily paid by him in acquiring the other title is usually 'the measure of his recovery for the breach of the warranty.</p> <p>But where the grantee, instead of being obliged to purchase an outstanding title, merely accepted voluntary quitclaim deeds from, persons having a possible interest in the land so as to have a perfect title before suing her grantor for breach of warranty and shows no prior damages hy loss of a sale of the premises or otherwise, she can .recover only nominal damages for the breach of covenant of seizin. She cannot, having accepted such quitclaim deeds, recover of her grantor the expenses incurred not in obtaining a further title but mere evidence showing- that she obtained a good title.</p> <p>Under a covenant of seizin an outstanding title may be purchased at the expense of the covenantor, but not mere evidence of existing title in the covenantee.</p> <p>It seems, that in the absence of evidence-by the production- of a will or otherwise there is no presumption that a will was duly executed or that devises therein are valid. Hence, it is incumbent upon one claiming title through a devisee as against the heir to establish not only the due execution of the will, which is presumptively shown hy its probate, if probated here, but also the validity of the devise. Probate, however, is not essential to vest title in the devisee.</p> <p>A covenant of further assurance does not obligate a grantor to obtain evidence of the grantee’s record title, being merely an agreement to make any further conveyances necessary to vest in the covenantee the title intended to be conveyed. It relates to an interest which could have been, but was not, conveyed hy the deed containing the covenant and it is broken only by refusal or omission to convey after a proper definite demand.</p> <p>Under the Beal Property Law (§ 253; snbd. 4) the expenses of complying with the covenant for further assurance must be borne by the covenantee.</p>

Appeal by the defendants, Wallace Straiten and another,.as committee, etc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of April, 1910, upon the decision of the court,- rendered after a trial at the New York Special Term, adjudging fraudulent and void as to the plaintiff.and the creditors of the defendant Martin V. Cook, the bankrupt, a certain agreement made between…

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 29tli day of July, 1909, reversing a prior order fixing and assessing a transfer tax upon the estate of George W. Cummings, deceased, and remitting the report of the appraiser theretofore filed to an appraiser with directions to make and file his report, excluding from the taxable assets of the estate $101,842.45, the…

Appeal by the defendant, the Manufacturers and Traders National Bank of Buffalo, 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 September, 1910, upon the decision of the court rendered after a trial at the New York Special Term,

Appeal by the defendant, Frederick K. Morris, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of January, 1910, upon the decision of the court rendered after a trial at the' New York Special Term. ■ ■

<p>Motor vehicles — negligence — injury by automobile ownéd by corporation — use of machine by officers for pleasure trip.</p> <p>A plaintiff who was injured while driving on a highway by a collision with an automobile, owned by a corporation and used in its business, cannot recover from the corporation where it appears that the car at the time of the accident, though driven and occupied by officers of the corporation and their friends, was being used solely for a pleasure trip having nothing whatever to ' do with the business of the corporation.</p>

Appeal by the defendant, Belle Moore, 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 19th day of May, 1910, convicting her of a violation of section 2460 of the Penal Law.

Appeal by the defendant, Lawrence Dilworth, from an interlocutory judgment of the (Supreme Courtyin favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 13th day of Hay, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint.

Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the-clerk of the county of New York on the 20th day of July, 1910, sustaining a writ of habeas corpus and discharging the relator from custody.

Appeals by the defendant, Sime J. Silverman, from two orders of the Supreme Court, made at the Eew York Special Term and entered in the office of the clerk of the county of Eew York on the 25th day of August, 1910, denying the defendant’s motions to vacate attachments.

<p>Appeal by Edward Herrmann, as executor, etc., of J. George Laffargue, deceased, from an order of the Surrogate’s Court of the county of New York, bearing date tlie 19th day of July, 1910, and entered in said Surrogate’s Court, affirming the first finding of fact made by a referee appointed herein, and directing appellant as such .executor to render and file his accounts in.the office of the clerk of the court within twenty days after the date of the order and to attend before the surrogate from time to time for. the purpose of settling his accounts, with notice of an- intention to bring up for review an order theretofore entered bearing date the 6tlf day of August, 1909, appointing the referee, and an order bearing date the 18th day of April, 1910, denying the appellant’s motion to reopen the hearing before the referee for the purpose of having further testimony taken.</p>

<p>Appeal by the plaintiff, Francis P. Bawle, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November,. 1916, denying the plaintiff’s motion for judgment on the pleadings.</p>

<p>'¡Practice — pleading— failure to reply to counterclaim—motion for judgment on failure to reply,</p> <p>On a motion for judgment on counterclaims to which no reply or demurrer has been served, the complaint will bo deemed to state a good cause of action,</p> <p>Where the defendant in an action upon a contract counterclaims, upon an independent contract for a sum less than that demanded in the complaint, the court will not grant a motion for judgment on the counterclaim although the plaintiff has failed to reply thereto. The amount due as between the parties will be left to be determined upon trial.</p>

Appeal by Michael E. Bannin and .another, individually and as trustees, etc., and others, from parts of a decree of tlie Surrogate’s Court of. the county of New York, entered in said Surrogate’s Court on the 20th day of April, 1910, upon the- judicial accounting of the testamentary trustees.

