Volume 144 — New York Appellate Division Reports

<p>Petition by the New York County Lawyers’ Association to disbar the respondent.</p>

Appeal by the plaintiff, Harry H. Miller, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of.

Appeal by the plaintiff, Sidney Wallach, individually and as executor'and trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered. in the office of the clerk of the county of New York on the 27th day of December, 1910, upon the decision of the court rendered after a trial at the New York Special Term. ...

<p>Appeal by The People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of June, 1909, sustaining three separate .writs of habeas corpus issued on behalf of the respective relators.</p>

Appeal by the plaintiff, Isaac Burr, 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 18th day of May, 1910, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 18th day of May, 1910, and the 20th day of July, 1910, respectively, denying the plaintiff’s motions for a new trial.

■Appeal by the defendants, Samuel Klar and another, doing business ás Klar 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 15th day of April, 1910, upon the decision of the court rendered after a trial at the New York Special Term. .

Appeal by the defendant, Margaret S. E. Cameron, 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 22d day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the llth day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, H. Koehler & Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on. the 28th day of February, 1911, denying a motion to vacate an order for the examination of the defendant before trial.

Appeal by the defendant, The New York Central and. Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered -in the office of the clerk of the county of New York on the 15th day of August, 1910, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 9th day of August, 1910, denying the defendant’s motion for a new trial made upon the minutes and granting the plaintiff an extra1 allowance.

<p>Venue — action for breach of contract — change of place of trial.</p> <p>The defendant in an action for a breach of contract is entitled to have the venue chahged to the county where the. contract was made, was to be performed, where the breach took place and where the defendant and most of the necessary witnesses reside.</p> <p>Transitory actions should be tried in the county where the transactions involved took place unless a large preponderance of the witnesses live in another county. ' .</p>

<p>Appeal "by the defendant, Chandlee H. Hickok, from an ■ interlocutory judgment of the Supreme Court in favor of the plaintiffs,- entered in the office of the clerk of the county of New York on the 19th day of December, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiffs’ demurrer to a separate defense set forth in the defendant’s answer.</p>

Appeal by the defendants, Christopher Haber and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of January, 1911, denying the defendants’ motion to change the place of trial.

<p>Appeal .by the defendants, Christopher Haber and another, from an order of the'Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of January, 1911, denying the defendants’ motion to change the place of trial.</p>

Appeals by the plaintiff, Edith Coventry, and the defendant, Henry Thomas Coventry, 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 New York on the 10th day of October, 1910, upon the report of a referee, dismissing the complaint7 upon the merits. . '

Appeal by the defendant, The Lithograph and Manufacturing Company of the United States, from an order of the' Supreme Court, made at the' New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of March, 1911, staying an action in the Municipal Court of the city of New York until the final determination of this action.

Appeal by the defendant, the Eagle Insurance Company, from an order of the Supreme Court, made at the Mew York Special Term, and' entered in the office of the clerk of the| county of Mew York on the 6th day of March, 1911, granting an injunction pendente lite.

Appeal by the defendant, Jacob L. Greatsinger; from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of January, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the amended complaint.

<p>Appeal by the defendants, Russell Murray and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of January, 1911, upon the decision of the court, rendered after a trial" at the New York Special-Term, overruling the said defendants’ demurrer to the amended complaint.</p>

Appeal by. the defendants, The Medical Society of the County of New York and others, 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 lJth day of February, 1911, continuing an injunction and restraining the defendants pendente lite from trying the plaintiff on charges.

Appeal by the plaintiff, Thomas Zeikus, as administrator, 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 20th day of January, 1911, denying the plaintiff’s motion for judgment on the pleadings.

Appeal by the defendant, The Jennie Clarkson Home for Children, and the claimants, Lillie McGovern and another, from an ordei of the Supreme Court, made at the New York Sp.'.-¡l Term and' entered in the office of' the clerk of the county of New York on the 1st day of November, 1910, confirming the report of a referee and directing a distribution of surplus moneys realized on a foreclosure sale. '

Appeal by the Comptroller of the State- of New York from an order of the Surrogate’s Court of the; county of New York,, entered in said Surrogate’s Court on the 23d day of November, 1905, declaring exempt from transfer tax a legacy bequeathed to the respondent.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1910, upon the verdict of a jury for $3,000, 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 American Baptist Foreign Mission Society (formerly the American Baptist Missionary Union) from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 16th day of February, 1911, affirming an order of said Surrogate’s Court entered on the 4th day of October, 1910, assessing, a transfer tax, and also from the order entered on the 4th day of October, 1910.

Appeal by Margaret Bowsky, as administratrix, etc., of Max Bowsky, deceased, 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 22d day of March, 1911, denying the .appellant’s motion for an order directing the .comptroller of the city of New Y6rk to deliver a warrant made in payment of an award.

<p>Insurance — pleading—complaint stating action on policy rather than on agreement — adjusting loss — evidence — when adjustment conclusive—fraud. j .</p> <p>Where a complaint in a suitj to recover on a policy of fire insurance sets •out the policy, alleges performance of conditions on the part of the plain- , tiff except as waived by thfe defendant and an adjustment of the loss pursuant to the terms of! the policy by adjusters appointed by the respective parties, the acticjn must be deemed to be one on the policy rather than on the adjustment.</p> <p>Where a fire insurance policy provides for an adjustment of loss by appraisers the policy remains in force, although the loss be adjusted in that manner.</p> <p>In an action on such policy the adjustment by appraisers is conclusive evidence of loss in the absence of proof of fraud.</p> <p>Where the plaintiff in an action on such policy pleads the adjustment and the defendant answers that it was procured by fraud, it is entitled to give evidence showing fraud, as it destroys the evidence upon which the plaintiff, relies to prove damage's.</p> <p>The insurer may defend upon the ground that the adjustment was procured by fraud without maintaining a suit in equity to set it aside.</p>

<p>Principal and. agent — broker’s action for commissions—right of principal to terminate contract-—inability of broker to perform—pleading — partial defense — condemnation of portion of lands.</p> <p>Where a contract employing a real estate broker to sell lots for a commission on each lot sold fixes no time within which. they must be sold and the authority is not coupled'with an interest, the owner may terminate the employment at will, provided that he acts in good faith and is not merely endeavoring to escape payment of commissions.</p> <p>Even if the broker under such contract be entitled to a reasonable time within which to make sales, he shows his inability to perform where during a period of four months he only succeeded in selling two lots out of the 358 which he was employed to sell.</p> <p>But the provision in such contract for the payment of commissions does not prevent the owner from terminating the contract until a reasonable time for the sale of all the lots has elapsed, so long as he . acts in good faith.</p> <p>Where under such contract the broker did not agree to sell all the lots, and the defendant was only obligated to pay commissions on such as should be sold, it is not a complete defense to the broker’s action for - commissions to allege that part of the lands had been taken by eminent domain, for that did not make it impossible to make sales of those not • taken. Where, such partial defense is pleaded as a complete defense it is demurrable.</p>

Appeal by Bayard L. Peck, as assignee, 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 24th day of February, 1911, confirming the report of a. referee. ¡

Appeal by the plaintiff, Alexander Doyle, '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 12th day of July, 1910, upon the! decision of. the court rendered after a trial at the New York Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 29th day of June, 1910, denying the plaintiff’s motion to open the case to introduce further testimony.

' Appeal by the defendants, Ellen. B. -Hill and another, from. a judgment of the Suprjeme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New Yoik ón the 21st day of April, l9l|o, upon the decision of the court rendered after a trial át the ¡New York Special Term.

Appeal by Thomas Ward, judgment creditor, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of January, 1911, reversing an order of the City Court of the city of New York adjudging the judgment debtor guilty of a contempt. ■ ' j

<p>Appeal by the defendant, Max Wiesen, 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 20th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the Sthday of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Daniel Seymour and another, as executors and trustees, etc., from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 1st day of June, 1910, confirming the report of an appraiser.

