Volume 143 — New York Appellate Division Reports

Appeal by the defendant, The New York Contracting Company — Pennsylvania Terminal, 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 June, 1910, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 28th day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The J. L. Mott Iron Works, 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 November, 1909, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial .made upon the minutes.

<p>Certiorari issued out of the Supreme Court and attested on the 30th day of June, 1910, directed to Patrick A. Whitney, commissioner of correction of the city of Yew York, commanding him to certify and return to the office of the clerk of the county of Yew York all and singular his proceedings had in relation to the remoyal of the relator from the position of purchasing agent in the department of correction of the city of Yew York.</p>

Appeal by the relator, the Hudson and Manhattan Railroad Company, from a final order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 7th day of June, 1910, confirming an assessment against the relator’s special franchises in the borough of Manhattan, Hew York, for the purpose of taxation for the year 1909, and dismissing the proceeding, and also from a judgment entered on the 8th day of July,…

<p>Nuisance — injury by landslide — proximate cause — excavation made by adjoining owner — maintenance of existing nuisance by grantee — , reasonable time to abate nuisance — landlord and tenant —• knowledge of nuisance at time of lease.</p> <p>Where codefendants severally owning adjoining clay nits had so excavated as to deprive the adjacent soil of lateral support and the plaintiff was injured by a landslide which caused the house in which she dwelt to fall into a pit, the defendant owning the pit farthest from the house may, nevertheless, be held liable if the cause of the landslide can be traced directly to him. But the complaint should be dismissed as against him in the absence of such proof. If one acquire lands on which a nuisance exists he becomes liable for the maintenance after his purchase, with the qualification that the liability does not attach until he has notice of the nuisance and has had a reasonable time within , which to abate it.</p> <p>But one who purchased a clay pit sixty feet deep, shelving at an angle of ninety-five degrees, on the crest of which the plaintiff’s house was located, cannot be held for a failure to abate the nuisance where the landslide occurred only five days after he purchased the property.</p> <p>Where in an action against several defendants to recover for injuries so caused there is no evidence to show upon which of the properties severally owned by them the landslide began, so that the question as to which defendant caused the slide is a matter of pure speculation, the liability of an owner of a particular pit should not be submitted to the jury.</p> <p>It is not contributory negligence for a landowner to use his land, although injury is to be expected from an existing nearby nuisance.</p> <p>The rights of the wife of a tenant and the duties of the landlord to her are, so far as the safety of the demised premises are concerned, the same as the rights of, and the duties toward, the husband.</p> <p>A tenant who leases real property which is openly ruinous or dilapidated, or perilously located, cannot hold the landlord for injuries occasioned by these conditions, in the absence of fraud or warranty, unless the landlord actively interferes in such manner as to increase the existing hazard during the term. Hence, where the plaintiff’s husband leased the house from the owner of the pit into which it fell, there can be no recovery against him on his obligation as landlord wrhere he had made no excavation in the pit for the four years preceding the landslide, and during that term the plaintiff’s husband has renewed the , lease with full knowledge of the existing conditions. This is true whether the pit was a public or private nuisance.</p>

<p>Appeal by the defendant, the Manufacturers’ Automatic Sprinkler 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 5th day of May, 1910, upon the verdict of a jury for $17,000, and also from an order entered in said clerk’s office on the 26th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>Among other things the court charged the jury that the scaffold under the law was required to bear four times the weight which plaintiff said he put upon it, and it having fallen, it is within the province of the jury to find that the defendant was negligent in not furnishing plaintiff with a safe scaffold.</p>

Appeal by the defendants, Eugene Zimmerman and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 1st day of February, 1910, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 26th day of January, 1910, denying the said defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the New Rochelle Water 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 28th day of April, 1910, upon the decision of the court, rendered after a trial at the W estchester Special Term, except in so far as said judgment is amended and resettled by an order entered in said clerk’s office on the 26th day of May, 1910.</p>

<p>Appeal by the plaintiff, Eva Steinbrenner-, from two judgments of the Supreme Court in favor of the respective defendants, entered in the office of the clerk of the county of Queens, one on the 23d day c April, 1910, and the other on the 11th day of J une, 1910, upon the dismissal of the complaint by direction of the court as to both defendants respectively, after a trial at the Queens County Trial Term.</p>

<p>Appeal by the defendant, Louis ¡Marshall, from so n i of a judgment of the Supreme Court in favor of the plaintiff entered day of August, 1910, upon the decision of the court, rendered after a trial at the Westchester Special Term, as denies and dismisses the said defendant’s claim to a lien for legal services upon the award of commissioners in a condemnation proceeding instituted by the board of water commissioners of the village of White Plains.</p>

Appeal by the defendant, Bertram Ball, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of October, 1910, upon the decision of the court, rendered after a trial at the Westchester Special Term, perpetually restraining the defendant from depositing earth or other materials upon a certain strip of land.

Reargument of an 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 Rings on the 8th day of April, 1910, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 2d day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Pleading — admission—resolution of corporation “ duly adopted ” — contract for services construed — when no ambiguity — Statute of Frauds — contract not to be performed within one year—resolution of corporation — performance by promisee.</p> <p>Where the answer of a corporation sued for breach of contract of employment admits that the resolution employing the plaintiff was “duly adopted,”it cannot contend that the contract was invalid upon the ground that the vote of the plaintiff, a director, was necessary to its adoption. That which is “ duly ” done is in legal parlance done according to law, and this does not relate to form merely, but includes both form and substance.</p> <p>A resolution by a corporation employing a general manager for ten years and providing for payment “at the rate of one hundred (100) dollars per week and payable as follows, to wit: Not more than fifty (50) dollars per week in cash; the balance remaining due and unpaid, being the difference between the whole amount paid in cash on account of wages and the total amount of wages at $100 per week for the number of weeks that he shall have faithfully and truthfully performed the duties of Manager, shall be paid by issuing to him in his name as many shares of the Common Stock of the Company as the sum so due and unpaid will purchase at one hundred (100) dollars per share. The number of shares so issued shall at no time exceed one hundred,” is not ambiguous so as to be construed as providing for $50 per week in cash and $50 per week in stock until $10,000 of stock had been earned and then $50 per week during the remainder of the term. Under such contract the plaintiff having paid for his stock from his salary is entitled to $100 per week for services.</p> <p>While a party may be entitled to have an agreement construed in the light of the surrounding circumstances, that is a rule of interpretation merely and does not allow the court to make a new contract, to reform it, or to disregard its terms.</p> <p>Where the corporation has had the benefit of the plaintiff’s services under said contract it cannot contend that, as the agreement was not to be performed within one year and the plaintiff never signed a written memorandum of acceptance, it was void under the Statute of Frauds.</p> <p>The Statute of Frauds may not be invoked to perpetrate a fraud.</p> <p>Moreover, the resolution of the corporation entered on its records and signed by its president complied with the statute, as the corporation was the party,to be charged with the payment.</p>

<p>Reargument of an appeal by the defendants, Leonard Jacob, Jr., and another, copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff and the defendant Lown, entered in the office of the clerk of the county of Dutchess on the 7th day of February, 1910, upon the decision of the court, rendered after a trial at the Dutchess County Special Term, adjudging to be valid certain liens of the plaintiff and of the defendant John D. Lown.</p>

Appeal by the plaintiff, Marguerite M. Demarest, from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk 'of the county of Queens on the 9th day of January, 1911, denying the plaintiff’s motion for costs.

Certiorari issued out of the Supreme Court and attested on the 18th day of January, 1910, directed to William F. Baker, as police commissioner of the police department of the city of Hew York, commanding 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 dismissal of the relator from the police force.

Appeal by the defendants, Seymour W. Bonsall and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of Hay, 1910, upon the verdict of a jury for $13,458.71, and also from an order entered in said clerk’s office on the 7th day of Hay, 1910, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Municipal Court of tiie city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 10th day of February, 1910.

, Appeal by the defendant, Percy B. Purdy, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of May, 1910.

Appeal by the defendant, Welz & Zerweck, a corporation, from' a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 1st day of June, 1910.