Appeal by the defendant, Catherine A. Kramer, as executrix, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28tli day of- November, 1910, denying the defendant’s motion to vacate an attachment theretofore issued herein.

<p>Will construed — power of sale, when not discretionary — power .of substituted trustee.</p> <p>Where a testatrix gave all her property to her executor eo nominee in trust to pay debts and legacies, with direction to hold the residue and pay the income to her husband for -life with remainders over, and there were no debts and the personal property greatly exceeded the legacies, a power given to the executor eo nominee to “ sell * * * and do all acts to carry out and execute' the provisions and trusts ” is not discretionary and passes to a substituted trustee who can convey a good title.</p> <p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the'plaintiff, entered in the office of the clérk of the county of New York .on the 8th 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 amended complaint.

Appeal by the petitioners, Clotilde R. Keller and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of December, 1910, referringtheproceedings to a referee to take evidence and report the same to the court with his opinion.

Appeals by the respective defendants, Henry Bidder and the Catholic H ews Publishing Company, the appeal in each case being from an order of the.Supreme Court,, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of December, 1910, denying in each case the defendant’s motion to strike certain allegations from the amended complaint as irrelevant and redundant.

Appeal by the defendant, Henry G. Moore, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1910, granting the plaintiff’s motion to punish the defendant for contempt of court.

Appeal by the defendant, the United Surety Company of Baltimore, Md., 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 Hew. York on the 4th day of October, 1910,denying the defendant’s niotion to compel the plaintiffs’1 reply to new matter set up in the answer.

<p>Contract — performance when no time set — rescission of contract — notice to perform prerequisite — reasonable time.</p> <p>Where time of performance is not specified in a contract the law presumes that the parties intended performance within a reasonable time.</p> <p>And where no definite time of performance is specified in a contract, one party cannot rescind because of delay in performance by the other party without giving him a reasonable time after notice to perform.</p> <p>Thus, where the defendant was to erect a building and on its completion lease it to the plaintiff, but no time was set for performance, the plaintiff cannot rescind upon the ground of the defendant’s failure in timely performance and recover part payments made by him, without giving notice requiring performance within a reasonable time set.</p> <p>Motion by the plaintiffs, Ralph P. Taylor and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint at the close of plaintiffs’ case on a trial at the New York Trial Term on the 17th day of November, 1909.</p>

<p>Beal property — agreement restricting use of lands — when wife of owner not necessary party — principal and agent — execution of restrictive agreement by attorney in fact — ratification by principal — acknowledgment of instrument executed by attorney — presumption in case of ancient deed — evidence — ancient deed executed under lost power of attorney — when restriction agreement runs with land—• estoppel of subsequent grantees — acts and conveyances locating boundary line — after-acquired title.—when not covered by restriction agreement — equity violation of restriction agreement — injunction denied — costs—remedy at law.</p> <p>The wife of onfe of several tenants in common is not a necessary party to a contract executed by her husband with the other owners restricting the nature of the" buildings to be erected upon the' property and the use to. be made thereof, for during the husband’s life her interest is inchoate.</p> <p>A statement in such restriction agreement that “the several parties hereto are owners in fee simple’’ means no more than that the fee was vested in the parties to the agreement,, and does no.t purport to define the precise interest of the several owners.</p> <p>A part owner of lands may ratify a restriction agreement executed by his attorney in fact, and convey the property subject to the restriction.</p> <p>An owner of lands by covenanting that he and his wife are seized of lands conveyed subject to. a building restriction ratifies the restriction agreement and cures any defect in the execution thereof by his agent. And the grantee and . his successors are bound by the restriction where he accepted the title subject thereto.</p> <p>A commissioner of deeds when- taking the acknowledgment to an agreement restricting the use of lands made by the agent of the owner is not required to certify that he knew that the agent, was attorney for the owner, or that the •power of attorney was exhibited and known to him. He need only certify that the person executing the agreement was known to him to be the person described in and who executed the instrument.</p> <p>■ The execution of a valid power of attorney will be presumed in' favor of an ancient deed purporting to be executed by attorney..</p> <p>An agreement restricting the use of lands is a conveyance of an interest in land, ■ and when more than thirty years old is to be treated as an ancient deed. Hence, a certified copy thereof is admissible in evidence although the power of attorney to execute it be not produced. ■</p> <p>Moreover, that such power of attorney actually existed may be inferred from the fact that the owner when subsequently conveying the lands acknowledged that they were subject to the agreement purporting to be executed by his attorney. And even if not evidence of the existence of the power of attorney, such conveyance acknowledging the restriction agreement is an adoption and ratification of its execution by the agent on behalf of the owner and, relating back to the time of the agreement, is as effectual as if original authority had been .given.</p> <p>Where a series of conveyances were all made subject to an agreement restricting the use of the lands, the successive owners hold the lands charged with the restriction and are estopped from denying its validity.</p> <p>Where deeds referred to a map of the common, lands of a city filed in the county clerk’s office, and also to a particular survey annexed, it will be presumed that the particular survey is a copy of that part of the maps of common lands of the city relating to the property conveyed.</p> <p>Title to lands examined, and held, that by the acts of parties during sixty years, and by their conveyances, there was a practical location and settlement of the boundary line conclusive upon subsequent owners.</p> <p>Where a person purports to convey lands to which he has no title, his deed operates by way of estoppel if he subsequently acquire title to the land purported to be conveyed.</p> <p>' But an agreement restricting the character of buildings to be erected upon certain described lands and the use thereof, does not apply to another parcel not included in the agreement acquired by a party to the agreement subsequent to its execution.</p> <p>Where a defendant proposes to erect a building which will violate a restrictive covenant which covers only one-quarter of the plot, the other portions being free from the restriction, and it appears that the plaintiff, an adjoining owner, - will not suffer any greater damage or annoyance if the building be erected on the entire plot rather than upon the unrestricted portion only, while the defendant will suffer serious loss if the building be confined to the unrestricted portion, equity will not restrain the erection of the building on the unrestricted portion, but will leave the parties to their legal remedy.</p> <p>When it is clear that an injunction will be of no benefit to the plaintiff and will be a hardship to the defendant, it will be denied.</p> <p>But where the defendant is violating a restrictive agreement, the dismissal of a suit for an injunction should be without costs, and without prejudice to an action at law for the breach of the agreement.</p>

