Volume 145 — New York Appellate Division Reports

Appeal by the defendant, The Union Bag and Paper Company, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 4th day of August, 1910, upon the decision of the court rendered after a trial at the Saratoga Special Term.

Appeal by the defendants, William Hovark and another, from an order of the County Court of Warren county, entered in the office of the clerk of said county on the 9 th day of March, 1911, denying the defendants’ motion to change the referee appointed to take evidence in proceedings supplementary to execution against said defendants upon the ground that said referee as attorney had recovered a judgment against them which.remained unpaid and was in his hands for collection.

<p>Tax — approval of assessment roll by Comptroller — powers of Comptroller under section 22 of the Tax Law — refusal tó approve asáessment roll upon ground that forest lands should have been assessed to State — mandamus to compel approval of assessment roll — venue.</p> <p>The State Comptroller may not refuse to approve an assessment roll upon the sole ground that certain forest lands were assessed to private persons which should have been assessed to the State.</p> <p>Section 22 of the Tax Law, empowering the Comptroller to correct or reduce any assessment of State lands which in his judgment is unfair in proportion to the remaining assessment of lands, is designed only to protect the State from an, overvaluation of the lands assessed to it, and does not empower the Comptroller to require lands assessed to individuals to be assessed to the State. <</p> <p>An application for a writ of mandamus requiring the State Comptroller to approve an assessment roll containing assessments of forest lands against the State should be made within the-, third judicial district where the.offlee of the Comptroller is located.</p>

Appeal by the relator, Lorenzo D. Hewitt, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 30th day of December, 1910, denying the relator’s motion for a peremptory writ of mandamus to compel the county treasurer to pay to the relator certain mileage.

Appeal by the defendant, the Empire State Degree of Honor, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 2d day of December, 1910, upon the decision of the court, rendered after a trial at the Chemung Special Term, overruling a demurrer to the amended complaint. ■

Appeal by the plaintiff, William H. Plumb, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of &⅞ county of Franklin on the 2Tth 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 Franklin Trial Term, and also from on order bearing date the 4th day of April, 1910,. and entered in said clerk’s office denying the plaintiff’s motion for a new trial…

Appeal by the plaintiff, William H. Mudge, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on, the 25th day of October, 1910, upon the decision of the court rendered after a trial at the Schenectady Trial Term before the court without a jury.

<p>Cebtiorabi issued out of the Supreme Court and attested on the 5th day of August, 1909, directed to Charles H. G-aus, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany' all and singular the proceedings had in refusing to permit the relator to redeem lands sold by the Comptroller at a tax sale.</p>

<p>Contract — construction of barge canal — change of plans by State— damages — prospective profits.</p> <p>Where a contract for the construction of a portion of the State canal including a lock provides that the State reserves the right to make such additions to or deductions from the work or changes in the plans and specifications as may be necessary and that the .contract shall not he invalid thereby nor any claim he made by the contractor for loss of profits by reason of such change and that he shall make no claim against the State because any estimates made by the State may prove to be .erroneous, he cannot recover for estimated loss of profits where the . State excluded the construction of the lock from the contract owing to the fact that it was found to be physically impossible to build it in that location.</p>

Appeal by the petitioner, Mary H. Bradley, from an order of the. Supreme Court, made at. the Clinton Trial Term and entered in the office of the clerk of the county of Washington on the. lTfch day of January, 1911,. denying the petitioner’s motion for a retaxation of costs. The proceeding was instituted under section 159 of the Village Law (Consol.

<p>Carrier — liability for injury to goods — contract not relieving carrier from liability for negligence — evidence — res ipsa loquitur — receipt stating goods received in good order.</p> <p>General words in a contract of carriage are-not. sufficient to release a ear- • rier from the consequence of its .negligence; if such.a result be intended it must be expressly provided for in the contract.</p> <p>A contract for the transportation of plate glass packed in a box and secured to a platform car by the consignor, providing that the carrier' shall not be liable for damage to the glass by breakage of from any cause, if it should he necessary ■ or was usual to carry such property upon open cars, and having the words “ loaded and secured by the shipper— released,” written upon the face of it, does not relieve the carrier from liability for breakage caused by negligence.</p> <p>While one suing a carrier for injury to goods is under the burden of proving negligence, he is not required to point out the precise act or omission constituting the negligence. Proof of the nature of an accident may be prima facie proof of negligence.</p> <p>Evidence in an action against a carrier to recover the value of plate ¿lass alleged to have been broken by the defendant’s negligence examined, and held, to show, prima facie, that the glass was broken before delivery to the consignee so as.to throw upon the carrier the burden of proving due care.</p> <p>A receipt Which was signed by the cartman without examination in order to obtain possession of the glass does not preclude the -consignee from showing the actual condition of the glass when delivered, j</p>

Motion by the plaintiff, Gottfried Kalbach, as administrator, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in' the first instance, a nonsuit having been granted at the close of the plaintiff’s evidence on a trial at the Erie Trial Term.

Appeal by the defendant, The 0. L. Chapman Cream Separator Works, from adjudgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 1st day of July, .1909, upon the report of a referee appointed to hear, try and determine the issues herein.

Appeal by tbe defendant, The Erie Railroad Company, from a judgment of the Supreme Court' in favor of the plaintiff, entered in the office of the clerk, of the county of Erie on the 29th .day of October, 1910, upon the verdict of a jury for $1,500, and also from an order entered on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Clinton Beckwith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 10th day of May, 1910, upon the verdict of a jury for $2,500, and also from an order entered on the 18 th day of May, 1910, denying the defendant’s mption for a new trial made upon the minutes.

Appeal by the defendant, the Bochester, Syracuse and Eastern Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d- day of December, 1010, upon the verdict of a jury for ninety dollars, and also from an order entered on the 3d day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edward E. Williams, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Lewis on the 28th day of April, 1910, for costs upon a nonsuit granted by the court after a trial at the Lewis Trial Term, and also from an order entered on the 18 th day of April, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Daniel Spitzer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th day of January, 1911, upon the decision of the court rendered after a trial at the Erie Trial Term, a jury having been waived.