<p>Municipal corporations — appointment of probation officers, city of New York — mandamus — civil service — classification.</p> <p>Mandamus lies to compel the board of city magistrates of the city of New York to appoint probation officers, as required by chapter 659 of the Laws of 1910, although it is yet undetermined whether such positions must he filled from the civil service eligible lists, or are exempt from competitive examination. This, because temporary appointments may be made if the positions are subject to a competitive examination, and if not appointments maybe made without regard to eligible lists.</p> <p>But in such proceeding the court will not determine whether said positions are competitive or not, where neither the city nor State civil service commissions have been made parties to the proceeding so as to be bound thereby.</p> <p>Appeal by the defendants, Otto Kempner and others, 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 pn the 30th day of November, 1910, granting the petitioner’s motion for a peremptory writ of mandamus.</p>

Appeal by the defendant, the United States Exchange Bank, 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 March, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Michael Horan, from an order of the commissioner of public safety of the city of Yonkers bearing date the 5th day of August, 1910.

<p>Appeal by the plaintiff, Charles W. MacQuoid, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 9th day of September, 1910, and re-entered on the 19th day of September, 1910, upon the decision of the court, rendered after a trial at the Queens County Special Term, sustaining the defendants’ demurrer to the complaint.</p>

Appeal by the plaintiff, Ava Belle Knickerbocker, 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 25tli day of May, 1910, and also from a judgment in favor of the defendant entered in said clerk’s office on the same day pursuant to said order.

Appeal by the defendant, The Singer Manufacturing Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of November, 1910, denying the said defendant’s motion for judgment on the pleadings, pursuant to section 547 of the Code of Civil Procedure.

Appeal by the defendant, The People’s Surety Company, from a judgment of the Municipal Court of the city of ¡New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 20th day of July, 1910.

Appeal by the defendant, Morgiana Ludlow, 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 16th day of November, 1910, permitting the plaintiff to issue an execution upon a judgment.

Appeal by the plaintiff, William B. Walsh, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, rendered on December 15,1910, dismissing the complaint.

Appeal by the defendants, Edward I. Townsend and others, from a judgment of the County Court of Rockland county in favor of the plaintiff, entered in the office of the clerk of said county on the 21st day of July, 1910, upon the verdict of a jury, and also from am order entered in said clerk’s office on the 25th day of July, 1910, denying the defendants’ motion for a new trial made unon the minutes.

Appeal by the plaintiff, Newman Leavy, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in the office of the clerk of said court on the 25th day of June, 1910, dismissing the complaint upon the merits, with costs.

Appeal by the plaintiff, Samuel Rotlibart, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 6th day of October, 1910, dismissing the complaint at the close of the plaintiff’s case.

Appeal by the defendant, the Marine Journal Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor, of the plaintiff, rendered on the 7th day of November, 1010.

Appeal by the plaintiff, Gerhard T. Potthoff, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of March, 1910, upon the decision of the court, rendered after a trial at the Kings County Trial Term, a jury having been waived, dismissing the complaint upon the merits.

Appeal by the defendant, The People’s Trust Oompany, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiffs, rendered on October 28,1910.

Abbeal by the defendant, the Wading River Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 16th day of February, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term,.and also from an order made at the Suffolk Special Term, bearing date the 5th day of February, 1910, and entered in said clerk’s office on the 8th day of March, 1910, denying…

Appeal by the defendant, M. Frank Dennis, from an order of . the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 29th day of September, 1910, denying a motion to stay further proceedings in this action until the payment of costs in a former action between the parties, and also from an order entered on the 17th day of October, 1910, resettling the first order.

<p>Attorney and client — continuation of action to preserve lien.</p> <p>A plaintiff who is concededly able and willing to pay all his attorney’s just claims for services and disbursements should be permitted to discontinue the action. "Where an attorney commenced an action in violation of his client’s instructions he has no lien requiring the protection of the court, and, if both parties so desire, the action should be discontinued despite the attorney’s opposition.</p>

<p>Tax — special franchise — permit to tap water main.</p> <p>Where two corporations in 1881 obtained from the water purveyor of the city of Brooklyn a permit to tap the city water main upon certain conditions, and thereafter and with the consent of the abutting property owners laid a pipe from the city main to their factories for their private use only, such permit is not taxable as a special franchise.</p> <p>The water purveyor did not assume to grant a privilege to lay or maintain pipes in the street, but only the privilege of connecting such pipe when laid with the existing city main at its termination, nor did he have authority to grant any further right.</p> <p>A franchise to lay and maintain water pipes could at that time have been granted only by the legislative body in the city of Brooklyn.</p>

Appeal by the judgment creditor, Daniel Ryan, from an order of the Supreme Court, made at the Engs County Special Term and entered in the office of the clerk of the county of Engs on the 27th day of October, 1910, denying his motion for the appointment of a receiver in proceedings supplementary to execution.

<p>Appeal by the defendants, Mary E. McDonough and others, from part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of October, 1910.</p>

Appeals by the plaintiffs, John M. Lifschitz and another, and by Frederic S. Marsell and another, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, rendered on the 22d day of September, 1910, in favor of the plaintiffs against Marsell and Sherman, and in favor of the defendant O’Brien against, the plaintiffs; also from orders denying motions for a new trial.

Appeal by the defendant, Albert A. Engle, 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 24th day of March, 1910, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Frederick W. Whitridge, as receiver, etc., from a judgment of the Supreme Court in favor of the plaintiff,'entered in the office of the clerk of. the county of Hew York on the 19th day of April, 1910, upon the verdict of a jury for $30,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made, upon the minutes.

Appeal by the plaintiffs, Frances L. Wallace and another, as committee, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 15th day of July, 1910, vacating an order for the examination of certain of the defendants before trial.

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 Hew York on the 15th 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 1st day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Motor vehicles — negligence — injury to pedestrian — when owner loaning car not liable.</p> <p>The owner of a motor car is not liable for personal injuries caused by it merely because he owned the car, or because the chauffeur driving it was employed by him, if at the time the chauffeur was not engaged in the owner’s business. Thus, where two brothers owned motor cars and agreed that either could use the car of the other as he desired, the owner of one car is not liable for injuries to a pedestrian occurring through the negligence of the chauffeur while the car was being used by his brother in his own business, even if the chauffeur driving the car were employed and paid by the owner.</p> <p>Servants who are employed and paid by one person may nevertheless be ad hoa the servant of another in a particular transaction.</p>

Appeal by Hermann H. Cammann, as executor, etc., from part of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1910.

<p>Attorney at law disbarred.</p> <p>Attorney at law disbarred for inducing his client to loan money upon a mortgage which he knew had been foreclosed, and in representing it to he good security, when in fact no interest had been paid for a long time and the lands were subject to unpaid taxes, etc.</p> <p>Proceedings to discipline the respondent for unprofessional conduct.</p>

<p>Attorney at law disbarred.</p> <p>Attorney at law disbarred for converting money collected for a client and in forging receipts showing payment hy him, etc.</p> <p>A proceeding to disbar an attorney is not a criminal proceeding, and the statutory rule of no presumption does not apply.</p>

<p>Real property — vendor and purchaser — marketable title — will construed.</p> <p>Where a testator gave his widow a life estate and at her death or remarriage devised the property to his children “and to the descendants of any of them then deceased in the proportion of the share of each child to his or her descendants, share and share alike,” the widow and the children cannot convey a marketable title for they cannot cut off the contingent remainders devised to grandchildren.</p> <p>The widow takes no power of sale under a clause providing that after she has released her dower testator appoints her executrix and trustee “for the purposes of said trust, for her own sole use and benefit, during her natural life, * *' * and upon the date of her said decease * * * I do hereby further appoint my son * * * and my daughter * * s to be my executors and trustees * * * with full power to sell and dispose of the rest, residue and remainder of my said estate, * * i:" with full power to make good and sufficient deed, or deeds thereof.”</p> <p>The testator intended to have the property kept intact during the widow’s life, and then sold and divided.</p>

Appeal by the defendant, The Empire State Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 13th day of June, 1910, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, John S. Jones, 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 plaintiff, the Standard Fashion Company of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 26th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of May, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, The People of'the State of New York, from an order of the Court of General Sessions of the Peace in and for the county of New York, bearing date the 28th day of November, 1910, and entered in the office of the clerk of said court, arresting judgment.</p>

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 16th day of May, 1908.

Appeal by the plaintiffs, Edward Moyse and others, composing the firm, etc., and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of February, 1911.

Appeal by the plaintiff, James K. Clarke, 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 2d day of February, 1911, denying the plaintiff’s motion to vacate an order as resettled, setting aside a verdict and granting a new trial.