<p>Tillages — incorporation.—notice of election—failure to post notices.</p> <p>As the statute governing the incorporation of villages requires that an election to pass upon the question of incorporation shall be held between the hours of one o’clock in the afternoon and eight o’clock in the evening, a notice of such election is insufficient and the election based thereon invalid, where it states that the election will be held between the hours of one o’clock in the afternoon and sunset, if, in fact, the sun set on the day appointed half an hour before eight o’clock.</p> <p>It seems, that if such notice had merely stated that the election was to be held on the specified day, the electors would have been charged with notice of the . provisions of the statutes as to the designated horn's.</p> <p>Moreover, the town clerk failed properly to comply with the statute requiring the posting of notices of the election if he merely left them upon the counters of various tradesmen, hung one upon a meat hook in a butcher shop, and there is no evidence that any other notices distributed by him were actually posted.</p> <p>As the statute requires the notices of such election to be posted at least fifteen days prior thereto, a posting of notices on the second of the month for an election to be held on the sixteenth is insufficient, for under section 20 of the General Construction Law there was only fourteen days’ notice.</p>

<p>Pleading — master and servant — negligence—complaint not stating cause of action — motion to dismiss.</p> <p>A complaint merely alleging that one deceased, while engaged in work required' of him under his<c?mployment, suffered mortal injuries caused solely by the negligence of thFdefendant and of the person intrusted with superintendence does not state a cause of action.</p> <p>While a plaintiff in a negligence action may state generally a culpable breach of some duty owing by the master, the thing to which that duty attaches must be pointed out.</p> <p>A motion to dismiss such complaint on the ground that it does not state facts sufficient to constitute a cause of action is sufficiently- specific, the defendant not being required to point out what is lacking.</p>

Appeal by the plaintiff, the Midwood Parle Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office.of the clerk of the county of Kings on the 5th day of November, 1910.

<p>Sale — conditional sale — chattels tobe annexed to building — failure to file contract before furnishing chattel — conversion — when purchaser of premises may resell without becoming liable to conditional vendor — default in performance of building contract — waiver — evidence — bona fide purchaser — burden of proof.</p> <p>A contract for the conditional sale of chattels to be attached to a building is void as against a bona fide purchaser of the premises if not filed until after they .were furnished by the vendor.</p> <p>One who has contracted to furnish and place chattels in a building under a contract of conditional sale reserving title until payment, cannot hold persons who bought the premises on foreclosure liable for' a conversion, of the chattels in conveying the property to a third party, without proof that he was not in default under his contract and was entitled to possession. The purchasers on foreclosure succeeded to" the property interests subject to the plaintiff’s rights, if any, and could sell the property before default.</p> <p>Moreover, the conditional vendor, even if not in default, should demand the property, or payment, before suing for conversion, at least in the absence of proof of a sale to a bona fide purchaser.</p> <p>The purchasers on foreclosure cannot without a.demand for the property, or for payment, be held for conversion in conveying the lands in the absence of proof that they conveyed to .a bona fide holder insome way inconsistent with the plaintiff’s rights, if any. This, because there is no presumption that the purchaser was a bona fide purchaser taking without notice of the conditional sale or that the defendants committed a tortious act.</p>