Appeal by the defendant, Gordon D. Miller, as executor, etc., from part of an' order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1911, and also from part of an .order entered on the 7th day of March, 1911, resettling the first order.

Appeal by the defendant, G-aston Bullock Means, 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 March, 1911.

<p>Intoxicating liquors—relocation Of certificate — allowing premises to . ■ .become disorderly.</p> <p>Evidence in a proceeding! to revoke a liquor tax certificate upon the ground that the holder held permitted the premises to become disorderly, examined, and held, that!, the certificate should be revoked, and that a finding of the trial court Jthat the evidence was insufficient to establish the allegations of the petition was erroneous.</p>

Appeal by Bella Ertheiler and another, as executors, etc., ■from an order of the Supreme Court, made at the New York Special Term and enteijed in the office of the clerk of the county of New York on the 12th day of December, 1910, reviving and. continuing an action algainst the appellants as executors, etc., of James Ertheiler, deceased.

Appeal -by Theodor,e Prince, an attorney, from an order of of the Supreme Court], made at the, New York Special Term and entered in the office of the clerk of the county of New York on the 17th day ]of February, 1911, directing the appellant to furnish a bill of particulars of_ a claim for professional services.

<p>Appeal by the defendant, Regina Moskiewitz, from an order of the Supreme Court) made at the New York Special Term . and entered- in the ojffi.ce of- the clerk of the county of New York on the '28th day of February, 1911, denying the said defendant’s motion for judgment on the pleadings.</p>

<p>Appeal by the defendant, the Liber ty-Nassau Building Com-. pany, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of February, 1911, upon the decision of the court, on a motion made by the plaintiff at the New York Special Term, granting judgment on the pleadings.</p>

Appeal by the defendant, Eversley. Childs, individually and as trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the officé of the clerk of the county of New York on the 20th day of January, . 1911, denying the defendant’s motion for judgment on the pleadings.

Appeal by the defendant, Eversley Childs, individually ánd as trustee, etc., from anj order of the Supreme Court, made at the New York Special Term and entered in the office .of the clerk of the county of Npw York on the-20th day. of February, 1911, denying the defendant’s motion to vacate an order for. his examination before trial or to dismiss and quash all proceedings thereunder and to vacate a subsequent order for his examination.

<p>Appeal by the defendants, Michael Tenzer and, another, from an order of the Appellate Term of the Supreme Court, entered in the office of ¡the clerk of the county of ¡New York on the 8th day of December, 1910, affirming a judgment of the Municipal Court of .the city of ¡New York in favor of the plaintiff entered in the office of the clerk of said court on the . 9th day of July, 1910. j ■</p>

<p>Appeal by the defendant,' the Washington Fire Insurance Company, from an order ¡of 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 March, 1911.</p>

Appeal by the plaintiff, Margaret Gassaway Bigelow, from an order of the Appellate Term of the Supreme Court, entered in the Office of the clerk, of the county of New York on- the 30th day of November,: 1909, reversing a judgment of the Municipal Court of the!, city of New York in favor of the plaintiff. jj

. Appeal by the plaintiff, Nellie K. Reed, as trustee, 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 20th day of March, 1911.

Appeal by the plaintiff, Charles E. W. Smith, from an order of the Supreme Court,, made at the New York Special Term and entered in the. office of the clerk of the county of New York on the 15th day of December, 1910.

Appeal by the plaintiffs, Marcial Acharan 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 New York on the 13th day of January, 1911, upon the dismissal of the . complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, William H. Longworth and another, from an order of the Supreme Court, made at the Term and entered in the office of -the : Nassau on the 17th day of November, 1910, denying the defendants’ motion for judgment on the pleadings under section 547 of the Code of Civil Procedure. ■ Kings County Special clerk of the county of

Appeal by the petitioner, James Kane, 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 March, 1911, denying the petitioner’s motion for a peremptory writ of mandamus. The opinion delivered at Special Term is reported in Matter of Kane (71 Misc. Rep. 163.)

Appeal by the plaintiff, Mary McLean Ludlow, from a judgment of the Supreme Court in favor of the défendant, entered in the office of the clerk jof the county of Suffolk on the 1st day of August, 1910, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint ■upon the merits. ; '

<p>Crime—juvenile delinquency — erroneous conviction.</p> <p>Evidence in an action wherein the defendant was convicted of juvenile delinquency in aiding to rob a woman examined, and held, that the judgment should be reversed and a new trial ordered.</p> <p>Burr, J., dissented.</p>

Appeal by the plaintiff, John Welch, 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 28th day of April, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 2d day of May, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Frederick A. Hempel and another, from a judgment of the- Supreme Court in favor of. the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of May, 1910, upon the decision of the court rendered after a tijial at the Kings County Spfecial Term.

Appeal by the plaintiff, Davis Kowal, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 15th day of December, 1910, dismissing the complaint.

Appeal by the plaintiff, Fanny Cary, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of June, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 1st day of July, 1910, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendant, the Firestone Tire and Rubber Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wesjfcchester on the 26th day of September, 1910, upon the decision iof the court, rendered after a trial at the Westchester Special Term, overruling-the defendant’s demurrer to- the amended complaint.

Appeal by the plaintiff, Margaret McDonald, from a judgment o'f the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 27th day of May, 1910, dismissing the complaint.

Appeal by Clark Williams, as Comptroller of the State of New York, from an order of the Surrogated Court of the county of Kings, enterejd in said Surrogate’s Court bn the 12th day of May, -1910, reversing an order of said court theretofore made herein and adjudging the estate of the decedent to be exempt from a transfer! tax.

Appeal by the. defendant, The South Shore Traction 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 30th day of December, 1910, upon the decision of the court rendered after a trial at the Suffolk Special Term.

Appeal by the defendant, Emma B. Miller, from an order . of the Supreme Court, made at the Kings County Special Term and entered in .the office of the clerk of the county of Kings on the 23d day of January, 1911, denying a motion to vacate an order granting an injunction pendente lite.

Appeal by the plaintiff, Saverio Vollaro, from an interlocutory judgment of the] County Court of Kings county in • favor of the defendant Josephina Vollaro, entered in the office of the clerk of 'said county ¡on-the 13th day of December, 1910, upon the decision of the court sustaining the said defendants demurrer to thex complaint and dismissing the said complaint as to her, and also from an order bearing date the 9th day of December, 1910, and entered in said' clerk’s…