<p>Principal' and surety — bond of indemnity — construction — indemnity against liability arising through performance of contract — when surety liable — facts not showing fraud — fraud of principal not chargeable to obligee — motion for deposition denied.</p> <p>The liability of a surety on an indemnity bond depends upon the instrument as illumined by the circumstances which induced it; it is to be measured and determined no differently from that of any other surety.</p> <p>Thus, where the executors of a contractor paid moneys earned under a contract to a nephew of their testator upon his furnishing a bond ■ indemnifying them against any liability arising out of the contract, and' the executors testify that they required the- bond because they apprehended a recovery of damages by one who received personal injuries during the performance of the contract, the surety is hable for the amount ' subsequently recovered in an action for said personal injuries, although . the claim of the person injured was not specifically mentioned in the bond.</p> <p>Evidence in an action on such bond examined, and held, sufficient to justify the jury in finding that the executors were not guilty of fraud in procuring the execution of the bond.</p> <p>Fraud practiced by a principal is not to be imputed to the obligees unless they participated in it or had cognizance of it, or unless a conspiracy between the obligees and the principal is established.</p> <p>The court in its discretion may deny an application to secure the deposition of a party if the action has been long at issue and the moving party defers the motion until the time of trial.</p>

Appeal by the defendant, Arthur E. Stevenson, from a judgment of the.

<p>Motion by the plaintiff, Robert Sutton, as administrator, etc., for a new trial upon arcase 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 Niagara Trial Term in January, 1911.</p>

<p>Appeal by the defendant, The Genesee 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 Monroe on the 22d day of November, 1910, upon the Verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Will — prohate — evidence — declarations of testator — genuineness of signature by mark — death of subscribing, witnesses —proof of testator’s signature.</p> <p>Oral declarations of a testator are admissible to prove the due publication of a written will and also to show the testator’s mental capacity.</p> <p>Where in a proceeding to probate a will the contestant filed objections alleging that the testator did not publish the alleged will in the presence of the subscribing witnesses and that it was not freely and voluntarily executed, conversations between the testator and one of his daughters, who was not a beneficiary under the will, wherein he told her that he had made his will, what its provisions were, who drew it and that one Gr. was one of the witnesses, are admissible to show that , the testator understood the nature of the paper and that no fraud was practiced upon him.</p> <p>But such testimony is not competent as proof of the due execution or continued existence of the will.</p> <p>Opinion evidence as to the genuineness of an ordinary cross mark signature is not admissible.</p> <p>In an action at law signature by mark may be proved by an attestation clause signed by a witness since deceased whose signature is proved.</p> <p>Where the attestation clause of a will sets forth that it was signed and acknowledged by the testator in the presence of the subscribing witnesses, who are'all dead, the fact that the testator, who made his mark, signed the instrument, may be established by proof of the genuineness of the signatures of the subscribing witnesses.</p>

Appeal by the plaintiff, Michael Sereno, from a judgment-of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of. Oswego on the 29th day of .May, 1910-, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s caserón a trial at the Oswego -.

Appeal by the defendants, the Grand Trunk Railway Company of Canada and another, from an order of the Supreme Court, made at the Niagara Special Term and entered in the office of the clerk of the county of Niagara on the 5th day of December, 1910, as resettled by an order entered on the 7th day of January, 1911, granting plaintiff leave to serve an amended complaint, and directing that the plaintiff’s proposed amended complaint, served with the motion papers, stand as and…

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 3d 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 Oneida Trial Term.

Motion by the plaintiff, Martin Sheridan, for a new trial upon a case containing, exceptions, ordered to be heard at the Appellate Division in, the first instance, the verdict of a jury having been rendered in favor of the defendant by a direction of the court at the close of plaintiff’s cáse on a trial at the Monroe Trial Term in October, 1910.

Appeal By the defendant, The Buffalo, Lockport and Rochester Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 9th day of April, 1909, upon the decision of the court rendered after a trial before .the court without a jury. , ■

Appeal by the defendant, The Independent Union Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered.in the office of the clerk of the' county of Brie on the 13th day of June, 1910,- upon the decision of the court rendered after a trial at the Erie Trial Term, the jury having been discharged, 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.

Motion by the plaintiff, Magdalena Groell, for a new trial upon a case containing exceptions, ordered to be beard 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 Erie Trial Term.

Appeal by Michael Oaboni, the Italian consular agent, from a decree of the Surrogate’s Court of the county of Cattaraugus, entered in said Surrogate’s Court on the 12th day of November, 1910, directing'the issuance of letters of administration.

<p>Appeal by the defendant, Henry Draves, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 24th day of January, 1910, upon the verdict of a jury for $175; also from an order entered in said clerk’s office on the 3d day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 24th day of January, 1910, permitting plaintiff to amend his complaint and to file the same nunc pro tunc as of the date of the trial.</p>

<p>Appeal by the plaintiff, The Raymore Realty 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 28th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York,Trial Term.</p>

<p>Appeal by the defendant, the Guardian Trust Company of New York, 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 27th day of October, 1910, upon the report of a referee.</p>

Appeal by tbe plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8 th day of July, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining demurrers to the complaint and dismissing the said complaint.

.Appeal by the defendant. Mss, Doerr <& Carroll Horse 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 20th day of March, 1911, confirming the report of a referee in surplus money proceedings.

Appeal by the defendant, the Phoenix 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 New York on the 28th day of October, 1910, upon the verdict of a jury for $5,000.

Appeal by the plaintiffs, Richard A. Springs and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of February, 1911, setting aside, the verdict of a jury in favor of the plaintiffs and granting a new trial of the action.