<p>Appeal by the defendant, the Moquin, Offerman, Wells Coal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of April; 1910, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the ' same day denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Evidence — presumption—failure to produce witness—erroneous charge.</p> <p>The inferences to be drawn from- á failure to produce an available witness at triai are to be determined on the facts of each case. There is no hard and fast rule which applies uniformly to every case.</p> <p>It is error to charge that the jury may infer from the plaintiff’s failure to produce expert witnesses who testified to a boundary line at a former trial that their testimony would be against the plaintiff, where the survey made by the former witnesses and their testimony were offered in evidence on the second trial but were excluded on the defendant’s objection, and their evidence in any event would have been cumulative owing to new testimony on the issue given by another expert.</p>

Appeal by the defendant, Michael J. Dady, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 31st day of March, 1910, upon the verdict of a jury for $2,000,-and also from an order entered in said-clerk’s office on the 6th day of April, 1910, denying the defendant’s motion for a new trial made-upon the minutes.

Appeal by Karl R. Miner 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 9tli day of June, 1910, as resettled by an order entered in said clerk’s office on the 7th day of July, 1910, fixing the fees of appellant as attorney in the above-entitled action.

<p>Appeal by the defendant, the New Era 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 Orange on the 5th day of March, 1-910, upon the report of a referee appointed to hear and determine.</p>

<p>Appeal by the plaintiff, John Huther, 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 14th day of Hay, 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.</p>

<p>Appeal by the defendant, Raffaele Pisano, from a judgment of the County Court of Kings county, rendered on the 25th day of January, 1910, convicting the said defendant of the crime of attempt to commit murder in the first degree, and also from an order denying his motion for a new trial.</p>

Appeal by The City of New York from so much 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 30th day of July, 1910, as denies the appellant’s application to remove the respondent as one of the commissioners herein.

<p>Appeal by the defendant, The Foundation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th 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 21st of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, John J. Boach, 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 18th day of February, 1910, upon the verdict of a jury for $1,150, and also from an order entered in said clerk’s office on the 15th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Fraud — suit to set aside conveyance:—evidence—proof of insolvency — consideration — witness — credibility — costs, when secretary of defendant corporation not liable therefor.</p> <p>Qucere, as to whether the return of an execution unsatisfied five months after the judgment debtor made a conveyance alleged to have been in fraud of creditors is sufficient to show .insolvency at the time of the conveyance. ■</p> <p>A finding that a debtor rendered himself insolvent by making a conveyance is not justified if he retained several other parcels of land which he did not convey to oth&r parties for several weeks.</p> <p>A recital in a deed of a “consideration of One Hundred Dollars and other vain, able considerations ” is no proof that the conveyance was purely voluntary and without consideration.</p> <p>Where a creditor suing to set aside an alleged fraudulent conveyance made to a corporation calls the secretary of the corporation as a witness he vouches for his general credibility, and the court is not- at liberty to reject his evidence as incredible where there is no evidence contradicting him and his testimony is not inherently improbable or suspicious.</p> <p>In such suit it is error to charge the secretary of the corporation to which the property was conveyed with a judgment for costs and an extra allowance, although he was made a party defendant, if no privity is shown between him and the plaintiff, and he does not appear to have any personal interest in the subject-matter of the controversy save as an officer of the corporation.</p> <p>Hirschberg, J., dissented.</p>

<p>Appeal by the-defendant, Edward R. McLaury, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of "Westchester on the 29th day of- April, 1910, upon the verdict of a juiy, and also from ail order enjtered in said clerk’s office on the 3d day of May, 1910, denying the said defendant’s motion for a new trial made upon the minutes.</p>