<p>Pleading — equity — impressing trust on property — complaint — parties — foreign estate — bonds secured by mortgage on land here — situs of debt. •. . |</p> <p>For the purposes of pleading one sued in a representative capacity is a separate and distinct person from the same person sued as an individual. i , ■</p> <p>Where the complaint in am action against persons individually and as executors and trustees under a -will alleges only that plaintiff’s mother who was also the mother; of the defendants and their testator, agreed with plaintiff that, if she; would convey to her a certain interest in the father’s estate, she, the|mother, would “preserve and retain” it “in trust using only the income for life, and upon her death would give back to the plaintiff said interest, which was worth about $3,000,. but fails to set forth the mother’s' will or to allege that any trust was created thereby, or that any one ¡was appointed trustee thereunder, it is demurrable as not stating á cause of action against the defendants in then-alleged capacity as trustees.</p> <p>Nor does the complaint state a cause of action against the defendants individually for damagesjfor breach of the contract to which they were ' not parties. , . ■</p> <p>Where it. appears that the defendants are foreign executors the action cannot be maintained against them as executors, as one at -law for damages for breach of contract by then- testatrix, for the court has no jurisdiction of the. personj of the defendants.</p> <p>Since, so far as the complaint discloses, the trust was one of personalty only, its execution upon the death of the testatrix did not devolve upon her executors, but it vested in the Supreme Court until the appointment of a new trustee.</p> <p>If, therefore, the action be deemed one in furtherance of the trust, it is not maintainable againstjthe defendants as executors. ></p> <p>It seems, that the complaint states a cause of action against the defendants as executors upon the theory that the deceased repudiated the' trust agreement, and that property which might have been impressed with a trust in plaintiff’s behalf in the deceased’s lifetime is now-in the hands of her executors.</p> <p>When necessary to prevent" a failure of justice, equity will assume jurisdiction against foreign executors, but only where the relief asked relates to property -within its jurisdiction.</p> <p>Equity, however, will not take jurisdiction solely because a portion of the estate of a decedent, who was a resident of New Jersey, consists of a bond of a resident of this State secured by a mortgage on real estate located here.</p> <p>Where a creditor’s domicile and the bonds are both without the State, the debt evidenced by the bond has no situs here, even though the debtor be a resident.</p> <p>Where the complaint fails to allege that the bond or any of the estate of the deceased is within the State, it is demurrable as against the defendants as executors, even though it otherwise stated a good cause of action against them. »</p> <p>If in such a suit the court had jurisdiction of the subject-matter and the persons of the foreign executors, it seems that the individuals who are ultimately entitled to the property on which it was sought to impress the trust would be proper parties defendant.</p> <p>But where such a suit-fails as against the executors, it fails of necessity as against the individuals.</p>

<p>Appeal by the defendants, Morris Manson and another, from-an order of. the Supreme • Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on thé 1st day of December, 1910, as resettled by an order entered in said clerk’s office on the.‘ 12th day of December, 1910, granting leave to plaintiffs nunc pro tunc to continue an action against the defendants to recover upon a bond, on conditions. . .</p>

Appeal by William. A. -Prendergast, comptroller of the city of New York, from an order of the Supreme Court, made at the Queers County Special Term and entered in the office of the clerk of the county of Queens on the 25th day of November, 1910, directing the issuance of a peremptory writ of mandamus to compel the comptroller of the city of New York to pay the amount of ah award, with fifty dollars costs.

<p>Municipal corporations —- additional water supply for Mew York city — valuation of land taken — appeal order refusing confirmation of report.</p> <p>An award by commissioners made in a proceeding to acquire lands for an additional supply of water for New York city should not be set aside because they valued suburban property on the basis of-lot values rather than upon the basis of total acreage.</p> <p>But no appeal to the Appellate Division lies from an order of the Special Term refusing to confirm an award made by said commissioners and directing a new trial before new commissioners.</p> <p>Although there are reported cases in which such appeal has been entertained where objection has not been made, the court may not disregard the law if the objection be properly taken.</p>

Appeal by the contestant, Mattie S. Bitz, from a decree of the Surrogate’s .Court of the county of Bichmond, entered in said Surrogate’s Court ®n the 2d day of May, 1910, admitting to -probate a- paper propounded as the last will and testament of Jacobson W. -Wood, ¡deceased.'

Appeal by the defendant, Nicola Pagnotta, from a judgment of the County Court of Westchester county, rendered on the 26th day of January; 1910, convicting the defendant of the crime of assault in the second degree.

Appeal by the plaintiff, Alexander F. Reid, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, the Long Island Railroad Company, entered in the office of the clerk of the county of Kings on the 16th day of May, 1910, upon the dismissal of the complaint as to said defendant hy direction of the court at the close of. plaintiff’s case on a trial at the Kiiigs County Trial'Term.

Appeal by the defendant, Ernest Langlois, judgment debtor, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 12th day of December, 1910, denying the defendant’s motion to vacate an order for the examination of a third party.

Appeal by the plaintiff, Ida Platoff, from a judgment of the. Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 5th day of December, 1910, dismissing the complaint at the close of the plaintiff’s case in an action for negligence.

Appeal by the defendant, Augusta Ambs, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of plaintiff, rendered on the 27th day of September, 1910, in an action on an account stated.

<p>Appeal by the defendant, John F. Doherty, from part of a judgment of the County Court of Nassau, county in favor of the plaintiff, entered in the office of the clerk of said county on the 9 th day of May, 1910, upon the decision of the court.</p>

Appeal by the defendant, Harry Mormon, from a judgment of conviction of the County Court of Kings county, rendered against him on the 19th day of April, 1909, upon an indictment for rape in the second degree.

Appeal by the defendant, Harry S. Bretton, from a judgment of the County Court of Queens county, rendered against him on the 7th day of ¡April, 1910, Upon a plea of guilty to' grand .larceny, second degree, as a first,offense, on an indict-ment charging the commission of grand larceny in the second degree as a second offense. .

<p>Appeal by the defendant, Lester Leary, from a judgment of the Court of Special Sessions of the city of New York in favor of the plaintiff, rendered on the 13th day of May, 1910, adjudging the defendant the father of the complainant’s child and requiring him to give an undertaking for its support.</p>

Appeal by the plaintiff, Jeanette Demuth, 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 30th day of December, 1910, vacating and setting aside a judgment in favor of the plaintiff entered on the 14th day of May, 1902, upon an inquest taken on the 7th day of May, 1902.

Appeal by the plaintiff, The City of New York, from a judgment, of the Municipal Court of the .city of New York, borough of Brooklyn; in favor of the defendant, rendered on the 9th day of January, 1911, dismissing the complaint at the close of the plaintiff’s [casein an action brought to recover a penalty:

<p>Court—Municipal Court j—failure to pass on issues supported by 1 evidence. ,</p> <p>Where the defendant in Jn action in the Municipal Court gives proof supporting a defense andl also a counterclaim, it is reversible error for the court to render judgment for the plaintiff without passing upon the counterclaim. I</p> <p>Hirschbbr'g-, J., dissented. “</p>

Appeal by the plaintiff, George L. Rees, from a judgment of the Municipal .Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 21st day of November, 1910, dismissing the complaint. .

<p>Appeal by the defendant, John Herman Ernst Rust, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, i!n favor of the plaintiffs, rendered on the 30th day of November, 1910. ■ . •</p>

<p>Appeal by the defendant, The Allman Gas Engine and Machine Company, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of February, 1910.</p>

Appeal by the defendants, Albert P. Kalabza and others, from a judgment of the! Municipal Court of the city of New Y ork, borough of - Queeris, in favor of the plaintiff, rendered on the 25th day of November, 1910.

Appeal by the defendant, William A. Prendergast, as comptroller, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of- January, 1911, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, The Staten Island Water Supply Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 28th day of October, 1910, upon the dismissal of the complaint by direction of the court on a trial0 at the Richmond Trial Term.

■ Appeal by the plaintiff, Robert P. Buchner, from a judg-. ment of the Supreme Court in favor of the defendant,’ entered.in the office of the clerk of the county of Kings on the 2d day of June, 1910, upon the! dismissal of -the complaint by direction of the court at the close of plaintiff’s case - on a trial at the Kings County Trial Term. , •

Appeal by the plaintiff, Julia A: McDonald, as administratrix, etc., from an order of the Supreme Court, made at the Westchester Special Terim and entered in the office of the clerk of the county of Westchester on the 25th day of November, 1910, denying the plaintiff’s motion for judgment on the pleadings. . j

Appeal by the Artonbel Realty 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 6th day of February, 1911, denying the.appellant’s motion to be relieved of its purchase on a foreclosure sale herein..

Appeal by the defendant, the National Exhibition 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 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 20th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal . by the relator, Thomas 0. Conti, 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 Aay of September, 1910, denying the relator’s, application for an absolute writ of prohibition, and vacating and setting aside an alternative writ of-prohibition theretofore granted herein.

Appeal by the defendant, The Pennsylvania Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 26th day of May, 1910, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 20th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, John Koeppel and another, copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the clerk of the county of Kings on the 19th day of January, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of February, 1910, denying the defendants’ motion for a new trial made upon the minutes.