Appeal by tbe 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 16th day of June, 1910,‘upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Barney Gardner, from an order of the Supreme Court, made at the New York Special Term, bearing date the 24th day of October, 1910, and entered in the office of the clerk of the comity of New York, denying the defendant’s motion to change the place of trial.

Appeal by the plaintiff, the* North Central Realty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York.on the 6th day of May, 1911, denying the plaintiff’s motion for the appointment of a referee to compute the amount due in a foreclosure action- and staying its prosecution until the termination of a suit to partition the same premises.

<p>Contract — partnership — agreement to pay retiring partner fixed sum out of profits — construction — payment by mistake.</p> <p>Where on the dissolution of a partnership partners who continued the business agreed to pay the retiring partner for his interest in the firm “Five thousand ($5000) dollars per annum, or such less amount as may b.e earned by them for profits from then- business,”', to be paid in equal monthly installments on the first day of each month during- his life, the retiring partner is not entitled to anything if at the ond of a given year no profits have been made in the business, and he must refund any advances that have been made.</p> <p>Advance monthly payments made to the retiring partner during the first part of the year which later showed a loss for the whole year, may be recovered back, for they were made under a mistake of fact.</p> <p>In&raham, P. J., and Miller,, J., dissented in part, with opinion.</p>

<p>Bills and notes — bill of exchange —payment on demand — court — jurisdiction — foreign corporation — when cause of action arises here —pleading — complaint — failure to allege facts — debtor and creditor — preference — failure of debtor to set up counterclaims — failure to show existence of counterclaim — equity — compelling sheriff to do his duty.</p> <p>A bill of exchange drawn on a bank, if payable on demand, is a cheek, and such a bill is payable on demand unless a specific date of payment is mentioned. . ' ■</p> <p>"Where ño specific date of payment is alleged in the pleading it will he assumed that the hill was payable on demand.</p> <p>Where payment of a demand hill of exchange, drawn on a New York hank, is refused, a cause of' action arises in this State in favor of the holder against the drawer, and our courts have jurisdiction of the action, • although hoth par-ties aire foreign corporations.</p> <p>An allegation in a complaint that all of certain “ proceedings and papers are void and of no effect, and were made, issued and filed as aforesaid, with the intent and for the purpose of hindering, delaying and defrauding the creditors” of one defendant, “which intent was participated . in” hy the other defendant, is a mere conclusion, and insufficient to raise the issue of fraud.</p> <p>A complaint which alleges that prior to the recovery hy the plaintiff of two judgments against one of two defendants, the other defendant obtained a judgment against it hy default; that the sheriff made a levy under an attachment in that action; that the judgment and all proceedings therein were void for want of jurisdiction because hoth parties were foreign corporations and because the action, which was on a demand hill drawn hy defendant upon a New York hank, was not to recover damages for breach of a New York contract; that all proceedings therein were for the purpose of defrauding the creditors of the first defendant; that the sheriff refuses to apply the money realized hy the levies under the attachment and execution in that action to the satisfaction of plaintiff’s execution, is demurrable as not stating a cause of action where it appears from the pleading itself that the court did have jurisdiction of the [action between the two defendants, and no facts are alleged showing fraud in the obtaining of the judgment hy default.</p> <p>Since the hill of exchange upon which, the second defendant obtained its judgment was given for full consideration, the judgment thereon and its payment did not defraud the other creditors of the drawer.</p> <p>Even though a debtor is insolvent a creditor is entitled to tire preference acquired in the ordinary course of legal procedure.</p> <p>It is error to overrule demurrers to the complaint on the ground that the drawer of the bill of exchange failed to set up certain counterclaims which could have been interposed in the action thereon where the complaint contains no allegations of facts showing that such counterclaims existed. An allegation that one did exist is a mere legal conclusion.</p> <p>Allegations that the second defendant took possession of the first defendant’s hank during a run upon it at a time when it was insolvent, and that it dissipated the assets and-took large blocks of securities which it still retains, or has disposed of for its own account, aré insufficient to show a counterclaim in favor of the first defendant in the action on the hill of exchange in the absence of an allegation that the second defend-, ant’ acted without the consent of the first defendant or that the money and securities paid out were not for its benefit or the benefit of its creditors.</p> <p>Even if the securities had been wrongfully converted, that would not have constituted a counterclaim in the action on the hill of exchange.</p> <p>It seems, that the sheriff is hound to levy under attachments in the order in which they are received. If he is not hound to do this, the remedy of one aggrieved by reason of his levying under another attachment first is by motion to compel the sheriff to do his duty and not by a suit in equity.</p>

<p>Appeal by- the defendants, Virginia Keahon, as administra-trix, etc. ,■ and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of .the' county of New York on the 30th day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of December, 1909, denying the said defendants’ motion for a new trial made upon the minutes,</p>

Appeal by the .plaintiff, Henry Com, 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 26th 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. • ' ■ '

Appeal by Stanley Dwight, 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 16th day. of March, 1911, denying a motion for a commission to take testimony upon written interrogatories.

Separate appeals by the defendants, Joseph H. Hoadley and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 13th day of April, 1909, upon the verdict of a jury, and also from respective orders entered in said clerk’s office on the 16th day. of April, 1909, denying the defendants’ respective motions for a new trial made upon the minutes.

Appeal by tbe defendant, Minnie Pfeiffer, from an order of tbe Supreme Court, made at tbe New York Special Term and entered in tbe office of the clerk of tbe county of New York on the 18th day of May,-1911,- denying the'defendant’s motion, to strike out certain allegations in the complaint as irrelevant or redundant or both.

Appeal by the defendant, the Sayles-Zahh 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 lYth day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes in an action to recover damages for breach of a written contract of employment.

Appeal by Annie Fuchs and others, owners,- from an order 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 February, 1910, overruling objections to the supplemental and amended report of commissioners of estimate and assessment, with notice of an intention to bring up for review an intermediate order-entered on the 12th day of October, 1908, denying the appellants’ motion to confirm a report of…

Appeal by the plaintiff, Louis Mischner, 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 in favor of the plaintiff entered upon the verdict of a jury and directing a new trial in an action for damages for trespass.