' Appeal by the plaintiff, Robert I. Curran, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 12th day of January, 1911, as resettled by an order entered on the 8th day of February, 1911, vacating an order for the examination of the defendant Oppenheimer before trial.

Appeal by the plaintiff, Stephen Farrelly, as ancillary receiver, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Yew York on the 19th day of August, 1909, upon the decision of the court rendered after a trial at the Yew York Trial Term, a jury having been ■waived, dismissing the complaint upon the merits.

<p>Tax — assessments of stock of banking association — irregularities — curative statute providing for reassessment — compliance by tax commissioners—interest on taxes paid.</p> <p>Where, after certiorari proceedings had been instituted to review and declare illegal certain assessments against the stock of shareholders in a national banking association, and to have the same refunded because of irregularities, a statule was passed providing for the completion of the original imperfect assessments, and, the statute having been complied with by the tax commissioners, the Court of Appeals held that the reassessments, which were for the same amount as the original assessments, were valid, and took effect from the date when the curative acts were performed, the relators should be awarded interest on the assessments paid from the date of payment to the time when valid reassessment was completed.</p>

Appeal by the defendant, Samuel Trachtenberg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 11th day of April, 1910, upon the verdict of a jury for $450, and also from an order entered in said clerk’s office on the 19th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Anton Peterson, 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 24th day of January, 1911,, vacating and setting aside an order for the examination of the defendant Alton before trial.

Appeal by the defendant, William H. Seaich, 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 June, 1910, denying the defendant’s motion for judgment on two counterclaims.

<p>Appeal by Hermann Kaaz, individually and as one of the administrators, etc., from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 11th day of January, 1910, directing the respondent to deposit the funds remaining in his hands with the chamberlain of the city of New York to await the further order of the court.</p>

<p>Attachment — moving papers, when sufficient — allegations as to damage — pleading— assumpsit.</p> <p>An attachment against a foreign corporation should not be vacated on the ground that there is no proof of the amount of damage where the complaint in an action for work, labor and services specifically stated that they were of a certain “ reasonable value and agreed price,” for the complaint makes a claim for liquidated damages.</p> <p>A plaintiff is not bound to declare specially upon an express contract, but may set out the count of indebitatus assumpsit.</p> <p>On a motion to vacate an attachment the complaint is not to be tested as on a demurrer, nor is a trial on the merits to be had.</p>

<p>Appeal by the defendants, William E. Morris and others, as commissioners of estimate and appraisal, etc., from an order of the Supreme Court, made at the New York Special Term and entered m the office of the clerk of the county of New York on the 19th day of December, 1910, granting the relator’s motion for a peremptory writ of mandarmis commanding the commissioners of estimate and appraisal to make and file their final report.</p> <p>This proceeding was commenced under chapter 21 of the Greater New York charter (Laws of 1901, chap. 466, as amd.) to acquire title to land for school purposes. On May 26, 1909, the board of education adopted a resolution selecting the site, and on June 25, 1909, the board of estimate and apportionment adopted a resolution approving said action and authorizing the institution of condemnation -proceedings. On September 29, 1909, commissioners of estimate and appraisal were appointed. On. June 8,1910, the hoard of education adopted a resolution rescinding the resolution of May 26, 1909, and on June 24,1910, the board of estimate and apportionment adopted a resolution rescinding its resolution of June 25, 1909.</p>

Appeal by the plaintiff, Harris Schwartz, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Hew York on the 1st day of March, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint as to such defendants.

Appeal by the claimant, Mary J. Cunningham, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of July, 1910, confirming in part a report of commissioners of estimate and appraisal in proceedings to acquire property for a school site, and sending the report back to new commissioners for a reappraisal of one damage parcel.

Appeal by the defendant, Henry z. Black, from a judgment of the Supreme Court in favor of the defendant Jules R. Gimbernat, entered in the office of the clerk of the county of Hew York on the 2d day of April, 1910, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendants, Evans B. Dick and others, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of said court on the 24th day of June, 1910, affirming a judgment of the Municipal Court of the city of Bew York in favor of the plaintiff entered upon the verdict of a jury.

Cross-appeals by the plaintiff, Julius G. Wetzlar, and the defendant, Catherine Stewart Wood, in the first above-entitled action, from parts of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Hew York on the 6th day of May, 1910, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, Charles Bulkley Iiubboll, as assignee, 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 24th of March, 1910, upon the decision of the court rendered after a trial at the New York Special Term

Appeal by the relator, the New York, Westchester and Boston Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of October, 1910, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by Laura Wheeler and another, as executors, etc., from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 24th day of January, 1911, affirming a prior order fixing a transfer tax.

Appeal by Emily Freund, as executrix, etc., and beneficiary, from an order of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 12th day of December, 1910, affirming a prior order fixing and assessing a transfer tax.

Motion by the plaintiff, the Continental Asphalt Paving Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court upon the pleadings on a trial at the New York Trial Term on the 7th day of November, 1910.

Appeal by the plaintiff, Frederick ¡B. Irvine, 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 20th day of January, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 4tli day of February, 1910, denying the plaintiff’s motion for a new trial…

Appeal by the defendant, Marie Julie Collins Carey, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Mew York on the 1st day of July, 1910, upon the decision of the court rendered after a trial at the Mew York Special Term.

Appeal by the defendant, the American Bonding Company'of Baltimore, 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 31st day of May, 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 27th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Hol-Tan Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York, on the 22d day of October, 1910, upon the report of a referee appointed to hear and determine the issues.

Appeal by the plaintiff, George A, Lathrop, Jr., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 6th day of February, 1907, upon the dismissal of the complaint by direction of the court after a trial at the ¡New York Trial Term.

Appeal by the defendant, the Weller Bottling Works, 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 defendant’s motion to change the place of trial from the county of New York to the county of Saratoga for the convenience of witnesses and to promote the ends of justice.

Appeal by the defendant, Thomas Simpson, 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 April, 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 19th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, George B. Herzig and others, from so much of an order of the Supreme Court, made at the Hew Fork Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of February, 1911, as denies in part the plaintiffs’ motion for a bill of particulars.

Appeal by the defendants, Lawson Purdy and others, as commissioners, 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 31st day of January, 1911, sustaining a writ of certiorari and reducing an assessment for the purposes of taxation against certain real property of the relator.

Appeal by the defendant, Post & McCord, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 16th day of December, 1909, upon the verdict of a jury for $2,770, 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 Fourteenth Street Store, 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 7th day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Adele Gneutal and another, from an interlocutory judgment of the Supreme .Court in favor of the plaintiffs and the defendant George Gueutal, entered in the office of the clerk of the county of Hew York on the 24th day of March, 1910, upon the decision of the court rendered after a trial at the New York Special Term in an action for a partition.</p>

Appeal by the defendant, Thompson Brothers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of July, 1910, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of June, 1910, denying the defendant’s motion for a new trial made upon' the minutes.

Appeal by the defendant, Henry S. Howland, from an order of the Appellate Term of the Supreme Court, entered in tire office of the clerk of the county of Hew York on the 24th day of May, 1910, affirming a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered upon a verdict rendered by a jury of six members.

<p>Death — right to possession of corpse — action to recover damages for unlawfully dissecting and retaining organs from a corpse.</p> <p>A mother as the nearest relative of her son is entitled to the possession of his corpse in the condition in which it was at the time of his death by accident, for the purpose of preserving and burying it. If one without her consent, or statutory authority, deprives her of possession, or dissects, or otherwise mutilates the corpse she has an action for damages measured by the injury to her feelings.</p> <p>Hence, she may maintain an action for damages against a coroner’s physician who, without direction from the coroner, performed an autopsy and refused to restore to the mother certain organs of the deceased which he removed from the body.</p> <p>Moreover, even if the autopsy had been authorized by the coroner, the physician was not justified in removing and retaining any organs of the decedent against the will of the person entitled to the corpse.</p> <p>Where the physician who performed the autopsy and retained the organs of the body makes no claim that he was authorized to perform the autopsy by any coroner, there is no presumption that he was so authorized on the theory that it was a misdemeanor for him to dissect the body without authority.</p>

Appeal by the defendant, Henry G-. Moore, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 1st day of April, 1910, upon the decision of the court rendered after a trial at the Hew York Special Term, and also from an order entered in said clerk’s office on the 14th day of April, 1910, modifying or affecting the said judgment and from the judgment as so modified or affected.