<p>Master and servant — negligence — defective appliances — proof necessary to recovery — notice — failure to inspect — fellow-servants — defect not causing accident —- res ipsa loquitur — proof not justifying . recovery.</p> <p>A master cannot be charged with liability for injuries to a servant upon mere proof that something was out of order in the machinery used by him; there must be proof either of- actual notice of the defect, or of a condition which would .result in notice if there had been a reasonable inspection of the machinery by the master.</p> <p>A laborer employed by a master engaged in disposing of city refuse and a person employed by him to operate an electric motor controlling the hoisting appliances are fellow-servants, and the master is not liable for the negligence of the latter in a common-law action.</p> <p>This is true although the servant operating the motor after notifying the master’s superintendent that a clip holding the loop in the hoisting cable had become loose, continued to use the appliance, if there be no proof that the superintendent gave any directions as to the further use of the appliance. It will not be presumed that the superintendent ordered the motorman to continue to operate the appliance merely because he continued to do so, where it appears that he thought the other clamps holding the cable were sufficient, as that explains his action.</p> <p>A defect in some part of an appliance does not create a liability unless that particular defect was the .cause of the accident.</p> <p>Thus, where a loop in a hoisting cable was secured not only with clamps of sufficient' strength to hold it, but also with clips, the latter not being necessary to make the appliance reasonably safe but an extraordinary precaution, there can be no recovery for an injury occasioned by the slipping of the loop upon mere proof that one of the superfluous clips had become loosé.</p> <p>While it cannot be said that the rule of res ipsa loquitur is never applied to cases between master and servant, it is'rarely so applied.' As a general rule, in the absence,of proof showing negligence, there is a presumption that the master has done his duty, and mere proof of an accident, even of an unusual character, does not destroy this presumption.</p> <p>A master is not liable simply because some part of an appliance became out of order. It must have been out of order long enough to charge him with negligence in failing to discover it by proper inspection.</p> <p>Where it appears that there were frequent inspections of appliances used by the master, and one inspection was had a day or two before the accident, and there is no proof that the clamps holding the loop in the cable became loose before ■ the accident, it will not be presumed that the clamps became loose merely because a pulley had a tendency to strike against a clip which became loose so as to transmit the force of the impact to the clamps through the cable.</p>

Appeal by the defendant, the Globe and Rutgers Fire Insurance 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 20th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of May, 1910, denying tlie defendant’s motion for a new.trial made upon the minutes.

Appeal by tlie defendant, Hyman Lefkowitz, from a judgment of tbe Supreme Court in favor of tlie plaintiffs, entered in tlie office of tbe clerk of tbe county of New York on the 22d day of June, 1910, upon tbe verdict of a jury rendered by direction of the court.

Appeal by. the defendants, The City of New York and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of March, 1910, upon the report of a referee appointed to hear and determine.

Appeal by the defendant, Jamin S. Morse, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of March, 19.10, affirming a final order of the Municipal Court of the city of New York in favor of the plaintiff entered in the office of the clerk of said court on the 6th day of October, 1909, in a summary proceeding to recover possession of the property from a tenant holding over after the…

<p>Crime — extradition — physical presence of criminal in other State at time óf crime essential — sufficiency of foreign indictment —: proof justifying extradition — habeas corpus.</p> <p>A fugitive from justice will not be extradited' unless he was physically present in the foreign State at the time of the commission of the alleged crime. Extradition will not be granted on the theory of a constructive presence.</p> <p>Our courts will not determine the sufficiency of a foreign indictment under which extradition is demanded, that being a matter solely for the courts of the other State.</p> <p>Evidence in an application forthe extradition of a fugitive from justice examined, and held, to show that the fugitive was actually present in the foreign State at or about the time of the commission <of the crime as charged'in the indictment, so that his application for discharge on writ of habeas corpus should be denied. The courts will not interfere on habeas corpus 'and discharge a fugitive from justice upon technical grounds, unless it be clear that the Governor’s action in issuing a warrant for extradition plainly contravenes the law.</p>

Appeal by the defendant, William J: Farrell, individually and as executor, etc., and cross-apjDeals by the plaintiff, Louis Liado Farrell, and the defendants, Francisco Liado Farrell and another,.from a judgment of the Supreme Court, entered in the office of the clerk of the county of blew York on the 25tli day of June, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the plaintiffs, John II. Yought and another, as subtituted trustees, etc., from an interlocutory 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 27th day of October, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer to the complaint.</p>

Appeal by the defendants, Artemas Ward and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27tli day of June, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, directing the specific performance of a contract.

Appeal by the plaintiff, John H. Seudder, 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 16th day of June, 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 Medical Society of the County 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 2Sth day of April, 1910, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 4th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Burr Brothers, Incorporated, froto a judgment of the Supreme Court in favor-of the plaintiff, entered-in the office of the clerk of the county of New York on the 12th 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 21st day of January, 1910,'denying the defendant’s motion for a new trial made upon the minutes.

<p>Reference.— examination of long account — proof prerequisite to order — form of order — costs.</p> <p>A trial justice has no power to withdraw a juror and direct "a reference in an action at law in the absence of papers showing that the.trial will necessitate the examination of a long account and will not involve difficult questions of law.</p> <p>Moreover, if such facts appear from the pleadings, admissions of counsel, or by the testimony at trial, the order of reference should specify that the pleadings, admissions or testimony were considered, and that from them the court reached the conclusion that the reference was proper.</p> <p>One appealing from an order of reference is entitled to have the order resettled so as to contain a recital of the papers considered by the judge.</p> <p>Where a party successfully appeals from an order of reference,, from an order denying a motion to resettle it by specifying the papers upon which it was granted, and from an order denying a motion to set the order aside as irregular under rule 3 of the General Rules of Practice, he should be allowed ten dollars costs and disbursements in each appeal.</p>

Appeal by Robert L. Turner and another from a decree of the Surrogate’s Court of the county of New York, enteredin said Surrogate’s Court on the 8th day of July, 1910, admitting to probate a paper propounded as the last will and testament of Matilda Turner, deceased, and construing certain parts thereof.