<p>Motion by the defendant, Augusta L. Brindley, for leave to appeal to the Court of Appeals.</p>

Appeal by the defendant, Samuel Matthews, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 9th day of November, 1910, permitting the plaintiff to file and serve a second supplemental complaint.

Appeal by the defendant, Angelo Manfredi, from a judgment of the County Court of Kings county, entered in the' office of the clerk of said county on the 21st day of January, 1907, convicting the defendant of the crime of grand larceny in the second degree.

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 29 th day of December, 1910, canceling an assessment for the purpose óf taxation for the year 1910 on the personal property held by the relator, Charles H. Stebbins, as executor, etc., of Mary L. .Vail, deceased.

Appeal by the plaintiff, William J. Logan, 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- 7th day of December, 1910, vacating a warrant of attachment theretofore issued herein, and an order reviving and continuing the action against the above-named defendant and vacating and setting aside a judgment entered on the 26th day of April, 1910, against said, defendant.

Appeal by Eliza H. McCullough and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of April, 1910, denying a motion for an order confirming the report of commissioners of estimate and assessment.

<p>Cross-appeals by the plaintiff, Ludwig & Company, and the defendants, The Claviola Company and another, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of March, 1910, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Sophie Marcháis Lagrave, from a ¡judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bew York on the 7th day of July, 1910, upon the decision of the court rendered after a trial at the Bew York Trial Term, a jury having been waived.

Appeal by the defendant, Lucius H. Beefs, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 1st day of July, 1910, reversing a judgment of the City Court of the city of New York entered in the office of the clerk of said court on the 29th day of January, 1910, in favor of the defendant,' dismissing the complaint.

Appeal by .the defendants, Nathan J. Packard and another, from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1911, denying the said defendants’ motion for judgment on the pleadings.

Appeal by the plaintiff, The Macey Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of December, 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.

Appeal by the defendant, the Great Eastern Casualty and Indemnity Company 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 5f the county of New York on the 28th day of February, 1911, denying the defendant’s motion to compel the plaintiff to give security for . costs. •

<p>Bank — savings bank deposit in trust for another — action by beneficiary to recover fund — failure to join trustee — interpleader.</p> <p>Although a savings bank deposit made by a parent in his own name as trustee for a daughter, coupled with delivery of the pass book to her, or other satisfactory proof of intention, may be deemed to create an irrevocable trust for her benefit, she has no right of action to compel ' the depositary to pay the money to her where the parent, who has disappeared for a number of years without being heard from, but whose death is not established, has not been made a party to the action.</p> <p>As the provisions pf the Code relating to interpleader are permissive, not mandatory, the failure of the depositary to bring in the parent did not work to its prejudice.</p> <p>It-seems, that it was the duty of the beneficiary to join her parent as defendant.</p>

Appeal by the defendants, Leopold Schmeidler and others, composing the firm, etc., from an order of the Appellate Term of. the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of December, 1910, affirming a judgment-of the City Court of the city of New York in favor of the plaintiff, entered in _ the office of the clerk of said court on the 6th day of May, ■ Í910, upon the verdict of a jury.

Appeal by the defendant, the Sun Printing and Publishing Association, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1911, denying the defendant’s motion to require plaintiff to separately state and number the causes of action.

<p>Pleading—answer to action on promissory note alleging breach of con- . tract — when allegation as to consideration sufficient — evidence — judicial notice — value of foreign coin—pleading—answer stating all elements of contract — when tender of performance unnecessary. — assignment — counterclaims existing against assignor — counterclaim as defense to suit by assignee.</p> <p>A-separate defense in an action on a promissory note is not defective in failing to allege a consideration for the agreement of the plaintiff’s transferor to deliver goods pursuant to a contract of sale on which the note was given in part payment, where in addition to stating that the ■ contract of sale, which the transferor failed to fulfill upon demand, was made “ for a valuable consideration ”—that being a legal conclusion — it also alleges that the "transferor agreed to sell and deliver the goods “ at ■ certain stipulated times in certain stipulated quantities, the terms of which are annexed hereto and made part hereof and that the defendant herein has .performed all the conditions on his part to be performed,” if the actual terms of the sale are set forth in letters of the parties annexed to the answer. „</p> <p>It is a permissible inference that the defendant agreed at the time the contract was made to pay the transferor at the rates specified in the annexed letters setting forth the prices and quantities of the goods. And it is immaterial that it appears that the note was not given until after the contract of sale was made.</p> <p>The court will take judicial notice that the word “Heller” used in the letter in stating the price is a modern Austrian coin of a certain value, as defined in English dictionaries.</p> <p>The defendant does not fail to allege all the elements of the contract merely because the letter annexed to the answer does not contain them, if taking the answer and the annexed letter together all the necessary elements are stated.</p> <p>Where the defendant alleges that he performed all the conditions of the agreement on his part to be performed, but that the plaintiff’s transferor failed on demand to deliver the goods called for by the contract, he need not allege a tender of the purchase price or readiness to pay, even though no credit was given, for as the plaintiff’s transferor refused to perform, as admitted.by his demurrer, no tender was necessary. . .</p> <p>It sufficiently appears that the defendant’s counterclaim for breach of contract arose prior to the action although the date of the breach is not specifically stated, where, in addition to the allegation that the plaintiff’s transferor failed to make deliveries as called for by the contract, the dates of delivery as set forth by the letter annexed to the answer are prior to the date upon which the action was commenced.</p> <p>A counterclaim against an assignor set up in an action brought by his assignee can only be allowed to such extent as will satisfy, the plaintiff’s demand. It may be used as a defense only, not as the basis of an affirmative judgment.</p> <p>IiíeBAHAM, P. J., and Scott, J., dissented, with opinion.</p>

<p>Mortgage — trust mortgage to refund underlying bonds construed — provision for release of reserved bonds — failure of mortgagor to retire underlying bonds.</p> <p>A railroad corporation executed and delivered a refunding trust mortgage ■ to secure an issue of refunding bonds. It was provided that the trustee should reserve a certain number of the bonds to be issued and delivered to the mortgagor in exchange for prior underlying bonds taken up “at maturity or before maturity ” and delivered to the trustee. Fourteen different classes of underlying bonds were specifically enumerated, some of which matured before the maturity of the refunding bonds and some many years thereafter. It was further provided that reserved refunding bonds which should not have been used for refunding the underlying bonds, or which in the judgment of the mortgagor evidenced by resolution should.no longer be required to be reserved for such purpose, might be issued to the mortgagor for use in railway construction:</p> <p>Held, that the purpose of the refunding mortgage was to refund all' the underlying bonds enumerated, so that the mortgagor was not entitled " to have a portion of the reserved refunding bonds released and turned over to it for railway construction-.where it had not yet succeeded in retiring underlying bonds although they will mature long after the bonds secured by the refunding mortgage.</p>

<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 17th day of February, 1908, confirming the report of the commissioners of estimate and assessment herein.</p>

Certiorari issued out of the Supreme Court and attested on the 31st day of May, 1910, directed to William F. Baker, commissioner of police of the police department of' the city of ¡New 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 dismissing the relator from the police force of the city of Yew York.