Appeal hy the defendant, The United States Transportation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of LTew York on the 22d day of April, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Joseph F. Keller, from a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kew York on the 5th day of July, 1910, upon the decision of the court rendered after a trial at the Kew York Special Term.

Appeal by the defendant, John Alley Parker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19th day of January, 1910, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, Cornelius J. Sullivan, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on tlie 5th day of October, 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 7th day of December 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Motion by the defendant, the People’s Surety Company of Bew York, to dismiss an appeal by the plaintiff.</p>

Appeal by the defendant, Herman Yahjen, Jr., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 5th day of October, 1910.

Appeal by the plaintiff, Mary Hoag, from an order of the County Court of Dutchess county, entered in the office of the clerk of said county on the 1st day of December, 1910, dismissing the complaint for unreasonable neglect to prosecute.

Re-argument of an appeal by the defendant, Margaret Fox, 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 6th day of April, 1910, and also from an order entered in said clerk’s office on the 2d day of May, 1910, resettling the former order.

Appeal by the plaintiff, William T. Tomlinson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 9th day of June, 1910, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.

<p>Blaster and servant—negligence — death, caused by implement which fell down elevator shaft—failure of fellow-servant to close door— failure to make rules.</p> <p>A master is not liable in a qommon-law action for the death of a servant who, while standing on the platform of an elevator, was killed by an iron roller which fell down the shaft owing to the failure of a fellow-servant completely to close the door of the elevator shaft on the floor above.</p> <p>Mor can the master be charged with negligence in failing to make rules and regulations respecting the closing of the elevator doors, for a failure to make rules is not proof of negligence unless it appear from the nature of the business that the master in the exercise of reasonable care should have foreseen the * necessity of such precaution.</p> <p>Thomas, J., dissented.</p>

<p>Decedent’s; estate — contract hy representative — when estate not bound.</p> <p>An executrix cannot in her representative capacity bind the estate by an executory contract made upon a new and independent consideration, even though the contract be for the benefit of the estate.</p>

Appeal by the defendant, the Hew York Transportation 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 10th day of June, 1910.

Appeal by the defendant, the Sundstrom & Stratton 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 Yth day of May, 1910, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 18th day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Brooklyn Trust Company, as executor, etc., 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 16th day of ¡November, 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 complaint.</p>

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

<p>Eminent domain — street widening, city of New York—damages to portion not taken — inability to use lands for tenement house purposes.</p> <p>A claimant in a street widening proceeding in the city of New York cannot attack an award made by commissioners on the theory that the law prevents the use oí his premises for tenement house purposes. This, because while the claimant is entitled to consequential damages to the portion of his lauds not taken, the commissioners may find that they are more valuable for business purposes than if used for tenement house purposes, and may also take into consideration the fact that the widening of the street by increasing the easements in light and air has made the property more desirable.</p>

<p>Eminent domain—Mew York city — land underwater — use for power station — award.</p> <p>Where land under water, being part of a tract used by an electric railroad company as the site for a power house, is taken by eminent domain the commissioners of estimate and assessment in awarding damages should consider the changes which the defendant will have to make to keep control of its plant, with rights of access thereto by water, and to generate its power upon its own premises to the end that the defendant may be placed in the same relative pecuniary position that it occupied before the proceeding was instituted.</p> <p>Evidence in such proceeding examined, and held, that the commissioners adopted an erroneous principle in making awards in that they overlooked among other things the damage which defendant would suffer by loss of access to its plant by water.</p> <p>The rights of defendants in such a proceeding cannot be changed by an order which was granted nearly a year after the proceeding was instituted and long after title to the land had vested in the city, and of which they were given no notice.</p>

<p>Pleading — complaint in action for goods sold — failure to state cause of action.</p> <p>A complaint which alleges that the plaintiff sold a mill to the S. Co., which paid a certain sum and agreed to return the mill and accessories to the plaintiff within ten days after the same should he set up, or in case of failure so to return the same to pay a further sum, and that the S. Co. transferred all its assets to the defendant, which, in consideration thereof, assumed to pay all . the liabilities of the S. Co , including that of the plaintiff, fails to state a cause of action in that it does not show that the S. Co. had set up the mill, or had unreasonably failed or neglected to do so, or that the defendant had failed to pay the obligation of the S. Co. to the plaintiff.</p>

<p>Process—subpoena—possibility that incriminating questions may be. asked.</p> <p>The Special Term has no power to set aside a subpoena requiring a witness to appear personally and testify upon the ground that, if he do so, he may be asked questions the answers to which may tend to incriminate him. This is true although the witness is under indictment for offenses connected with the matters under investigation.</p> <p>The constitutional privilege to refuse to answer on the ground that the answer may tend to incriminate the witness is simply an option to refuse to testify, not a prohibition of inquiry.</p>

■ Reargument of an appeal by the defendants, Joseph Prince and another, from a judgment of the County Court of Kings county, entered in the office of the cleric of said county on the 8th day of March, 1909, convicting the defendants of the crime of robbery in the first degree.

<p>Municipal corporations — negligence — failure to prevent excavation causing landslide — effect of verdict exonerating codefendant — contributory negligence.</p> <p>Where in an action against a private corporation and a village as joint tort feasors to recover for the death of a person caused by a landslide in an excavation which had been made by the private corporation, the only ground of liability of the village is predicated upon its failure to prevent or remedy the acts of its codefendant, a finding by the jury that the private corporation was not guilty of any negligent act which was the proximate cause of the death necessarily exonerates the village.</p> <p>Moreover, a decedent so killed was guilty of contributory negligence where, being in a place of safety and hearing that there had been a landslide in the excavation with which he was familiar, he went there wholly from curiosity and was killed when a second landslide occurred.</p> <p>Woodward and Rich, JJ., dissented in part.</p>

Appeal by the defendant, Chapter General of America, Knights of St. John and Malta, 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 lTth day of March, 1910, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.

Appeal by the defendant, Maurice Josephs, from a judgment of the County Court of Queens county, rendered on the 28tli day of October, 1910, convicting the defendant of the crime of grand larceny in the first degree, and also from an order denying the defendant’s motion for a new trial and in arrest of judgment, and also from an order, made on the 28th day of October, 1910, and entered in the office of the clerk of the county of Queens, denying his motion for a new trial on…

Appeal by the defendant, The Prudential Insurance Oompany of America, 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 October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18tli day of October, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Knights of Columbus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 10th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17tli day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Michael Bernstein 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 February, 1909, upon the dismissal of the complaint by direction of the court on a trial at the Kings County Trial Term.

Appeal by the defendant, Carrie G-. Back, as executrix, etc., 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 18th day of July, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing an accounting of partnership transactions between the plaintiff and Ezra W. Buck.

<p>Appeal by the defendant, The New England Navigation Company, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 20th day of July, 1910, setting aside a verdict in favor of the defendant and granting the plaintiff’s motion for a new trial.</p>

<p>Contract — municipal contract — excavation of material by third person without authority — when contractor cannot recover — substantial performance — burden of proof.</p> <p>Where a municipal contract for building retaining walls entitled the contractor to a certain sum per cubic yard for excavation and required him to fill in the excavated material behind the retaining wall when built, it is not entitled to recover for excavating material which was excavated and carried away from the premises by a third person acting without authority from the city or from the contractor. This, because while the contractor might adopt the act of the volunteer, it must adopt the act wholly, and hence failed in its obligation to deposit the excavated material behind the retaining wall.</p> <p>Under such circumstances a recovery against the city is not warranted, although the contract provided that, if the excavated material should exceed the amount necessary to fill in behind the retaining wall, the contractor should remove it at its own expense, if it failed to show that the material carried away by the third person was excess material within the meaning of the contract.</p> <p>A recovery cannot be had on the theory that no filling was required behind the wall at the particular point where the excavation was made by the third person where the contract called for filling behind the entire retaining wall wherever required.</p> <p>Where one claims the benefit of the doctrine of substantial performance of a building contract, the burden is upon him to show the value of the work which he failed to do, so that it can be deducted from the contract price, and hence, under the circumstances aforesaid, the contractor cannot recover as for substantial performance where it has failed to prove the amount of damage to'tlie city in purchasing material to replace that removed by the third person without authority.</p>

<p>Lien—mechanic’s lien — foreclosure — sale of premises — improper ' description in complaint — appeal — when purchaser not relieved of purchase.</p> <p>That the plaintiff in an action to foreclose a mechanic’s lien makes an error in pleading does not deprive the court of jurisdiction to foreclose subsequent liens of defendants which are properly pleaded and supported by evidence.</p> <p>Where the complaint and Us pendens in an action to foreclose a mechanic’s lien did not properly describe the premises but all of the defendants who interposed answers described them properly and, the complaint haying been dismissed for failure to prove the necessary facts, the action proceeded to judgment as between the defendant lienors, including one holding a mortgage on the premises, and subsequently the property was sold under the judgment to the mortgagee, .he cannot be relieved of his purchase upon the theory that as the complaint did not properly describe the property there is a defect in the title.</p> <p>Nor should he be relieved of the purchase because one of the defendants has appealed from the judgment, for that does not affect his rights.</p>

Appeal by Edward A. Matthews, a Deputy State Superintendent of Elections, 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 5th day of November, 1910, denying his motion to strike from the register of voters the name of George Bedwon.