Appeal by the defendants, John T. Rainier 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 12th day of January, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the defendants' and directing a new trial.

Appeal by the relator, Browning, King’ & Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of February, 1911, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, Isidoro Campisi, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 19th day of January, 1910, convicting him of the crime of extortion.

ükoss-appeals by the plaintiff, John S'. Jones, and the defendants, George J. Gould 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 24th day of March, 1911.

<p>Appeal by the plaintiff,-Walter Schultze, from an order of the Supreme Court, made at the Hew Tort Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1911.</p>

<p>Appeal by the defendants, The Bidgway Company 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 3d day of March, 1911, granting the plaintiff’s motion for judgment on the pleadings against the appellants, and also from an order entered on the 28th day of March, 1911, denying the said defendants leave to serve, a proposed answer upon the plaintiff.</p>

Appeal by • the ■ defendants, the Niagara, Lockport and Ontario Power Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of January, 1911, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendants’ demurrers to the amended complaint.

Appeal by the River Crest Sanitarium 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 6th day of March, 1911, directing the committee of the estate of .an incompetent person to pay certain moneys for the support and maintenance of the incompetent.

Appeal by the defendants, James C. Oreelman, president, 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 28th day of March, 1911, as amended and resettled by two orders entered in said clerk’s office respectively on the 26th day of April, 1911, and the 5th day of May, 1911, granting a motion for a peremptory writ of mandamus.

Appeal by the defendants, William 0. Allison and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of May, 1910, denying the defendants’ motion for a new trial,- as resettled, by an order entered on the 14th day of June,, 1910, and also ■ from an order made at the…

Appeal by the plaintiff, the Hammond Packing 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 2⅞1 day of January, 1911, 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 plaintiff, Chartered Bant of India, Australia and China, from an.order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of March, 1911, directing the service of a further hill of particulars.

<p>Carrier — connecting carrier — negligence — agency — connecting carrier as insurer — throng'll hill of lading inures to benefit of all carriers — shipping of explosive acids^- failure to give notice to carrier — leaking car — duty of railroad — negligence.</p> <p>A connecting carrier'is not chargeable with any knowledge regarding the contents of the shipment that may h&ve been acquired by the initial carrier but not communicated to it.</p> <p>An initial carrier is the agent of the shipper, not of the connecting carrier with respect to billing and delivering the goods to the latter.</p> <p>A connecting carrier is not an insurer of goods against damages resulting thereto while in its possession but from causes occurring before the goods were delivered to it and for which it was not responsible. At most it is only required to exercise reasonable care to save the property from further damage after its condition has been discovered or should have been discovered in the exercise of reasonable care.</p> <p>Each connecting carrier on a through bill of lading is entitled to the protection afforded by the shipping contract.</p> <p>At common law the duty of giving notice that acids delivered to a common carrier for shipment are explosive and dangerous devolves upon the shipper.</p> <p>Plaintiff’s assignor, a corporation engaged in the- manufacture and sale of chemicals, was accustomed to ship carloads of drugs and acids over the Central Railroad of New Jersey. The railroad furnished the cars and-they were loaded by the shipper, who also filled out the bills of lading. In July, 1903, a car was loaded with carboys and cases of nitric and other acids, ammonia and drugs in the usual manner and consigned to San Francisco by way of defendant railroads/ It was delivered to the Central Railroad of New Jersey as the initial carrier. A month previous this railroad had filed 'with the Interstate Commerce Commission a freight classification, which stated in a note that nitric acid carboys would not be accepted for transportation unless packed in non-combustible dunnage. The shipment in question was not so packed. Other of the acids shipped in the ear were inflammable, explosive and dangerous, but ho notice of this was given to the carrier, although the bill of lading which plaintiff’s assignor filled out stated that one- shipping such goods without a written disclosure to the carrier of' their nature should be liable for the loss or damages thereby. The car was simply marked “Acids — Handle carefully.” When the car was received by the Lake Shore and Michigan Southern Railway Company it was found that the acids were leaking, and three hours after, and before it had been moved or interfered with by the railway, the. leaking acids set fire to it and its contents were destroyed.</p> <p>Held, in an action to recover the value of the contents from the connecting carrier on the ground that it was negligent in not transferring the goods when it discovered that the acid was leaking, that plaintiff failed to show a cause of action against the carrier and that a judgment in her favor should be reversed.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 28th day of December, 1910, directed to the Public Service Commission for the First District of the State of New York and to William E. Willcox and others, as the commissioners or members of said Commission, directing them to certify'and return to the office of the clerk of the county of New York all and singular their proceedings had in denying the relators’ application to issue certain stock and bonds.</p>

Appeal by the defendant, William Beard, 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 March, 1911, as resettled, granting the plaintiff’s motion for judgment on the pleadings.

Appeal by the defendant, the Ernst Wiener 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 25th day of November,. 1910, upon the verdict of a jury, and also from an Order entered in said clerk’s office on the 8th day of December, 1910, .denying- the defendant’s motion for a new trial made upon the minutes.

■ Cross-appeal's by George Ringler & Company and others, and by the petitioners, Anna- Hachemeister and J. Edward Jetter, as administrators, etc., and others, from parts of an order of the Supreme Court, made at the Hew York Special Term and entered in the office Of the clerk of the county of New York on the 8th day of May, 1911. :

Appeal by the defendant, Benjamin Altman, 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 9th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes. ■ . ■

. Appeal by the defendant, The New York Central and Hudson River Railroad 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 9 th day of March, 1911, sustaining the plaintiff’s demurrer to a partial defense. ,

<p>Appeal by the defendant, the Bowling Green Trust Company froín a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of February, 1910, upon the verdict of a jury on the first cause of action and upon a verdict directed by the court on the second cause of action, and also from an order entered in said clerk’s office on the 18th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Edward V. Strodl, 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 30th day of December, 1910, upon the dismissal of the complaint by direction of the court at the close of the plaintiff ’s case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 30th day of June, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Lloyd G. McOrum, 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 17th . day of December, 1910, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, George McAneny, as president, 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 12th day of April, 1911, granting the petitionér’s motion for a 'peremptory writ of mandamus commanding the defendant to restore the petitioner to the position of foreman cabinetmaker in the bureau of public buildings and offices.