<p>Corporation — representative action by stockholder — estoppel — receiving illegal stock and • dividends — receiver — facts not justifying appointment.</p> <p>It seems, that a person who' has received and retained stock unlawfully issued as a bonus and has received dividends illegally declared cannot maintain a representative action on behalf of the corporation against the directors for fraud. .</p> <p>In a representative action brought by a stockholder on behalf of - the corporation against directors a charge that the defendants induced him to ■ purchase stock by fraud is irrelevant.</p> <p>The court will not appoint a receiver of a corporation in a representative action brought by a stockholder against - directors alleged to have "induced the plaintiff- to purchase stock by fraud and for unlawfully issuing Stock and'deelaring dividends, 'where it appears that no further waste is threatened in that the stockholders have appointed a committee, not including the defendants, to preserve the assets of .the corporation and that the codirectors of the one charged with unlawful acts have removed him from office, compelled him tó make partial restoration and undertook criminal proceedings against him.</p> <p>Especially is this so where the complaint contains averments tending to cast doubt upon the good faith of the plaintiff in that the suit may have been instigated by the director whose acts are complained of.</p>

<p>Constitutional law — constitutionality of apportionment—jurisdiction :•—academic question — State Constitution, article 3, section 5, construed— power of court to review apportionment thereunder.</p> <p>The Supreme Court has no jmisdiction to determine the constitutionality of chapter 727 of the Laws of 1907, reorganizing the Senate'districts and the apportionment .of the members of Assembly of .the State, on the petition of citizens who have obtained an order to shdw cause why the prayer of the petition should not be granted, directed to the Attorney-General,. the Governor, the President' of, the Senate and the Speaker of the Assembly.</p> <p>Section 5 of article 3 of the. State Constitution providing that an apportionment by the Legislature shall be subject to review by the Supreme Court at the suit of any citizen under such reasonable regulation as the Legislature may prescribe does not confer extrajudicial power upon the court so as to give to any citizen the right of direct appeal from the Legislature to the court.- The word “review!’ as.used in said section does not authorize the court to decide-the* constitutionality of an apportionment-as an abstract or academic question, but only confers upon it the exercise’ of regular judicial power in some known judicial proceeding.-</p> <p>The constitutionality of an act of the Legislature is a question of law, but does not become a judicial question until it arises in the regular course of some judicial proceeding.. ' ■ <</p>

<p>Submission of a controversy upon an agreed statement oí facts pursuant to section 1219 of the Code of Civil Procedure .</p>

<p>Pleading — complaint stating action for negligence rather than for nuisance — Statute of Limitations — allowing dog of tenant to remain in hallways of apartment house — nuisance.</p> <p>A. complaint which, in substance alleges that the defendant, owner of an apartment house in which the plaintiff resided, “unlawfully, .négligentlyand carelessly permitted á certain dog, the property of one of the tenants * * * to lie and remain about the hallways * * * so as to be dangerous to * * * persons traversing said hallways * * * and to become a nuisance, as defendant weE knew,” and that the defendant omitted to light the haEways, so that, without negligence on her part, and by reason of “the aforesaid negligence and unlawful acts of the defendant,” the plaintiff tripped upon the dog and received, injuries, states a cause of action based upon neghgence rather than one for the maintenance of a nuisance. Hence, it is a defense to such complaint to set out the Statute of Limitations governing actions for negligence.</p> <p>A plaintiff guEty of such duplicity in pleading cannot avoid the defense of the Statute of Limitations to actions for negligence on the ground that she also characterized her action as one for a nuisance. .</p> <p>The liberal rule of construing pleadings attacked on demurrer does not apply to a case where the ambiguous pleading is itself the basis of an attack upon an answering pleading.</p> <p>The act Of the landlord in aEowing the dog of a tenant to remain in the . haEways of an apartment house was neither a public nor a private nuisance.</p> <p>¡Nuisance involves the element of positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission.</p>

<p>Pleading — complaint — action against factor for accounting.</p> <p>The complaint in an action against an alleged factor to recover proceeds alleged to have been received by him from the sale of merchandise examined, and held, not to state a cause of action.</p>

Appeal by the plaintiff, Sadie M. Begen, from a ■ judgment of the Supreme Court in favor of the defendants, entered'in the office of the clerk of the county of New York on the 20th day of June, 1910, upon the decision of the court rendered after a trial at the New York. Special Term,

Appeal by Anna Hachemeister and another, as administrators, 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 21st day of February, 1911.

<p>Public service corporations — penalty for failure to obey order of Public Service Commission—failure to prove order by Commission — evidence . —unauthenticated document-—failure to show that Commission acted as a body—bona fide endeavor to comply with order—extension of time.</p> <p>Section 56 of the Public Service Commissions Law (Laws of 1907, chap. 429), imposing a penalty tó the People of the State upon a common carrier who has failed to comply with the orders of the Public Service Commission, is highly penal, and ih an action to recover the penalty the plaintiff must show that the Commission did in fact make an order which the defendant disobeyed.</p> <p>There can be no recovery against a common carrier for a failure to equip all of its cars with wheel guards pursuant to an alleged order of the Public Service Commission, where the only proof that such order was made is the introduction of a typewritten document without signature, initials or file mark, bearing changes upon its face as to date and the time it was to take effect, and where the only witness as to the authenticity of the document does not state in whose handwriting the changes were made or whether they were made before the order was adopted.</p> <p>Moreover, such document is insufficient to establish a valid order by the Public Service Commission where it does not appear that it was adopted by at least a majority of the Commissioners at a stated meeting, or at a meeting properly called and of which all the Commissioners had been notified so as to have had an opportunity to be present. This, because the Public Service Commissioners are not authorized to act independently of each other, and it is only for a violation of an order of the Commissioners adopted as a body that a penalty can be imposed.</p> <p>A common carrier sued for such penalty is entitled to show that its failure to obey an order was due to no fault of its own, but resulted from causes beyond its control. There can be no recovery where the uncontradicted evidence furnishes a complete excuse and explanation of its failure to obey the order.</p> <p>Thus there can be no recovery where the carrier shows without contradiction that it made a contract to equip all its cars with the wheel guard most highly recommended by the Public Service Commission, but was able to equip only a portion of its cars with the device within the time fixed owing to the fact that the contractor was unable to furnish the necessary number of wheel guards within that time.</p> <p>It seems, that undgr such circumstances the defendant would have been entitled to an extension of time within which to comply with the order.</p>

Appeal by the plaintiff, The People of the State of New York, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of October, 1910.

Appeal by the defendants, Frank M.' Dusenberry and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1911.

Cross-appeals by the plaintiff, Marc Klaw, and the defends ant, the New York Press Company Limited, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of December, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, The City of New York and • another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk .of the county , of. New York on the 29th day of June, 1910, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 28 th day of June, 1910, denying the said defendants’ motions for a new trial made upon the minutes.

Appeal by the defendant, Edward Holbrook, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of January,. 1911.

Appeal by the plaintiff, Willard ,S. Allen, 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 April, 1911.

Motion by the plaintiff, Clarence L. Barber, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court on a trial at the New • York Trial Term in October, 1910:

Appeal by the plaintiff, Browning, King & Company, a corporation, from an interlocutory 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 1st day of February, 1911, upon the decision of the court, rendered after a trial at the New'York Special Term, overruling the plaintiff’s demurrer to two defenses and a counterclaim set up in the defendant’s amended answer.

Appeal by the defendant, Louis De Brauwere, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of December, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.

Appeal 'by the defendant, John R. Bennett, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 22d day of November, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiffs’ demurrer to a partial defense contained in the amended answer of the defendant, John R. Bennett.

Appeal by the defendant, Henry B. Billings, individually, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1911, granting plaintiff’s motion for judgment on the pleadings against the said defendant.

Motion by the plaintiff, Dean Gr. Edwards, 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 after a trial at the New York Trial Term in December, 1910.

Appeal by the defendant, Annie Leahy, 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, sustaining the plaintiff’s demurrer to several- affirmative defenses set forth in' the answer of the defendant Annie Leahy,, and denying the said defendant’s motion for judgment in her favor upon the pleadings. . .

Appeal by the plaintiff, the Central Trust Company of New York, as trustee, from so much of 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 Ith day of February, 1910, upon the report of a referee, as awards to the plaintiff nominal damages only, and also from an order entered in said. clerk’s •office on.the 29th day of June, 1909, denying the plaintiff’s motion for an extra allowance.