Appeal by John Cartledge and others, copartners, etc., from an order of the Supreme Court, wade at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 2d day of April, 1910, confirming the report of commissioners of estimate and assessment herein.

Appeal by the defendant, the Commonwealth Fire Insurance Company of Ottumwa, Iowa, 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 28tli day of July, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered on the 8th day. of June, 1910, as resettled by an order bearing date the 1st day of August, 1910, and entered in said clerk’s office denying the…

Appeal by the defendant, Elizabeth Haskell, individually and as executrix, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 6th day of June, 1910, upon the verdict of a jury, also from an order entered in said clerk’s office on the 3d day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 31st…

. Appeal by the defendants; Max A. Fischer 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 Kings on the 9th day of ¡November, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendants’ demurrers to the second amended complaint.

Appeal by the relator, Lilly St. Clair, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of May, 1910, dismissing a writ of habeas corpus.

Appeal by the defendant, Julius Frank, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the, plain tiff, rendered on the Ith day of July, 1910, for the sum of twenty-five dollars.

Appeal by the defendant, Edward C. Decker, from a judgment of the County Court of Kings county, rendered on the 16th day of March, 1909, convicting the defendant of the crime of grand larceny in the second degree.

<p>Beal property—vendor and purchaser—action to recover earnest money — burden of proof — unmarketable title — adverse possession.</p> <p>In an action by one who had contracted to buy land to recover from the vendor the earnest money and the expenses of examining the title the burden is on the plaintiff to show that the title was unmarketable.</p> <p>Where upon the trial of such action the defendant’s counsel admitted that as to a certain part of the land to be sold there was no record title prior to a quitclaim deed thereof made in 1871, so that this deed became essential to the defendant’s title, and there is no proof that there was any record title in the one executing said deed, a judgment entered on a verdict for the plaintiff should be affirmed although, but for such concession, it would seem as if defendant’s title to the whole tract of land was complete and marketable under another chain of title.</p> <p>It is insufficient to establish title by adverse possession to rough Woodland to show that, although for part of the time since 1871 it had been surrounded by a fence, this had for a long time prior to 1906 been broken down on one side so that the tract was bounded only by a ditch on the west, in the absence of proof that the land had been cultivated in any way, or improved, or used for any purpose whatever.</p>

Reargument of an appeal by the defendant, The Locomobile Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county •of Queens on the 16th day of May, 3910, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 14th day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Master and servant—negligence—injury by blasting—proximate cause — selection of method to explode blast — inspection.</p> <p>Where it appears that past experience has shown that if a new stick of dynamite be placed in the same hole with a stick which has failed to explode, the explosion of the new charge will in all instances explode the other charge, a . miner who was injured by an unexpected explosion after the aforesaid method had been used to set off a charge which had failed to explode cannot recover on the theory that it was negligent to employ such method in that it was safer to drill a new hole and explode dynamite therein in close proximity to the unexploded charge, thus avoiding the danger of removing the tamping from the first hole. This, because such method is safer solely because of the danger in removing the tamping over the unexploded stick of dynamite. When the removal of the tamping had been successfully accomplished and the new stick of dynamite had been exploded, the use of such method was not the proximate cause of the injury.</p> <p>Under such circumstances the plaintiff cannot recover because he was directed to shovel away the loose material before the place was inspected, as there was no reason to anticipate danger.</p> <p>Moreover, there was a sufficient inspection where the person in charge of the blasting went to the hole after the explosion, looked at it and stated that “it was a good shot,” and there was nothing to indicate the contrary.</p>

Appeal by the defendant, the Weber Piano 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 9tli day of June, 1910, permitting the plaintiff to prosecute the action as a poor person.

Appeal by the plaintiff, Walter Hurst, from two judgments of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 11th day of April, 1908.

Cross-appeals by the relator, The Queens County Water Company, and by the State Board of Tax Commissioners and FiuuyThe City of New York, intervenor, from parts 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 27th day of June, 1910. (The opinion of the court below is reported' in 67 Misc. Rep. 490.) A realignment was ordered on account of changes in the personnel of the court.

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of June, 1910, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 18th day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal in each of the above-entitled actions by the plaintiff, the Genesee Valley Milk Products Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 18th day of October, 1910, upon the decision of the court rendered after a trial at the Monroe Trial Term, a jury having been waived, dismissing the complaint upon the merits in each case.

Appeal by the defendants, the International Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of July, 1910, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of July, 1910, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Utica, 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 19th day of May, 1910, upon the verdict of a jury for $500, 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 defendant, the Pennsylvania Railroad Company, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 17th day of August, 1910, setting aside the verdict of a jury in favor of the defendant and directing a new trial.</p>

Appeal by the defendant, Andrew D. Morgan, 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 20th day of July, 1910, upon the decision of the court rendered after a trial at the Oneida Special Term.

<p>Mortgage — suit to set aside mortgage — principal and agent — conversion of moneys by agent.</p> <p>Suit to cancel and annul a bond and mortgage. Evidence examined, and held, that an attorney at law who absconded with the proceeds of a mortgage and other moneys advanced by the plaintiff was acting as- her agent, as was also the person who obtained - the money on the mortgage, so that she was not entitled to the relief sought.</p>

<p>Insurance — reformation of policy — fraud or mistake — policy issued to former owner — when agent acts for insured — evidence not justifying reformation.</p> <p>Before a written contract will be reformed the proof must convincingly establish that there has been a mutual mistake, or a mistake by one party and fraud by the other.</p> <p>' As an applicant for fire insurance on buildings has the knowledge of the title and of the other facts essential to give validity to the contract, on him, primarily, rests the responsibility of imparting that information to the insurer. Where the president of a corporation was accustomed to advise an insurance broker when the corporation wished insurance on its property, and the amount desired, but did not mention the company from which the insurance was to be procured, that being left to the agent’s discretion, the broker in obtaining insurance for the corporation acted as its agent and not as the agent of the insurer.</p> <p>Property had been formerly held by one L. who took out insurance thereon payable to two mortgagees, of whom plaintiff was one. Subsequently, one of the mortgages was foreclosed and plaintiff bought in the property. At the expiration of the first policy plaintiff’s president requested the insurance broker who acted for it to renew the same without, however, disclosing the change of title to the premises. The policy was accordingly twice renewed, being each time issued to L. The mortgagee clause was, however, erased. About eight months after the foreclosure sale plaintiff’s president requested the broker ‘ ‘ to put another thousand dollars on the Lorenz property.” This was done without any suggestion to the insurer that plaintiff was the owner of the property and the policy was issued to L. as before, the mortgagee clause being again erased. The agent examined the policy and delivered it to plaintiff, by whom it was retained. Later the building insured was destroyed by fire.</p> <p>Held, on reversing a judgment in plaintiff’s favor in a suit to reform the last policy and to recover on it as reformed, that no fraud or mutual mistake was shown.</p> <p>Williams, J., dissented.</p>

<p>Appeal — City Court of Syracuse — judgment rendered on verdict — appeal from judgment only —power of County Court to review facts.</p> <p>Upon, an appeal from a judgment only, of the Municipal Court of the city of Syracuse, rendered upon, the verdict of a jury, the County Court has no power to grant a new trial on the ground that the verdict was against the weight of evidence.</p> <p>An appeal from the judgment alone of said court when rendered on the verdict of a jury can he “ taken upon questions of law only ” as provided hy section 33 of the Municipal Court Act of the city of Syracuse. The facts cannot he reviewed.</p>