Appeal by the defendant, Robert J. Mahoney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county .of New York on the 23d day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27tli day of May, 1910, denying the said defendant’s motion for á new trial made upon the minutes.

Appeal by the defendants, John Crosby Brown and others, copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 20th day of June, 1910, upon the report of a referee.

Appeal by the petitioner,.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 8th day of March, 1910, as amended nxmc pro tunc by an order entered in said clerk’s office on the lltli day of October, 1910, denying the petitioner’s motion to confirm the report of commissioners of estimate in part' and referring the matter back for further proof.

Cross-appeals by the plaintiff, Reginald Gr. Barclay, and' the defendant, Alexander Barrie, from parts of an interlocutory judgment of the Supreme Court, entered in the office of the cleric of the county of New York on- the 2d day of July, 1910, upon the decision of the court after a trial at the New York Special Term, as amended nunc pro tuneby an order entered-in said clerk’s office on the 22d day of July, 1910. ,

Appeal by the plaintiff, The Johnson Service Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of March, 1910, upon the verdict of a jury, and also from an order .entered in said clerk’s office on. the 11th day of April, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by J. Archibald Murray, claimant, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the. clerk of the 'county of New York on the 30th. day of December, 1910.

Appeal by the defendant, the Follett Time Recording 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 16th day of January, 1911.

■ Appeal by the defendants, Thomas Hay Thomas and others, from an interlocutory 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 New York on the 28th day of June, 1910, ' upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, James Bartlett Hammond, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of June, 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 the defendant, 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 19th day of February, 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 23d day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, 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 19th day of February, 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 23d day of February, 1910, denying the defendant’s motion for ■ a new trial made xipon the minutes.

Appeal by the plaintiff, John 1. Moriarty, 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 29th day of June, 1909, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff rendered on the 3d day of December, 1908, and directing a new trial of the'action.

Appeal by the Calendar Realty 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 28th day of November, 1910, confirming a supplemental report of the commissioner of assessment herein.

Appeal by the petitioner, 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 14th day of November, 1910, as amended nunc pro tuno by an order entered in said clerk’s office on the 19th day of December, 1910, dismissing the petition and all proceedings herein, and vacating an order appointing commissioners of estimate and assessment.

Appeal by the defendants, Christine Eidt and others, from an interlocutory judgment of - the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of- New York on the 23d day of May, 1910, upon the. decision of the court rendered after a trial at the New York Special Term in an action brought for the partition of certain real-estate.

Appeal by the plaintiff, Anna E. Moore, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 15th day of March, 1910, upon the report of a referee dismissing the complaint.

<p>Discovery — examination before trial denied.</p> <p>A defendant will not be allowed to examine the plaintiff before trial for the sole purpose of cross-examining him upon matters which he will be compelled to prove in order to establish his cause of action, that is to say, the defendant will not be allowed an examination for the purpose of obtaining the plaintiff's case in advance rather than to elicit evidence to support his own case.</p>

Appeal by the plaintiff; William Smart, 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 9th day of December, 1910, dismissing the complaint for failure to prosecute.

Appeal by the defendant, the Consolidated Fire Alarm Com* pany, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of November, 1910, directing the issuance of a peremptory writ of mandamus commanding the defendant, its officers, agents and representatives to permit the relator to examine and inspect its' books, papers, documents and records and to take extracts therefrom.

<p>Appeal by tiie defendants, The Wabash Railroad Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1910, upon the decision of the court, rendered after a trial at the ¡New York Special Term, overruling the said defendants’ demurrers to the complaint.</p> <p>This suit was commenced in 190.7. It was removed into the .Circuit Court of the United States but was finally remanded. While in the Circuit Court demurrers interposed by the appellants herein were overruled. This appeal .is from an interlocutory judgment overruling demurrers "interposed on the ground that there is a misjoinder of causes of action; that there is a defect of parties defendant, and that the complaint fails to state a cause of action as to the defendants the Mercantile Trust Company and the United States Mortgage and 'Trust" .Company.</p>

Appeal by the. plaintiff, Ida Small, 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 3d day of December, 1909, upon the verdict of a jury rendered by direction of the court. ■

ApPEAL-by the plaintiffs, Eli Holes and another, from abridgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 3d day of November, 1910-, upon the dismissal of the complaint by direction of the court at the close of plaintiffs’ case on a trial at the New York Trial Term. ■