<p>Appeal by the defendant, the Traitel Marble Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1910, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 24th day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Max Kliger, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of January, 1911,. and the 17th day of March, 1911, respectively.</p>

<p>Appeal by the defendants, The National Slavonic Society of the United States of America and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York pn the 17th day of March, 1911.</p>

Appeal by the petitioner, Charles Minzesheimer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of March, 1911, denying the petitioner’s motion to compel payment of interest upon an award in a proceeding to close a street.

<p>Damages — revocation of license to remove building — incidental damage.</p> <p>The measure of damages where one unreasonably revokes a parol license to enter upon his land and remove a building therefrom is the difference between the value of the house if the licensee had been allowed to complete its removal and the expense of removing it.</p> <p>Such licensee is not entitled to recover incidental profits which he might have made through the use of the building when removed, they being too remote, uncertain, and not within the contemplation of the parties.</p>

<p>Appeal by the defendant, the Goodwin Car 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 oh the 8th day of March, 1911, denying the defendant’s motion to strike from the complaint certain matter claimed to be redundant and irrelevant.</p>

Appeal by the plaintiff, Fred M. Dennis, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New. York on the 30th day of January,. 1911.

Appeal by the plaintiff, Mary Wessel, 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 April, 1911, vacating an order for the examination of the defendant before trial.

Appeal by the plaintiff, May Wessel, 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 April, 1911, vacating an order for the examination of the defendant before trial:

<p>Injunction — contract — special services — enforcing negative covenant.</p> <p>Where a violinist agreed with two middlemen or “farmers out" of vaudeville performers to perform at such'theatres as they might designate for a period of two years at a certain salary under a contract whereby he was to receive no money from them but they were to take such part of the salary paid him by the theatres as exceeded the amounts set forth in the contract as. the limitation of his own compensation and whereby they did not obligate themselves to obtain employment for him at any prescribed salary and did not promise how much he was to receive and it appears that the middlemen were not theatrical producers or managers arid had no companies or theatres, the violinist will not, at their suit, be enjoined from performing without then- permission.</p> <p>Such a contract has none of the elements which would induce a court to enforce a negative covenant express or implied not to work for others when the services contracted for are special, unique and extraordinary.</p>

<p>Motion for leave to eliminate from the papers upon which appeal is to be heard certain portions of the judgment roll.</p>

Appeal by the plaintiff, William Gow, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of March, 1911, denying the plaintiff’s.motion for discovery and inspection of certain books, papers and documents,

Appeal by the defendants, August Heckscher and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30'th .day of December, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrers to the complaint.

Appeal by the ■ People of the State of New York from an order of the Supreme Court,- made at the New York Special Term and entered in the office of the clerk of the. county of New York on the 6th day of December, 1910, sustaining a writ of habeas corpus and discharging .the relator from custody.

Certiorari issued out of the Supreme Court and attested on the 20th day of January, 1911,' directed to The Department of Health of the City of New York, commanding, it to certify and return to the office of the clerk of the county of New York all and singular'its proceedings had in dismissing the relator from the position of assistant registrar of records in the department of health.

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

Appeal by the defendant, The Edison Electric Ilhiminating 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 23d day of July, 1910, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 12th day of July, 1910, denying the defendant’s motion for. a new trial made upon the minutes.

• Appeal by the petitioner, Sextus E. Taylor, 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 Orange on the -16th: day of January, 1911, denying the petitioner’s motion to have certain moneys turned over to him.

Appeal by the plaintiff, George T. Stockham, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 28th day of September, 1910, dismissing the complaint.

<p>Appeal by the defendant, William E. Duryee, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff for $100 damages and $17 costs and disbursements, rendered on the 10th day of January, 1911, after a trial without a jury.</p>

Appeal by the defendant, the New York and Brooklyn. Brewing 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 8th day of February, 1909.

■ Appeal by the defendant, Rubin Osterweil, from a judgment of the Municipal Court of the city .of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 6th day of February, 1911.

<p>■Appeal by the plaintiff, the New York and Brooklyn Brewing Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defend-, ant, rendered on the 24th' day of October, 1910.</p>

Appeal by the defendant, John E. Henry, individually and as receiver,-etc., from a judgment of the Municipal Court of the city of New York, rendered on the 15th day of March, 1911, in favor .of the plaintiffs for the sum of $220 damages and costs, in an action tried before the court -without a jury.

<p>Lien — mechanic’s lien — improvements by tenant — consent of landlord.</p> <p>Where 'a lease provided that the tenant should have a steam heating plant installed for which he was to be allowed $200 a month by way of deduction from the rent, and the landlord subsequently sent a contractor who had done such work for her on other premises to the tenant to make an agreement for the work, .the contractor, who thereupon saw the tenant, secured the contract and performed- the work for which the tenant refused to pay, can maintain an action to foreclose a lien against the premises for the value of his services, and, the facts having been shown, it is error to dismiss the complaint at the close of plaintiff’s case.</p> <p>The provision in the lease in reference to .the work and the act of the landlord in directing it constituted a consent, thereto .on the part of the owner within the meaning of section 3 of the Lien Law.</p>

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 3d day of October, 1910, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 21st day of September, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Waterbury 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 oh the 31st day of October, 1910, upon the verdict of a jury' for $5,000, and also from an order entered in said clerk’s office on the 2d day of November, 1910, denying the defendant’s motion for a new trial. made upon the minutes and granting the plaintiff an extra allowance.

Appeal by- the plaintiff, Edward J. Byrne, from a judgment of the Municipal Court .of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 10th day of November, 1910.

Appeal by the plaintiff, Celia Cohen, 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 18th day of March, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal by the defendant, Sarah T. Woodbury, from a judgment of the Suprepie Court in -favor of the plaintiff, entered in the office of the- clerk of the county of Kings on the 29th clay of June, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the 18th day of June, 1910, fixing the costs and granting an extra allowance.</p>

Motion by the plaintiff, Michael P. Dolan, 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 at the close of plaintiff’s case on a trial at the Kings County Trial Term in March, 1910.

Appeal by the defendant, James W. Finch, 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 28th day of December, 1910.

Appeal by the plaintiff, Harry Falk, from an. order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 21st day of' March, 1908, denying the plaintiff’s motion to be permitted to continue this action against the executors of the defendant.

■ Appeal by the plaintiff, Jay F. Carlisle, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of June, 1910, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, the Mack Paving and Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of 'Westchester on the 6th day of May, 1-910, upon the verdict of a jury for $281, and also from -an order entered in said clerk’s office on the 10th day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Harvey J. Ubert, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 25th day of Juné, 1910, upon the dismissal of the complaint by direction of the .court at the close of plaintiff’s case on a trial at the Kings County Trial Term.

<p>Appeal by the defendant, the Village of North Pelham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office óf the clerk of the county of Westchester on the 29th day of November, 19Í0, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

Appeal by Mary B. Trimble from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 30th day of Hovember, 1910, confirming the report of a referee.

Appeal by the defendants, John Thatcher and another, from a judgment - of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of December, 1910, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 8th day of December, 1910, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The Carey Printing 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 27th day of July, 1910, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 26th day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes.

.Appeal by the defendant, Anna P. Ditmar, 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 8th day of March, 1911, denying the said defendant’s motion for judgment on the pleadings.

Appeal by the defendant, William M. Barrett, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of May, 1910, upon the verdict of a jury for $2,000, and also .from an order entered-in said clerk’s office on the 17th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Catharine T. B. Mathews and others, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Westchester on the 2d day of March, 1911, denying the said defendants’ motion for the dismissal of a petition in condemnation proceedings as to a part of the land sought to be condemned.