<p>Husband, and wife — conviction of husband as disorderly person — bond conditioned on support of wife — defenses to action thereon — evidence.</p> <p>Payment to a wife for the support of herself and children, of the full amount required by a bond given by her husband pursuant to section 686 of the Greater Hew York charter upon his conviction as a disorderly person, is a complete defense to ■ an action on the bond and part . payment is a partial defense.</p> <p>This is so, although the bond in terms was conditioned on the payment of the amount named to the commissioner of public charities “for and toward the support ” of the wife and children.</p> <p>In an action on the bond the determination of the magistrate with respect to the amount required for the wife’s support is not open to ' inquiry.</p> <p>' A statement by the husband in an action on the bond that he provided for his wife is merely a conclusion and is properly stricken from the evidence.</p>

Appeal by the plaintiff, Harry B. Schepps, from an order of the Supreme Court, made at the Hew York Special Term ■ and entered in- the office of the clerk of the county of New York on the 29th day of March, 19X1, directing the plaintiff to serve a further bill of particulars.

Appeal by the plaintiff, John Schepps, 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 March, 1911, directing the plaintiff to serve a further bill of particulars.

<p>Reference — request by referee for advance fees —removal!— conditions.</p> <p>A referee "who during tire progress of the litigation asks each party to advance him a sum on account of his fees should he removed. Such request is improper.</p> <p>On granting a motion for the removal of the’referee there should, how- ' ever, he imposed as a condition that the testimony of -witnesses now heyond the jurisdiction of the court which was taken before him might he read in evidence before the new referee subject to objections as to competency and relevancy.</p>

Appeal by the plaintiffs, Michael Lessler and another, from an order of the Appellate Term, entered in the office of the clerk of the county of New York on' the 5th day of January, 1911, affirming a judgment of the Municipal Court of the city of New York in favor of the defendant entered on the 4th day of May, 1910. Determination and judgment reversed and new trial ordered, costs in all courts to abide event, on dissenting opinion of GfiEGERiCH, J., at Appellate Term.'

Appeal by the defendant, the Consolidated Fire Alarm Company, from an order directing that a peremptory writ of man-damns issne commanding the appellant, its officers and agents to permit the relator to examine and inspect its hooks, papers, documents and records and to take extracts therefrom.

<p>Appeal by the plaintiff, Patrick Kennedy, 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 27th 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 New York Trial Term.</p>

. Appeal by the plaintiff, Myrtle M. Thompson, 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 16th day of February, 1911, affirming a judgment of the Municipal Court of the city of New York in favor of the defendant rendered on the 29th day of October, 1910.

Appeal by the defendant, Kate Curtis, from an order of the Silpreme 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 defendant’s motion 'to change the place of' trial from the county of New York to the county of Monroe..

Appeal by the defendant,- the Pennsylvania Cement 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 22d day of March, 1911, denying the defendant’s motion to vacate a warrant of attachment.

Appeal by the plaintiff, G-ustav Danzer,. from a judgment of the Supreme Court in favor of defendants, entered in the office of the clerk of the county of Kings on the 28th day of May, 1910, .upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of June, 1910, denying, the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, August 0. Scharmann, 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 January, 1911, upon the decision of the court, rendered after a trial before the court without a jury, at the Kings County Trial Term.</p>

<p>Appeal by John 0. McGuire and others, comprising the Municipal Civil Service Commission of the City of New York, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of April, 1911, granting ■ the petitioner’s motion for a peremptory writ of mandamus. ' .</p>

<p>Contract — municipal contract — construction of highway — extras — engineer as arbitrator — when decision of engineer conclusive — written order for extra work.</p> <p>Where the contract for the construction of a public highway provided that all the work should be done for a lump sum, and provided for items only in case there were increases or decreases of the work resulting from changes in the plans and specifications, and stated that the engineer’s estimate of the Work appearing in the specifications was approximate only, and that it was so agreed between the parties, the contractor is not entitled to extra compensation because the surplus excavation actually done was greater than the estimate.</p> <p>Where the contract provided that the engineer in charge should determine the amount of the several kinds of work to be paid for under the contract, should determine all questions relating to the work and to the execution of the contract, and that his estimate and decision should be conclusive on the contractor, and that his certificate should he a condition precedent to the contractor’s right to receive money, the certificate of the engineer is binding on the contractor in the absence of fraud or palpable mistake appearing on its face.</p> <p>By said provision the engineer was made the arbitrator between the parties.</p> <p>Where the contract provided a certain sum per cubic yard per mile for extra “ overhaul ” due to changes in the plans and specifications, a decision of the engineer that the amount to be allowed was computable at a mileage rate only for the actual distance of the. haul, should not be disturbed by the court. 1 ,</p> <p>The result of an arbitration may not be impeached for mere error of judgment, and, in the absence of fraud, the court has generally no power to interfere because of a mistake of law on the part of the arbitrator.</p> <p>Where, however, ah engineer through an erroneous interpretation of the contract has excluded from his final certificate work actually done and required by the contract,, the certificate and decision are not final and binding on the contractor.</p> <p>The decision of the engineer as to the meaning of the clause providing compensation for overhaul was not palpably erroneous.</p> <p>The engineer is not justified in making a deduction from the lump sum due the contractor because it wa.s found unnecessary to haul the surplus excavated material as far as had at first been contemplated, where no change was made in the contract or the specifications, but there was merely a change in the place to which the material was hauled.</p> <p>Where a municipal contract provides that no claim shall be made for extra work unless it shall have been done pursuant to a written order of the engineer, the contractor cannot recover for extra work done without such an order unless'the municipality waives the provision.</p> <p>Such provision cannot be waived by the engineer.</p> <p>The rule that where a contractor is directed by the engineer to do over again work already done properly, he may comply under protest and later recover the reasonable value thereof, does not apply where the directions of the engineer are unquestionably beyond the contract requirements and not justified by its provisions.</p>

Appeal by the plaintiff, Sam Sheingold, from an order of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 6th day of February, 1911, setting aside the verdict of a jury in favor of the plaintiff.