<p>Appeal by Mortimer Van Cott, Jr., and others, remaindermen, from an order of the Supreme Court, made at the Eew York .Special Term and entered in the office of the clerk of the county of Eew York on the 3d day of Eovember, 1910, authorizing the mortgaging -of the trust estate 'herein and the using of the moneys realized thereby,' with notice of intention to bring up-for review an order entered in said clerk’s office on the 11th day of October, 1910, authorizing the filing of. a supplemental -affidavit in support of the motion for leave to mortgage, and an order entered on the same day denying the appellants’ motion to dismiss the petition.</p>

Appeal by the defendant, Howard M. Durant, from an order of ; the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1911, denying the said defendant’s motion to be relieved from a stipulation that a commission issue for the examination of the plaintiff McManus upon written interrogatories.

Appeal by the defendant, William E. Lindstedt, Ji\, 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 January, 1911, denying the defendant’s motion to vacate an attachment for insufficiency of the papers upon which it was granted.

Appeal by the plaintiff, Catherine Y. Thoma, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the coutity of New York on the 14th 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 William A. Prendergast, as comptroller of the city of York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1910. •

Appeal by Samuel J. Clarke from an. order of tbe Supreme Court, made at tbe New York Special Term and entered in the office of tbe clerk of tbe county of New York on tbe 2d -day of December, 1910, as resettled by an' order entered on the 20th day' of December, 1910, denying tbe appellant’s motion for leave to enter bis appearance and answer the complaint herein.

Appeal by Joseph F. Snipes from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of December, 1910, as resettled by an order entered in said clerk’s office on the 20th day of December, 1910, denying the appellant’s motion for leave to enter his appearance and answer the complaint herein.

<p>Appeal by the relators, E. P. Bryan and others, as trustees, etc., from- two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of May, 1910, confirming assessments against the property of the relators for the years 1908 and 1909, respectively, and dismissing proceedings to review the same.</p>

<p>Attorney at law disbarred.</p> <p>Attorney at law disbarred for misappropriating moneys deposited with him in . trust to be used to cancel liens on real property which was the subject of a transaction between his client and a third party.</p>

<p>Trial — exclusion of witnesses from courtroom — motor vehicles — injury to pedestrian — trial-—charge — mistrial — misconduct of counsel — skidding of automobile caused by application of brakes.</p> <p>The granting of a motion to exclude witnesses from the courtroom during the examination of another witness is in the discretion of the court. But as it is often extremely important that the witnesses testifying in a negligence action should be examined without having heard the testimony of other witnesses, so that each shall state his impression of the occurrence nncolored by what he has heard from the others, a denial of a motion to exclude witnesses may, it seems, amount to an abuse of discretion.</p> <p>A charge in a negligence action which merely states that .the plaintiff claims she was struck by an automobile owned by the defendant and that her injury was due solely to the defendant’s negligence without contributory negligence on her part, but does not point out to the j ury what would be sufficient to charge the defendant’s driver with negligence, or what he omitted to do which would justify such a conclusion, is defective in failing to give the jury an idea of what is necessary to be proved in order to justify a recovery.</p> <p>Where the court has refused a defendant’s request to charge the plaintiff’s counsel has no right to insist that the request be charged,, or to state in the pres, ence of the jury that it does not make any difference whether or no the court charges as requested, for such statements tend to divert the minds of the jury so that it is possible that the defendant may not have the benefit of the rule of law laid down by the court.</p> <p>In an action to recover for injuries caused by an automobile which skidded and struck the plaintiff while stariding upoathe sidewalk, there must be a finding justified- by the evidence either that the chauffeur Was negligent in' the opera; tion of Ms machine, that he did some act which a prudent person would not have done, or omitted some act which a prudent person would have done in the operation of the vehicle, or that in some other respects the defendant or Ms agents were negligent.</p> <p>A chauffeur eannot.be held negligent in applying the brakes of an automobile while not going at an excessive rate of speed' in order to reduce the speed even though skidding occurred from the application of the brakes owing to the' slippery condition of the pavement, if there be nothing to show that he did not do all that he could have done to avoid the -accident. This, because if he had not attempted to regulate the speed of the machine by the brakes there might arise a question as to his negligence in failing to do so.</p> <p>Trial of an action for negligence examined, and held, that a judgment for the plaintiff should be reversed for a mistrial because of the misconduct of counsel in examining witnesses, in addressing the jury so as to excite their prejudices, in attempting to assume direction of the trial and in abusing the defendant’s counsel without justification.</p>

Appeal by the defendant, The United States Trust Company of New York, individually and as trustee, 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 16th 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 defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Frederick W. Elmenhorst and others, composing the copartnership, etc., from an order of the Appellate Term of the Supreme.Court, entered in the office of the clerk of the City Court of the city of Mew York on the 10th day of March, 1910, affirming a judgment of the City Court in favor of the plaintiff, rendered on the 21st day of October, 1909, and also from a judgment of affirmance entered in the office of the clerk of said City Court on the 22d…

Appeal by the defendants, Number One Wall Street Corporation q,nd others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 30th of December, 1909, upon the decision of the court rendered after a trial at the New York'Special Term.