<p>Appeal by the plaintiff, George M. Newton, as administrator, etc., from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Erie on the 12tli day of August, 1910, upon the decision of.the court rendered after a trial at the Erie Special Term, dismissing the the complaint upon the merits as to said defendants.</p>

<p>Contract — agreement to purchase stock on notice — condition precedent .— sufficiency of notice —joint liability.</p> <p>Where two officers of a corporation agreed in writing with a third party in consideration of his buying stock of the corporation and entering its employment, “upon ninety (90) days notice, given in writing, any time between January 1st, 1907, and January 1st, 1909,” to purchase from him “sixty (60) shares” of the company’s stock at §200 per share, a notice given by the employee to each of the officers on December 31, 1908, in which he requested each of them to purchase “the thirty shares” of stock standing in his name “as per agreement,” does not comply with the contract.</p> <p>Service of the ninety days’ notice was a condition precedent to the maintenance of an action for breach of the contract to buy the stock, and should have been strictly complied with.</p> <p>It seems, that as the officers became jointly liable to purchase the stock in case plaintiff served the notice, service of a proper notice, as called for by the contract, on one of them would have been sufficient.</p> <p>The fact that each defendant held an unindorsed certificate for thirty shares of plaintiff's stock as security for his promissory notes did not relieve him from giving the notice prescribed by the contract, nor did it sever the liability of the defendants under the contract.</p> <p>McLennan, P. J., and Williams, J., dissented.</p>

Appeal by the plaintiff, Rufus M. Choate, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 12th day of July, 1910, upon the verdict of a jury rendered by direction of the court.

Appeal by Julius M; Mayer, as Attorney-General of the State of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 4th day of January, 1908, upon the verdict of a jury, also from an order entered in said clerk’s office on the 19th day of December, 1907, amending and correcting the verdict and minutes of trial, and also from two orders entered on the same day denying the…

Appeal by Winifred J. Blaine, from a decree of the Surrogate’s Court of the county of Seneca, entered in the Surrogate’s Court on the 19th day of February, 1910, refusing to admit to probate a certain paper purporting to be the last will and testament of W. Frank Blaine, deceased.

Appeal by Gertrude M. Jones, as sole executrix, etc., from parts of a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 23d day of February, 1910, judicially settling the accounts oíj W. Martin Jones, deceased, trustee under the will of Henry Powis, deceased.

<p>Appeal by the defendant, the City of Dunkirk, from a judgment * of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 18th day of August, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, The Supreme Ruling of the Fraternal Mystic Circle, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 29th day of August, 1910, upon the report of a referee, dismissing the complaint upon the merits.

Appeal by the defendant, Charles Taylor, 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 7th day of June, 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 6tlr day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes. ,

Appeal by the plaintiff, the General Fireproof Construction Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 29th day of June, 1910, pursuant' to an order made at the Erie Special Term on the 23d day of June, 1910, reversing a judgment of the City Court of Buffalo, and also from the said order upon which the judgment appealed from was entered.

Appeal by the defendants, the International Railway Company and another, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 10th day of March, 1910, upon the verdict of a jury foi $1,028.50, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the relator, Warner L. Conley, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 5th day of August, 1910, denying the relator’s motion for a peremptory writ of mandamus' directing the respondents to reinstate the relator in office.

Appeal by the plaintiff, the Western Hew York and Pennsylvania Traction Company, from an order of the Supreme Court, made at the Allegany Special Term and entered in the office of the clerk of the county of Cattaraugus on the 26th day of July, 1910, vacating a temporary injunction theretofore granted herein, and also from an order entered in said clerk’s office on the 5tli day of August, 1910, denying the plaintiffs motion to stay proceedings upon the former order.

<p>Municipal corporations — fall on icy sidewalk — new trial — newly-discovered evidence — injuries to female — existence of physical defect before trial.</p> <p>Ia order that a pedestrian who was injured by a fall upon an icy sidewalk may recover from the municipality, it must appear that the fall was caused not merely by the presence of ice and a slippery condition, but by hummocks and ridges of ice and snow, which had accumulated and had been allowed to remain for a considerable time when the weather had been such as to permit them to be removed.</p> <p>Where in an action by a woman to recover for injuries so caused there was a serious conflict of evidence as to whether a physical condition peculiar to her sex was caused by the fall or had existed prior thereto, a judgment entered on a verdict of over §10,000 will be set aside and a new trial granted on a showing of newly-discovered evidence tending to prove that the plaintiff’s condition existed before the accident.</p> <p>Spring and Kruse, JJ., dissented.</p>

<p>County — contract to erect hospital — principal and agent — committee appointed by supervisors —ratification.</p> <p>Certiorari to review the act of a board of supervisors disallowing claims for a balance due under a contract for the construction of a county hospital and for extra work. The board of supervisors appointed a committee to inquire into the necessity for the hospital and thereafter adopted the report of the committee, asking that it he authorized to construct the building. The committee entered into a written contract with the relators for the construction of the building, and thereafter the plans were changed increasing the contract price by reason of requirements made by the State Board of Charities. Part payments were made to the relators and also payments to other contractors in connection with the erection of the building. When the hospital was completed it was accepted by the architects, who certified that the relators had fully performed their contract. The board was at all times aware that the work was going on, inspected it in a body and approved the action of the committee, etc. The payment of the balance due was rejected on the ground that the committee appointed by the board had no authority to let the • contract. On all the evidence,</p> <p>Held, that irrespective of any lack of power on the part of the committee there had been a complete ratification of its action by the board of supervisors, so that the relators were entitled to an audit of their claims.</p>

<p>Intoxicating liquors — opening'door to saloon on Sunday — pleading — indictment, when sufficient — arrest of judgment.</p> <p>An indictment charging a violation of subdivision c of section 30 of the Liquor Tax Law, which prohibits any person from opening or leaving unlocked the entrance to a saloon during the hours when the sale of liquor is forbidden by law, which states that the defendant caused the entrance doors of a saloon to he open and unlocked on Sunday, “and at the place aforesaid were certain * * * liquors which were then and there sold and kept on sale prior to and on said day by said defendant,” and another person named, sufficiently sets forth that the defendant had a pecuniary interest in the business so as to charge him as a holder of the liquor tax certificate and make the offense indictable. Hence, the County Court has jurisdiction to try the defendant under such indictment.</p> <p>A motion in arrest of judgment can be made only upon the ground that the court did not have jurisdiction of the subject of the indictment, or because the facts stated do not constitute a crime;</p>

Appeal by the plaintiff, Howard Iron Works, from an interlocutory judgment of the Supreme Court in favor of the defendant Irving E. Waters, entered in the office of the clerk of the county of Erie on the 29th day of August, 1910, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the said defendant’s demurrer to the complaint.

<p>Contract — agreement to furnish counterweights for bridge — recovery measured by weight furnished — change in plan — agreement to pay additional rate for extra work — measure of recovery.</p> <p>Where a contract by which the plaintiff agreed to furnish counterweights for a lift bridge provided that the number of pounds stated in the specifications was a mere estimate for the assistance of bidders and that counterweights must bo furnished to balance the moving span in all positions, the contractor is entitled to recover for the weight of the counterweights necessary to the successful operation of the bridge as constructed whether that weight be more or less than that estimated.</p> <p>But under such agreement the contractor was only required to furnish counterweights sufficient to balance the span if built according to the original plan, and where the plan was changed during construction so that additional net weight in the counterpoise was required, and a supplementary agreement was made allowing the contractor a higher compensation per pound for the extra weight, he is entitled to payment at the advanced rate for the net amount of additional weight furnished. "</p> <p>But where, owing to the change in plans, the weight of certain members of the bridge was reduced while the weight of other members was increased, the contractor is only entitled to recover at the advanced rate agreed upon for the net excess in weight. He is not entitled to figure the excess by treating the reduction in weight of certain members of the bridge as a cancellation of the contract pro tanto and treating all the weight necessary to counterbalance members whose weight was increased as extra material furnished.</p>

<p>Pleading — suit to enjoin interference with access to wharf—counterclaim asking injunction and damage for trespass.</p> <p>In a suit in equity to restrain the defendant, an abutting landowner, from interfering with the plaintiff’s right of access to a wharf to which title is claimed by adverse user, he may, as a counterclaim, allege ownership of the wharf, ask that the plaintiff be enjoined from entering thereon and claim damages on the theory that the plaintiif’s former entries were trespasses.</p> <p>As a general rule one tort cannot be pleaded as a counterclaim to an action on another where there is no necessary or legal connection between them.</p> <p>But the Code of Civil Procedure intended to secure adjustment in a single action of all controversies between the parties concerning the same subject-matter, and to that end it should be liberally construed.</p> <p>In such action a barb wire fence by which the defendant prevented the plaintiff’s entry cannot be deemed the subject-matter of the action rather than the respective rights of the parties in the wharf.</p>

Appeal by the plaintiff, Johanna Brennan, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 4tli 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 Steuben Trial Term, and also from an order entered on the same day directing the dismissal of the complaint.