Appeal by Elijah M. Yerkes and others from an order of the Supreme Court, made at the Westchester Special Term and entered in the .office of the clerk of the county of Westchester on the 10th day of January, 1911, refusing to confirm the report of commissioners, of estimate and assessment as to parcel No. 5 and directing a -rehearing as to said parcel, and also from an intermediate order entered in said clerk’s office on- the 10th . day of June, 1910, permitting certain…

' Appeal by the defendants, Arthur J. Nathan and others, . from a judgment of thel Supreme Court in favor of the plain.tiff, entered in the office of the clerk of the county of Kings on the 9th day of February,! 1910, upon.the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on ' the 14th day of February,! 1910, denying the defendants’'motion for a new trial made upon the minutes.

Appeal by the plaintiff, Clifford E. Meade, from a judgment o of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the Jth day of February, 1911. -

Appeal by the defendant, Hammond and Sloane, Incorporated, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of December, 1910, upon the decision of the .court rendered after a trial at the Kings County Special Term overruling- the said defendant’s demurrer to the eomplaint. ‘

Appeal by the relator, Veta Genna, 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, dismissing a writ of habeas corpus.

Appeal by the defendant, George W. Davison, from a judgment of the Supreme Court in favor of the plaintiff, entered. in the office of the clerk of the county of Kings on the 5th day of November, 1910, upon the verdict of a jury for $1,580, and also from two orders entered in said clerk’s office on the 18th and 21st days of November, 1910, respectively, denying the defendant’s motions for a new trial made upon the minutes.

Appeal by the. plaintiff, the Troy Public Works Company, from part of a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 9th day of January, 1911, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Application for an alternative writ of prohibition.</p>

Appeal by the plaintiff, Samuel Schindler, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant; rendered on the 7th day of November, 1910.

Appeal by the plaintiff, Selina Weeks, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 28th day of October, 1910, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits.

<p>. Appeal by the defendant, Martin Rafalovitz, etc., from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered on the 17th day of November, 1910.</p>

<p>Will — bequests in excess of personal estate — -wien egacies charge upon realty — compensation of. executors — abatement.</p> <p>Where a testator who drew his own will containing bequests aggregating $12,000 knew at the time that his entire personal estate was less than $1,000 and was insufficient to pay even the compensation which he gave to his executors, it is evident that he intended the legacies tobe a charge upon his real and personal property taken together even though the will gave no express power of sale to the executors. Hence, where the executors sold the realty, the legacies are a charge upon the proceeds.</p> <p>Where the will provided that the executors were to have $150 each for services to be rendered in connection with the library of the defendant and were to “receive Five hundred dollars each to be executor and trix of this my last will and testament,” the sum given to the executors was not a bequest but a provision for then- compensation; and hence the sums should be paid in full and do not abate ratably with the legacies.</p>

Appeal by the plaintiff, Alphonse Fahlbusch, 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 1st day of February, 1911, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office the same day as resettled by an order entered on the 2d day of March, 1911 denying the plaintiff’s motion for a new trial made upon, the minutes. ■

Appeal by the defendant, Arthur McMullen, 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 2d day of April, 1910, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the’31st day of March, 1910, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Long Island 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 'Suffolk on the 26th day of April, 1910, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 22d day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Frederick Henry Bruckel, 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 26th day of November, 1909, upon the dismissal of the com: plaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term.

Appeal by the defendant, Llewelyn L. Powell, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the llth day of February, 1911.

. Appeal by the defendant, The Terry and Tench Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of November, 1910, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 9th day of November, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York, Susquehanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the Yth day of February, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, the Eclipse Silk Manufacturing Company, 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 25th day of January, 1911, upon the dismissal of the complaint by ' direction of the court at the opening of the case on a trial at the Kings County Trial Term.</p>

Appeal by the defendant, James F. Fargo, as treasurer, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 22d day of September, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of May, 1910, denying the defendant’s motions to set aside the verdict and for a new trial and to reduce the verdict.

Appeal by the defendant, Edward IT. Roddy, from an order of the County Court of Nassau county, entei’ed in the office of the clerk of said county on the 26th day of November, 1910, reversing a judgment of the Justice’s Court in favor of the defendant, and directing a new- trial before the same justice, and' also from a judgment entered in said clerk’s office on the same day upon said order of reversal.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 10th day of November, 1910, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the Ith day of November, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Lien ——r mechanic’s lien — notice — complaint — effect of stipulation.</p> <p>Where in an action to foreclose a mechanic’s lien it -was stipulated by all parties that there -was a certain sum due from the owner to the contractor applicable to the payment of liens duly filed and that the -work, labor and services for -which the several liens -were claimed had been performed to the satisfaction of the owners and contractor, the only question left to be decided is the validity and priority of the several ]iens as between plaintiff and the other lienors.</p> <p>A notice of lien must state that so much labor has been performed, or so much material has been furnished for the work on the property on which, the lien is sought, and that a certain amount remains unpaid and if it fail to do so it is fatally defective.</p> <p>Although a notice of lien states the full amount of work to be done under the lienor’s contract, the price to be paid, states that the work began and ended at given dates and names the amount unpaid for the labor performed and to be performed and the material furnished and to be furnished, it is fatally defective, if it do not allege that all or any of the work and materials have been furnished.</p> <p>An averment of the complaint that “the time when the first and last items of work were performed and materials furnished is work began Oct. 29, 1908, ended March 81st, 1909,” is not sufficient as an allegation that all of the work has been performed and all the materials furnished which went to make up the contract price.</p> <p>A stipulation that the work, labor and services of the alleged lienors had been performed to the satisfaction of the owners and contractor does not supply a failure to aver that the work had been completed and the materials furnished for which the plaintiff claims a hen.</p> <p>Where the amount applicable to the payment of Mens is insufficient to pay those coneededly valid, the costs of an appeal from a judgment declaring appellant’s lien invalid should be paid by him personally on the affirmance of the judgment.</p>