Appeal by tbe defendant, tbe Frankfort Marine Accident and Plate Glass Insurance Company-of Frankíort-on-thedMain, Germany, from a judgment of tbe Supreme Court -in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of New York on tbe 21st day of March-, 1910, upon tbe verdict of a jury,, rendered by direction of tbe court after a special verdict, and also from an order entered in said clerk’s office on tbe 14th day of April, 1910, denying - the…

<p>Appeal by the plaintiff, Emile Gr. Des Jardins, from a judgment of the Supreme Court in favor of the defendants, entered .in the office of the clerk of the county of New York on the 15th day of October, 1909, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.</p>

<p>Appeal by the defendant, Kathleen Horn, 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-©! New York on the 11th day of October, 1910, modifying an order for the payment of counsel fees. '</p>

Appeal by the defendant, Sidney S. Meyers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of June, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendant, the Trustees of Presbytery 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 27th day of September, 1910, upon the verdict of a jury rendered by direction of tbe court, and also from an order entered in said clerk’s office on the 23d day of September, 1909, denying the defendant’s motion for a new trial.</p>

Appeal by the plaintiff, the Trustees of the Presbytery of New York, a domestic corporation, from a final 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 30th day of April, 1910, pursuant to an interlocutory judgment entered in said,clerk’s office on the 7tli day of April, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer…

Appeal by the defendant, Jacob Cohen, from an order of the Supreme Conrifc, made at the New York Special Term and entered in the office of the clerk of the county of. New York on the 27 th day of June, 1910, denying the said defendant’s motion to vacate a judgment of foreclosure and sale in so far as it provides for a deficiency judgment against him, and to permit him to interpose an answer to so much of the complaint as sets forth a claim for a deficiency judgment.

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 Kings on the 18th day of January, 1910, 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. No opinion. Hirschberg, P. J., Woodward and Rich, J J., concurred. Jeuks, J., read for reversal, with whom Carr, J., concurred.

.Appeal by the plaintiff from-a judgment of the Special Term, entered in the office of the clerk of the county of Kings on the 29th day of May, 1909.

Appeal by the defendant from a judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the clerk of tho county of Westchester on the 29th day of October, 1909, upon the report of a referee.

<p>Costs — extra allowance.</p>

<p>Appeal by the United Boroughs Realty Company, claimant, from an order of the Special Term, entered in the office of the1 clerk of the county of Queens on the 24th day of October, 1910, as .resettled by an order entered on the 7th day of November, 1910.</p>

Appeals by various parties from an order of the Surrogate’s Court of Columbia county, entered on the 24th day of June, .1910, refusing letters of administration with the will annexed of the said Frances C. Robinson, deceased.

Appeal by the defendant from an order of the Supreme Court, entered in the office of the clerk of the county of Rensselaer on the 4th day of May, 1910, denying the defendant’s motion to change the place of trial from the county of Rensselaer to the county of Schenectady.

<p>Railroad — negligence — damage to adjoining land by fire.</p>

<p>Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the Saratoga county clerk’s office August 15, 1910, upon the verdict of a jury for §3,000, and from an order denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendant, entered in the clerk’s office of the county of Schuyler on the 15th. day of December, 1908, upon the verdict of a- jury, and also from an order entered in said clerk’s office on the 38th day of September, 1909, denying plaintiff's motion for a new trial. Judgment and orders affirmed, with costs. All concurred, except Houghton, J., dissenting in opinion.

<p>Motion in each case to open default.</p>

<p>Appeal from an order of the Special Term, entered in the New York county clerk’s office on the 29th day of June, 1910, denying the application of the petitioner for an order revoking and canceling a. liquor tax certificate upon the ground that the holder thereof had suffered and permitted the certificated premises to become disorderly.</p>

<p> Surrogates Court—jurisdiction after appeal. </p>

<p>Appeal from an order entered in the New York county clerk’s office on the 5th day of December, 1910, granting a motion for an inspection and discovery of documents in possession of defendants.</p>

<p>Appeal from an order of the Special Term, entered in the New York county clerk’s office on the 12th day of December, 1910, fixing the lien of the petitioner.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 23d day of June, 1910, upon the verdict of a jury, and from an order entered on the 28th day of June, 1910, denying a motion for a new trial.</p>

<p>Appeal from parts of an order entered in the New York county clerk’s office on the 7th day of December, 1910, granting a motion for a bill of particulars.</p>

<p>Master and servant — negligence—■violation of Labor Law.</p>