<p>Will — life estate with, contingent remainders over—when contingent remainder vests at testator’s death —when life estate does not fail</p> <p>. because of invalidity of remainders.</p> <p>Where a will directed executors to invest funds and to pay the income therefrom semi-annually to the defendant’s daughter M., but in case she should die before the testator, or before the death of her husband, the executors to pay the money to the testator’s wife and two other daughters, share and share alike, subject to certain restrictions imposed in subsequent portions of tiie will, with the further direction that should the daughter M. survive" her husband the executors were to pay the money to her absolutely and without restriction on the death of her husband, the widow on the death of the testator took a vested contingent remainder, which on her death passed as part of her estate, the vesting of the widow’s interest not being postponed until the contingency by which the ultimate destination of the fund was to he determined. Hence, where the widow died before M. the two other daughters cannot claim the whole fund on the theory that they were the only surviving contingent remainder-men when the remainders vested.</p> <p>Where by subsequent portions of the will the two sisters of M., being members of religious communities, were given a life interest in the income of funds set apart, with a proviso that on their death the principal and accrued interest should go to the religious orders to which they belonged, any invalidity existing in the disposition of the remainders owing to a possible inability of the religious orders to take did not affect the validity of the provision for the sisters during their lifetime. The legal portion of the bequests is separable from the illegal portion thereof, and the former may be sustained although the latter may fail. Hence, the court will direct the funds to be held and managed by the trustees for the life of the several beneficiaries, leaving the decision as to tlie ultimate disposition of the funds to be determined on the expiration of the life estates.</p>

Motion by the petitioner, Charles H. Tapper, for an order permitting him to be heard herein and for an order setting aside the return to the writ of mandamus theretofore granted and the returns tiled by the defendants as inspectors.

<p>Appeal by the plaintiff, John Brennan, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 17th day of February, 1910, affirming a judgment of the City Court of Albany dismissing the complaint.</p>

<p>Appeal by the defendant, The City of Troy, from a final order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 16th day of November, 1910, declaring the relator’s special franchise assessment unauthorized and void, and directing that it be stricken from the assessment roll of the city of Troy and canceled.</p> <p>In 1907 the State Board of Tax Commissioners assessed the special franchise of the relator in the city of Troy for the year 1907 at $640,500, and certified the same to the proper officers of the city of Troy. The relator appeared before the State Board and filed objections, to wit: That the property was overvalued and was unequally assessed. The State Board overruled the objections and certified the assessment as originally made to the city clerk of the city of Troy, who in turn delivered the same to the local assessors of the city of Troy. The local assessors thereupon entered in the assessment rolls of the third ward of the city of Troyan assessment of the relator to the amount of $600,000, and in the seventeenth ward of the city of Troy an assessment to the amount of $40,500. The relator made no complaint to the local assessors and did not appear before the board.</p> <p>In 1900 the village of Lansingburg was annexed to the city of Troy and became a part thereof by chapter 665 of the Laws of 1900. By the act enlarging the city to include the village of Lansingburg it was provided that the territory within the old village of Lansingburg thus annexed to the city of Troy should constitute a separate union free school district. So that within the enlarged city there were two school districts, one comprising the territory of the old city of Troy and the other the territory of the old village of Lansingburg. The third ward is a part of the old city of Troy. The seventeenth ward is a part of the old village of Lansingburg. Thereafter certiorari proceedings were commenced against the State Board of Tax Commissioners to review the said assessment for inequality, and also to declare the assessment illegal because of this apportionment by the assessors of the enlarged city of Troy between the different school districts in said city. The referee to whom the matter was referred held against the relator upon the question of inequality, and also held that the whole assessment was void because the apportionment between the different school districts should have been made by the State Board of Tax Commissioners and not by the assessors of the city of Troy. This conclusion of the referee was affirmed by the Special Term, which declared the assessment void, and directed that it be canceled, and from the final order entered upon such decision this appeal is taken by the city of Troy, which has been duly made a party to the proceeding by order of the court.</p>

Appeal by the defendant, Abram H. Wiggins, as supervisor, etc., from a final order of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 2d day of September, 1910, granting a peremptory writ of mandamus compelling the supervisor to issue town bonds of the town of Canton under section 16 of the Drainage Law (Consol.

<p>Appeal by tlie defendants, Wilber Miller and another, from a judgment of the Supreme Court in favor of tlie plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Columbia on the 2Sth day of August, 1909, upon the report of a referee appointed to hear and determine.</p>

Cebtioeabi issued out of the Supreme Court and attested on the 8th day of December, 1910, directed to the Public Service Commission of the State of New York, Second District, commanding said commissioners to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had in connection with thecomplaint of -Francis P. Lithgow against the Cohoes Eailway Company relative to passenger fare between the cities of Albany and Bensselaer.

Appeal by the defendant, Llewellyn W. Boyce, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 3d day of June, 1910, upon the report of a referee awarding to the plaintiff possession of certain real estate and damages.

Appeal by the defendant, the Boomer & Boschert Press Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 37th day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of March, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Cebtiobaei issued out of the Supreme Court and attested on the 20th day of September, 1910, directed to Frank W. Stevens and others, as commissioners constituting the Public Service Commission of the State of híew York for the Second District, and said Public Service Commission, commanding them to return to the office of the clerk of the county of Albany all and singular their proceedings had in relation to their determination upon the application of the Binghamton Light,…

Appeal by the plaintiff, George A. March, 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 21st day of October, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Madison Trial Term.

Appeal by the defendants, Martha B. Griswold and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 23d day of September, 1910, upon the decision of the court rendered after a trial at the Washington Special Term.

<p>Cross-appeals by the relator, the ISTew York, Ontario and Western Railway Company, and the defendants, Augustus B. Shaw, and others, as assessors, etc., from a judgment of the Supreme Court, entered in the office of the clerk of the county of Delaware on the 18th day of October, 1910, upon the decision of the court, rendered after a trial at the Chenango Special Term, modifying and confirming as modified the report of a referee.</p> <p>This is a certiorari proceeding taken by the relator to review its assessment on four and eight hundred and twenty-five one-thousandths miles of its Delhi branch in the town of Hamden, which judgment was entered in Delaware county clerk’s office October 18, 1910. The original assessment was - $60,448, which the assessors determined was its fair valuation equalized with other property. It does not otherwise appear upon what basis they arrived at this amount. The referee and the Special Term properly determined that other property in the town was assessed only fifty-four and seventy-four one-hundredths per cent of actual value. The referee determined that the reproduction cost was the proper basis of valuation, which he fixed at $98,500, with an equalized value of $53,918.90. The Special Term, in the judgment appealed from, adopted the reproduction cost as the proper basis, which it fixed at $95,000, with an equalized value of .$52,003.</p>

<p>Tax — sufficiency of complaint on grievance day — certiorari to review assessment. .</p> <p>A complaint filed with tax assessors on grievance day, based upon the inequality of assessment, need not specify instances of inequality in order to become the basis of a petition for certiorari to review the assessment.</p> <p>Thus, such complaint is sufficient where it states that the assessment was erroneous for overvaluation and inequality; that the proposed assessment against the property of the claimant is erroneous because made at an overvaluation, and is unequal because made at a higher proportionate valuation than any other property in the town.</p>

<p>Appeal by the defendant, Alfred T. Mallery, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 22d day of September, 1910, upon the decision of the court, rendered after a trial at the Saratoga Special Term, overruling the defendant’s demurrer to the complaint.</p>

<p>Appeal by Mary E. Arthur from a decree of the Surrogate’s Court of the county of Essex, entered in said Surrogate’s Court on the 8th day of September, 1910, adjudging that an instrument dated July 28, 1908, and purporting to be the last will and testament of Alexander H. Weed, deceased, was properly executed; that the deceased at the time of executing the same was in all respects competent to make a will and not under any restraint or undue influence, and admitting the will to probate.</p> <p>Alexander H. Weed died in the town of Ticonderoga, county of-Essex, at the age of sixty-five years and ten months. lie left an estate worth about $15,000. His only heirs and next of kin were his brother, Albert Weed, a sister, Mary E. Arthur, and the children and grandchildren of deceased half-brothers and half-sisters. His wife died July 16, 1908, twelve days before the execution of the will. He bequeathed $1,000 to a niece, J. Dell Arthur; $500 to a nephew, Joseph H. Arthur, gave all the rest of his property, which consisted of real and personal, to Frank B. Wickes, a brother of his deceased wife, and appointed him the executor of the will.</p>

Appeal by the defendant, Cornelius 0. Fellowes, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Saratoga on the 19th day of December, 1910, denying the defendant’s motion to vacate and set aside an order of publication.