Appeal by the American Society for Psychical Research, legatee, from a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 25th day of July,' 1910,, and also from an order entered on the 1st day of August, 1910, granting letters of administration on the estate of the decedent.

Appeal by the plaintiff, Simon Bender, from a judgment of the Supreme Court in favor of the defendant, Agatha Bahr, entered in the office of the clerk of the county of Kings on the 11th day of January, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of January, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Supplementary proceedings—reviving lien of judgment under section 1253, Code of Civil Procedure — effect of failure to revive lien upon all of debtor’s realty —practice—vacating ex parte order.'</p> <p>After a judgment has ceased to be a lien upon real property by the expiration of ten years there can be no examination of the judgment debtor in proceedings supplementary to execution where the judgment creditor has merely revived the hen of the judgment under section 1353 of the Code of Civil Procedure as to part of the debtor’s real property. This, because supplementary proceedings being a. substitute for the creditor’s bill as formerly used in chancery, he must, before resorting thereto, exhaust, his legal remedies, and although his execution may have been returned partially unsatisfied he has failed to exhaust his legal remedy against all of the debtor’s property.</p> <p>The hen of a judgment is revived by a proceeding under section 1252 of'the Code of Civil Procedure only as to the specific real property described in the notice.</p> <p>A court order vacating an ex parte order for the examination of a judgment debtor in supplementary proceedings on the return day cannot be attacked as an attempt by one justice to review the order of another..</p>

<p>Eminent domain — New York city—water supply —lands of cemetery — holder of land shares—right to be heard — waiver — deed — condition subsequent— reverter.</p> <p>Where a cemetery corporation, pursuant to power conferred by the act under which it was incorporated, purchased land and gave back “land shares ” to the grantor, whereby it agreed to pay her one-half of all moneys received from the sale of cemetery lots made from the land, the holders of the shares have a right to be heard upon a proceeding by the city of New York to condemn the land for its water supply.</p> <p>The holders of such shares have an interest in the land within the meaning of sections 13, 13 and 19 of chapter 734 of the Laws of 1905, providing that the city shall make compensation to every person interested in the land taken and requiring the commissioners of appraisal to hear the proof of any person interested in such real estate.</p> <p>The agreement of the cemetery company with the owner of the land when it purchased it created a condition subsequent that the property should be devoted to cemetery purposes, and a non-compliance with the condition would have defeated the estate.</p> <p>Where such land is taken by the sovereign the effect of the forfeiture will be admeasured in money according to. the rights of the respective parties.</p> <p>Since the Revised Statutes the possibility of a reverter has not been an estate in land.</p> <p>The holders of the land shares did not waive them right to be heard by failing to appear before the commissioners of appraisal when the proceeding was first heard, and where the original proceedings have been set aside on other grounds and a new hearing ordered they should be allowed to present them claim and evidence to support it upon the rehearing, for section 19 of chapter 734 of the Laws of 1905 allows interested parties three years within which to appear.</p>

<p>Will construed — when remainders vested, not contingent — direction that trustees convey—construction.</p> <p>Under a will which, after placing • lands in trust, income to the testator’s , wife for life, directs the executors to continue the trust on the widow’s death, income to the maintenance of a son for life, “and upon his decease’’ the trustees to “convey” to a daughter and another son, the remaindermen take vested rather than contingent remainders.</p> <p>In construing a will the law favors the vesting of devised estates as soon as possible after the death of the testator, and a construction resulting in intestacy will, if possible, be avoided.</p> <p>Under said will the right of the remaindermen in the lands did not depend upon a “ conveyance ” to them by the trustee.</p>

<p>Insurance — fraternal benefit insurance — when association may increase assessment under reserved power to do so.</p> <p>Where a contract between a member and a fraternal benefit insurance association provides for the payment of a fixed sum upon the death of the member and that assessments shall be at a specified rate, neither the conditions upon which the same shall become payable can be altered, nor can the sum to be paid be reduced, nor the amount of the specified assessment increased without the consent of the member, which rule is not altered by the fact that the contract may reserve a power to amend the by-laws in purely general terms.</p> <p>But if there be reserved in such contract a power to amend the laws governing the association reasonably designating the subjects thereof, so that a person when applying for membership is fairly advised that the terms of the contract he is about to make may be altered in the respects referred to, subsequent changes in the by-laws may be made, if reasonable, and the change must be deemed to have been assented to ■ by the member. 1 ■'</p> <p>Thus, where the laws of the State where such fraternal corporation is organized empower it to change the rate of assessment upon members having insurance; and where at the time the member joined the constitution provided that the laws governing the benefit fund could be altered and amended by a three-fourths vote of the supreme council, and the member’s application stated that, having become acquainted with the objects of the order, he agreed to conform to its laws then in force “ or which may thereafter be adopted ” and the benefit certificate contained a similar clause that the member should comply with the laws that might thereafter be enacted to govern the relief fund, the member is bound by a subsequent resolution increasing the amount of his assessment, if it appear that the increase was reasonable.</p> <p>There is a vital difference between a mere general reservation' of a power of amendment which cannot affect vested rights and the specific reservation of power to alter rights arising under the contract at the time it was made and to which the other party assents.</p> <p>Hirschberg, J., dissented.</p>

Appeal by the defendant, Martin Herman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 1st day of June, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term..

Appeal by the plaintiff, Mamie E. Perry, 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 February, 1911.

Appeal in the first action by the defendants, Joseph Levy arid another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of. Kings on the 14th day of February, 1911, granting the plaintiff’s motion for an injunction.

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from an order of the Supreme Court, made at the Westchester Special Term, bearing date the 6th day of May, 1910, and entered in the office of the clerk of the county of Westchester, confirming the report of a referee.

Appeal by the plaintiffs, Sarah H. Barnes and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county ■ of Richmond on the 20th day of March, 1911, upon .the report of a referee in so far as such judgment refers the taking of. the account to the referee rather than directs him as referee to take the account and pass on the question of costs, and also from an order entered in said clerk’s office…

Appeal by the defendant, the H. F. Taintor 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 Richmond on the 10th day of April, 1911, granting the plaintiff’s motion for an open commission to examine witnesses.

Appeal by the plaintiff, Frank B. Palmer, as administrator, etc., from- a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Eockland on the 10th 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 plaintiff’s motion for a hew trial made upon the minutes.

<p>Tax—transfer tax — savings bank deposit in name of husband and wife — presumption of equal ownership.</p> <p>Where moneys are deposited in the savings bank in the name of a man and his wife, and it does not appear who made the deposit, the presumption is that each had an equal interest.</p> <p>Hence, in a proceeding to assess a transfer tax, a widow by alleging that savings bank deposits standing in the name of her husband and herself . were made from earnings jointly acquired by them in the prosecution of a business raises a presumption that she has equal ownership in the deposit in the absence of other evidence as to who made the deposit and, if the estate falls below $10,000 by allowing her one-half of the fund, no transfer tax should be assessed. '</p>

Appeal by the petitioners, John E. Andrus and others, from so much of 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 19th day of April, 1911, as denies the application of the petitioners in so far as the same related to the premium received on the sale of Bronx Valley sewer bonds.