<p>Appeal by the defendant, The Chelsea Fibre Mills, a Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day óf November, 1910, upon the verdict of a jury for $500, and also from an order entered in said .clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Morris Kronenberg. and others, etc., from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Kings on the 5th day of April, 1910, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 4th day of April, 1910,.denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of Mount Yernon, from a judgment of the Supreme Court in fayor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of September, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Commercial 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 Kings 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 11th day of November, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 7 th day of December, 1910, upon the verdict of a jury for $150.

<p>Appeal by the relator, William L. Woodill, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 10th day of May, 1910, upon the decision of the court, rendered after a trial of the Kings County Special Term, sustaining the] defendants’ demurrer to an alternative writ of mandamus on the ground that it does not state facets sufficient to entitle relator to the redress sought.</p>

Cross-appeals by the plaintiff, Catharine E. Sheridan,, suing, etc., and the defendant, Charles Cardwell, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on-the 17 th day of March, 1910. . A reargument was ordered in January, 1911. (See; 142 App. Div. 947.) ,:

Appeal by the' defendants, the Mechanics and Traders Bank and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of December, 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 22d day of December, 1910, granting the plaintiffs’ motion to amend the complaint.

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 Kings on the 19th day of January, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 31st day of January, 1911, denying the defendant’s motion for a new tripl made upon the minutes.

Appeal by Walter A. Bridgeman - from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on-the 24th day of January, 1911, judicially settling the accounts of the executors and trustees under the will of Alfred Bridgeman, deceased.

<p>Appeal — order reforming order — corporation—forfeiture of stock — warning notice — action.by board of directors — application to review election — provisions in order requiring new election.</p> <p>It seems, that an appeal from an order merely resettling and correcting the form of a prior order brings up nothing for review.</p> <p>Forfeitures are not favored by the law, and parties seeking to enforce them must pursue exactly all the necessary requirements.</p> <p>Forfeiture of corporate stock for failure to pay installments of the subscription price is a corporate act involving the exercise of judgment and discretion.</p> <p>Where a corporation declares a forfeiture of stock under section 54 of the Stock Corporation Law, providing that if default be made in the payment of any installment of the subscription price the board of directors may declare the stock ánd previous payment forfeited “after the expiration of sixty days from the service on the defaulting stockholder,. * * ⅜ of a written notice requiring him to make payment within sixty days * * * and stating that in case of failure to do so, his stock” will be forfeited, it is necessary for the board of directors itself to determine whether such notice shall be given and when, in order to make the forfeiture valid.</p> <p>Where the resolution providing for the warning notice was passed at a meeting of the board of directors at which there was not a quorum present any attempted forfeiture thereunder is void.</p> <p>WTiere in all the proceedings and the minutes of a corporation the meeting at which the warning notice was directed to be sent is characterized as a meeting of the board of directors, the corporation,is estopped from asserting, for the purpose of validating the notice, that it was a meeting of the executive committee of the board.</p> <p>Where on an application to review an election of directors of the corporation, at which the petitioners were not allowed to vote on stock alleged to have been- forfeited, it is determined that the attempted forfeiture was invalid, the court should order a new election rather than declare the candidates of the petitioners elected.</p> <p>It is also proper for the court to provide that all persons who are stockholders when the new election is held shall be allowed' to vote thereat and to restrain the issuance of new stock or bonds pending the election.</p>

Appeals by Jacob Leitner and others, by the Railways Company General and by the New York and Westchester Town Site Company 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 20th day of March, 1911. Also, an appeal by the petitioners, Robert E. Robinson and others, from certain parts of said order entered as aforesaid.

Appeal by Luise 0. Knauth from an order of the County Court of Rockland county, entered in the office of the clerk of said county on the 29th day of March, 1910, affirming'the determination of commissioners. .

<p>Negligence — Highway;—collision of horse and automobile.</p> <p>Where in an action to recover for damages to an automobile it appears that plaintiff while driving his car along the left-hand side of a country road, saw a horseman coming rapidly toward him who was also on the wrong side of the road and turned his car so as to go to the right, and in so doing swung across the path of the horseman, who ran into him, the negligence of the horseman is established; but a judgment entered on a verdict.in defendant’s favor will not be reversed, for there was sufficient evidence of contributory negligence on .the part of the plaintiff to sustain the verdict. .</p> <p>Hirschberu, J., dissented.</p>

Appeal by the plaintiff, August G-aetjens, 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 3d day of April, 1911, denying the plaintiff’s motion for a new taxation of costs. '

<p>APPLICATION for the removal of the respondent from the office of trustee of the village of Ossining. ...</p>

Appeal by the relators, George Karl and another, .from an order of the Supreme Court, made at the Rensselaer Special Term and .entered in the office of the clerk .of the county of Albany on the 30th day of July, 1910; denying the relators’ motion for a writ of-mandamus compelling the respondent to reconstruct its street railway to the village of'West Albany in Albany county, New York.