<p>Appeal by the defendant, Peter J. Callan, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 13th day of December, 1910, denying the defendant’s motion to change the place of trial of the action.</p>

Appeal by the defendant, Henry A. Howard, from a judgment of the County Court of Warren county in favor of the plaintiff, entered in the office of the clerk of said county on the 19th day of February, 1910, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the United Box Board and Paper Company, 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 22d day of August, 1910, upon the report of a referee.

Appeal by Charles David Kennedy and others, the executors, etc., and others, from an order of the Surrogate’s Court of the county of Ulster, entered in said Surrogate’s Court on the 1st day of August, 1910, resettling an order of July 11, 1910, and also from the original and resettled orders, which in substance refuse to dismiss the petition for the removal of the executors and for an accounting, and require the executors to file their account and appear before the surrogate…

Appeal by the defendant, Patrick Cronin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 13th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

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

<p>Insurance — indemnity of employer against liability for injuries to employee—policy construed — when insurer prosecuting appeal not liable for interest accruing upon judgment.</p> <p>Where a policy indemnifying an employer against loss by reason of liability for . personal injuries sustained by employees limits the insurer’s liability to a stated sum “in addition to all costs of litigation,” but provides that no action shall lie against the insurer for any loss under the policy unless it be brought by the assured for loss actually sustained and paid in- money by him after the trial of the issue, the insurer is not liable for interest accruing on a judgment for personal injuries received by an employee in excess of the sum stated in the policy, although such interest accrued pending an .unsuccessful appeal which the insurer prosecuted under a clause of the policy giving to it an absolute right to determine whether an appeal shall be taken from any order or judgment in a suit against the insured. This because the interest accruing on the judgment pending the appeal is not part of the cost of defense of the action which the insurer, agreed to pay, and because, under the terms of the policy, a payment of the judgment by the insured was a condition precedent to any recovery against the insurer and, in the event of such payment, the liability of the insurer was expressly limited to the amount stated. Kellogg, J., dissented, with opinion.</p>

Appeal by Joseph J. Cuneo from an order of the County Court of Ulster county, entered in the office of the clerk of said county on the 21st day of September, 1910, overruling special objections and also from an order of said court, entered in said clerk’s office on the 1st day of September, 1910, enjoining the appellant from, trafficking in liquors in the town of Olive, Ulster county, N. Y.

Appeal by the plain tiff, John Y. D. H. Bradt, Jr., as executor, etc., from a judgment of the Supreme Court in favor of the defendant, John H. Bradt, entered in the office of the clerk of the county of Albany on the SOth day of April, 1910, upon the decision of the court rendered after a trial at the Albany Trial Term, the jury having been discharged.

<p>Appeal by the plaintiff, Max Feinberg, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 2d day of May, 1910, upon the report of a referee dismissing the complaint upon the merits.</p>

Appeal by the plaintiffs, Frederick S. Flower and others, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 7th day of February, 1910, dismissing the plaintiffs’ claim for want of jurisdiction. Section 315 of chapter 241 of the Laws of 1905 imposed a tax of two cents on each $100 of face value or fraction thereof of stock sold.

Appeal by the defendants, Milo L. Cleveland 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 St. Lawrence on the 23d day of December, 1908, upon the decision of the court rendered after a trial at the St. Lawrence Trial Term before the court without a jury.

<p>Appeal by the defendant, the Hudson Valley Railway Company, from a judgment of the' County Court of Washington county iij favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of March, 1910, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The Town of Schaghticoke, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bensselaer on the 22d day of March, 1909, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 2d day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, The Mills Power Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 28th day of October, 1910, upon the decision of the court rendered at the commencement of the trial at the Fulton Trial Term, with notice of an intention to bring up for review an interlocutory judgment in favor of the defendant entered on the 7th day of October 1910, overruling the plaintiff’s…

Appeal by the defendant, Charles B. Gibson, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Washington on the 14th day of November, 1910, denying the defendant’s motion for the dismissal of the complaint upon the pleadings.

<p>Cross-appeals from parts of an order, entered in the New York county clerk’s office on the SSd day of January, 1911, denying a motion to vacate an order for examination before trial of the individual defendant, and granting said motion as to the defendant corporation.</p>

<p>Master and servant — Employers’ Liability Act — negligence — defect in “way” — injury by elevator.</p>

<p>Appeal from an order, entered in the Mew York county clerk’s office on the 80th day of January, 1911, denying a motion for an injunction.</p>

<p>Surrogate — trust — accounting.</p>

<p>Attorney and client — disbarment — retention of money.</p>

<p>Appeal from parts of an order, entered in the New York county clerk’s office on the 13th day of December, 1910, granting a motion to require the defendant to furnish a bill of particulars.</p>

<p>Motion to confirm the report of a referee.</p>

<p>Appeal from a judgment, entered in the New York county clerk’s office on the 22d day of June, 1910, upon the verdict of a jury and from an order entered on the 24th day of June, 1910, denying a motion for a new trial.</p>

<p> Bonds—convertible bonds—interest. </p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 7th day of October, 1910, as resettled by an order entered on the 21st day of November, 1910, adjudging the defendant guilty of contempt of court for failure to pay alimony and counsel fee.</p>

<p>Appeal from a judgment, entered on the 1st day of July, 1910, on a verdict, and from an order entered on the 30th day of June, 1910, denying a motion for a new trial.</p>

<p>Husband and wife — alimony.</p>

<p> Liquor Tax Law —seizure of liquor—appeal. </p>

Appeal by intervenors from so much of an order, entered on the 16th day of February, 1911, as imposes conditions for permitting them to become parties defendant; and by plaintiff from so much of said order as makes said intervenors parties defendant.

<p>Appeal from an order, entered on the 4th day of January, 1911, denying the defendant’s motion to open default.</p>

<p>Appeal from an order entered on the 1st day of March, 1911, opening the default of the Presbyterian Hospital.</p>

<p>Negligence — injury tó pedestrian by truch driver.</p>

<p>Will — menial capacity of testatrix — trial by jury.</p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the clerk’s office of Queens county on June 9, 1910, and from an order entered in said office on July 12, 1910, denying her motion fbr a new trial.

<p>Appeal from an order, entered in the office of the clerk of the county of Orange on the 9th day of November, 1910, denying the defendant’s motion for a bill of particulars. * .</p>

Appeal b)r the defendant, George E. Clay, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of June, 1910, upon the verdict of a jury, and also from an order bearing date the 1st day of July, 1910, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 17th day of June, 1910, to review the action of Joseph Sullivan, commissioner of public works of the borough of Queens, acting as president of said borough, in removing relator from his janitorship of the town hall, Jamaica.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, entered in the office of the clerk of that court on the 28th day of June, 1910, in favor of the plaintiff for the sum of §185.72 damages and $19.40 costs.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York in favor of the defendants, entered in the office of the clerk of that court on the 16th day of August, 1910, and from an order entered in said office on the 22d clay of August, 1910, denying the plaintiff’s motion for a new trial.

<p>Tax — action to recover — municipal corporation — counterclaims.</p>

<p>Decedent’s estate — claim of partner — continuance of partnership — accounting.</p>

Judgment and order affirmed, with costs. All concurred, except Kruse, J., who dissented in a memorandum; Spring, J., not sitting.

<p>Eminent domain — water supply, New York city — compensation of commissioners — necessary expenses — automobile hire.</p>

Appeal by the defendant West, through his committee, Delaney, from part of an order, entered in the Saratoga county clerk’s office on the 9th day of May, 1910, confirming the report of a referee.