<p>Limitation of action—suit against trustee for an accounting.</p> <p>Where a trust deed, vesting the trustee with power to sell lands, directed him to pay the income from the estate for the maintenance of the creator and his family and at his death to convey the corpus remaining to persons named, the remainderman’s right of action against the trustee for an accounting began to run on the death of the creator and was barred by the lapse of twenty years, if there was no fraud or misrepresentation by the trustee of which the remainderman was ignorant.</p>

Certiorari issued out of the Supreme Court and attested on the 23d day of February, 1910, directed to Egburt E. Wood-bury and others, composing the State Board of Tax Commissioners, and the State Board of Tax Commissioners of the State of New York, requiring said Board to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had in determining the amount of mortgage tax reapportioned by them under section 260 of the Tax Law…

Appeal by the defendants, Sara Oppehheim Cohn, individually and as executrix, etc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 22d day of December, 1910, upon the decision of the court rendered after a trial at the Albany Trial Term, a jury having been waived. •

<p>Appeal by the defendant, the Pittsburg-Eastern Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer oh the 13th day of October,-1910, upon the decision of the court, rendered after a trial at the Albany Special Term, sustaining the plaintiff’s demurrer to defendant’s first and partial defense and to the second and third defenses contained in its answer to the amended complaint. ■ .</p>

<p>Appeal by-Henry De Freest, as executor, etc., of Richard M. De Freest, deceased, from an order of the Supreme Court, made at the Albany Special Term -and entered in the office of the clerk of the county of Rensselaer on the 3d day of January, 1911, restoring for record certain mortgages which had been discharged, of record.</p>

Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 15th day of August, 1910, upon the verdict of a jury for $5,000, and interest, and also from an order entered in said clerk’s office on the 19th day of September, 1910, denying the defendant’s motion for a new trial made upon the minutes. .

<p>Appeal by the defendant, Edward B. Tarbox, as survivor, etc., from a judgment of the Supreme Court in favor of the plaintiff,- entered in the office of the clerk of the county of Delaware'on the 28th day of Eebruaiy, 1910, upon the report of a referee.</p>

Appeal by „the defendant, Thomas F. McDermott, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 1st day of September,. 1910, as amended, upon the decision of the court rendered after at trial a the Rensselaer Trial Term, the parties having stipulated at the close of the-case that there was no question to he submitted to the jury for determination.

. Appeal by the defendant, Katherine L. Cary, from an order of the Supreme Court, made at the Albany Special Term and-entered in the office of the clerk of the county of Rensselaer on the 30th day of July, 191-0, denying the defendant’s motion to vacate and set aside a final judgment for divorce.

Appeal by the defendants, Melvin; Russell and others, as trustées, etc., 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 29th day of October, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of November, 1916, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Peter Bellinger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 16th day of January,… Held: in substance, that by the decree of the surrogate the real estate has become personal property so that the plaintiff cannot maintain ah action for the partition thereof, from which judgment this appeal is brought.

<p>Contract — agreement to divide estate — consideration — compromise of conflicting claims — husband and wife — when wife entitled to compensation for services rendered — wager — when Compromise of heir extinguishes claim against estate.</p> <p>An agreement by a sole heir and next of kin with a person to whom her ancestor had agreed to leave all her property by will in consideration of care and maintenance for life, ■ to divide the estate equally between them made after the death of the ancestor and at. a time, when it was not known by either party whether any will had been made is founded upon a good consideration, is valid and enforcible.</p> <p>The mutual promises are a good consideration for such contract.</p> <p>Moreover, as the person to whom the ancestor agreed to leave her property by will had performed her part of the obligation by furnishing care and maintenance, the subsequent agreement to divide the estate with ■the heir was valid as a compromise of conflicting claims.</p> <p>Although the person furnishing the board and care was a married woman her husband must be deemed to have emancipated her and agreed that she should retain the fruits of the contract, where he was present at the time the agreement to make the will was made and made no personal claim.</p> <p>It is not necessary in order to uphold a compromise agreement based upon a surrender, composition or compromise of a claim, that the claim should be valid or enforeible at law, provided such claim be made in good faith.</p> <p>The contract to divide the estate is not void as a wager as to whether cr no the deceased left a will as she promised.</p> <p>The person to whom the decedent promised to leave her property by will released all claim against the estate under her former contract by the agreement to divide with the heir at law.</p>

<p>Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the ¿lerk of the county of Essex on the 8th day of December, 1910, granting leave to the defendant to serve an amended answer.</p>

' Appeal by the plaintiffs, Edward J. Patterson and others, 'from, an interlocutory judgment- of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 4th day of November, 1910, upon the decision of the court, rendered after a trial at the Broome Special Term, sustaining the defendant’s demurrer to the complaint.

Appeal by the defendant, the American Separator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 9 th day of August, 1910, upon the decision of the court rendered after a trial at the Chenango Trial Term, a jury having been waived.

Appeal by the plaintiff,. Ida B. Geer, as sole administratrix, etc., from a judgment of the Supreme Court, entered in the office of the clerk of the county of Chemung on the 19th day of November, 1910, upon the dismissal of fhe complaint by direction of the court at the close of plaintiff’s case on a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the same day, denying the plaintiff’s motion for a new.trial made upon the-minutes.

Appeal by the defendant,, the Oneonta Light and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 26th day of August, 1910, upon the decision of the court, rendered after, a trial at the Otsego Special Term, awarding to plaintiff damages for overflow of his land by reason of a dam maintained by defendant; also awarding a perpetual injunction restraining the defendant forever after…

<p>Appeal from an order entered in the Hew-York county clerk’s office on the 1st day of March, 1911, directing payment of alimony and counsel fee during the pendency of the action.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 6th day of July, 1910, on the verdict of a jury and from an order entered on the 26th day of January, 1911, denying a motion for a new trial.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 12.79 of the Code of Civil Procedure.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 12th day of January, 1911, confirming the report of a referee requiring defendant to pay to the Carnegie Trust Company and Henry Schneider, who -were- appointed by an ex parte order of the Supreme Court temporary receivers of the defendant, the sum of $10,872.49 as their commissions and disbursements as such temporary receivers, and $680.63 as the costs of the proceeding to ascertain the amount of such fees and disbursements.</p> <p>Order modified by reducing the amount allowed to the Carnegie Trust Company for its compensation as temporary'receiver to the sum of $1,000, and by reducing the amount allowed as counsel fees to the sum of $2,000, and as so -modified affirmed, without costs. Ho opinion. Present*— Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Ingraham, P. J., dissented.</p>

<p>New York eity—fire department—right to install telephone wires — permit by commissioner.</p>

-Appeal by the plaintiff from a. judgment of. the Supreme Court, entered in the office of the clerk of Queens county on the 18th day of September, 1909, in favor of the defendants, dismissing the complaint and granting a motion for an extra allowance and costs. Judgment modified by striking therefrom the extra allowance, and as thus modified affirmed, without costs. Noopinion.

Appeal by plaintiffs from an order entered in the New York county elerlds office on the 8th day of March, 1911, as resettled by an order entered on' the 3d day of April, 1911, denying motion for appointment of a receiver pending the trial of this'action; and by defendants from so much of said order as conditioned the denial of said motion upon defendants giving a bond to secure payment of judgment, if any, recovered in this-action.

<p>Appeal from an order of the Special Term, entered in the New York county clerk’s office on the 19th day of April, 1911, allowing defendants to serve amended answers.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 12th day of January, 1911, granting defendant’s motion that complaint separately state and number the two alleged causes of action contained therein.</p>

<p>Appeal from an order entered in the New York county clerk’s officé on the 23d day of March, 1911, denying a motion for an injunction during the pendency of the action.</p>

judgment, entered in the New York county clerk’s office on the 18th day of November,' 1910, upon the verdict of a jury, and from an order entered on the 14th day of November, 1910, denying a motion for a new trial.

<p>Appeal from an interlocutory judgment, entered upon a decision after atrial at Special Term. .</p>

<p>Appeal from a judgment in favor of the plaintiff entered in the New York county clerk’s office on the 23d day of November, 1910, on the verdict of a jury for $1,000 and from an order entered on the 13th day of December, 1910, denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered in the New York county clerk’s Office on the 33d day of Hovember, 1910, upon the report of a referee.</p>

Appeal by the defendant 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 23d day of May, 1910. Judgment affirmed, with costs, on the authority of Meadows v. Michel (135 App. Div. 213) and on the opinion of Bischoff, J., in the court below.