Appeal by‘the defendants, John E. Kraft and others, commissioners, etc., from an order of the Supreme Court, made at the Albany Special Term and entered- in the office of the clerk of the county of Albany on the 2d day of May, 1911, directing the issuance of a peremptory writ of mandamus requiring the defendants to rescind and revoke a certain alleged illegal reso--lution passed on or about the 14th of March, 1911, which classified as exempt the position of examiner of stock…

■ Appeal by the defendants, Anna M. Kennedy 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 Ulster on the 21st day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of November, 1910, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Kinser Construction Company, 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 Saratoga on the 1st day of May, 1910, denying the defendant’s motion for a retaxation of costs.

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

Appeal by the plaintiffs, Benjamin 0. Brewster and another, 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 28th day of February, 1911, granting the defendant’s motion for judgment on the: pleadings, and also from a judgment entered upon said order in the office of the clerk of the county of Rensselaer on the 2d day of March, 1911.

Appeal by the defendant, Alfred Nelson, from a judgment of the County Court of Albany county, rendered against the defendant on the 2d day of March, 1911, convicting him of the crime of manslaughter in the first degree upon which he was sentenced to imprisonment at Dannemorá for not less than ten years or more than nineteen years and six months.

Appeal by the defendant, Eaymond L. Cline, from a judgment of the Supreme Court in favor of the plaintiff, entered in the„ office of the clerk of the county of Montgomery on the 6th day of-July, 1910, upon the verdict of a jury for $800, 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 relator, the.Keeseville, Ausable Chasm and Lake Champlain Railroad Company, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Clinton on the 5th day of- May, 1911, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Chenango county, entered in the office of the clerk of said county on the 28th day of September, 1910, sustaining the defendant’s demurrer to an indictment for forgery in the first degree.

<p>‘Venue — convenience of witnesses — action for'breach of warranty testimony not cumulative.</p> <p>Where, in an action for breach of warranty as to the condition of a horse purchased by the plaintiff from the defendant, the latter denies the warranty or that the animal was unsound when sold, the condition of the horse at the time of sale and until the commencement of the action is material and must be proven by tl)e plaintiff. Hence, the venue in such action should not be changed to the county of the defendant’s residence on the ground of convenience of witnesses where the greater number of disinterested witnesses as to the warranty and the condition of the horse at and following the sale reside.in or near the county where the venue is laid.</p> <p>Kellogg- and Sewell, JJ., dissented.</p>

<p>Insurance — insurance on life of child. — statute construed — amount of insurance.</p> <p>Section 55 of the Insurance Law (Laws of 1892, chap. 690), allowing- a person liable for- the support of a child to take out a yearly renewable policy of insurance thereon not exceeding certain sums named dependent upon the age of the child, being in derogation of the common law, does not prevent a person liable for the support of such child from taking out several such policies, although the total amount of the insurance is greater than that prescribed by the statute, Hence, there can be a recovery on such policy up to the statutory limit, although other similar policies on the life of the same child have been paid by other companies.</p>

<p>Appeal by William Sohmer, Comptroller of the State of New York, from a decree of the Surrogate’s Court of the county of Chemung, entered in said Surrogate’s Court on the 11th day of March, 1911, affirming a prior order of said court and adjudging certain transfers of ,. property to the Amot Art Gallery not taxable.</p>

<p>"Witness — contract — public policy — evidence — oral evidence to vary written instrument.</p> <p>An agreement to pay an expert witness a stated sum ior appraising the value of the property and equipment of a gas company and testifying thereto, provided that his estimate should be substantially less than the estimate of the expert for the gas company, is against public policy and unenforcible.</p> <p>But the courts will be slow to find such a provision in a contract, especially in one made by the State.</p> <p>It seems, that where an. expert witness sent a letter to counsel for the State in a certain case, stating as á memorandum of the understanding between the parties that the writer was to serve as an expert witness for the State in appraising certain gas property and was tó be prepared to answer questions so far as his knowledge permitted and setting forth the amounts to be paid for his services, and that if the Legislature failed to pass the necessary appropriation he might collect from the State, and the counsel for the State replied by letter saying, “ The terms and conditions set' down * * * are in accordance with my understanding and are satisfactory,” the two letters make a complete contract which cannot be varied by oral testimony.</p> <p>Whére the court finds that there was an oral stipulation that the expert’s estimate should be substantially lower than that of the gas company, that as made it was practically the- same and, therefore, useless to the State, and awards the claimant only the amount of his retainer and expenses, but nothing for services, the judgment will be reversed. If ’the oral stipulation be part of the contract the claimant should receive • nothing; if not, he should receive full compensation.</p>

Appeal by the plaintiff, John McDowell, from a judgment of the Supreme Court in favor of the defendant insurance company, entered in the office of the clerk of the county of Ulster oil the 28th day of December, 1910, upon the. decision of the court, rendered after a trial before the court without a. jury at the Ulster Trial Term, dismissing' the complaint Upon the merits. •

<p>Motor vehicle — negligence — failure to register machine.</p> <p>The mere violation of a statute is not per se proofcof negligence on the part of the offender so as to subject him to an action in favor of a private individual who has no interest in the observance of the statute.</p> <p>The provisions of the Highway Law requiring the owner of a motor vehicle to register the same and to display the registration number thereon are not intended to afford greater protection to the public.</p> <p>In an action to recover for personal injuries caused by the defendant’s alleged negligence in the operation of his automobile it is error to charge the jury that they may consider defendant’s failure to register his machine, in violation of law, as prima facie proof of negligence.</p> <p>The unlawful act of defendant in failing to register his ear did not contribute to the accident.</p> <p>Betts, J., dissented.</p>

Appeal by the plaintiff, Lillian Lynch, a minor, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 9th 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 Albany Trial Term. The dismissal was upon the sole,ground that the.plaintiff had failed to show that the '.defendant was chargeable with negligence.

<p>Banks — payment of forged check — Negotiable Instruments Law, section 326, construed — Statute of Limitations — failure to give notice of forgery within one year — principal and agent — delivery of vouchers to president of corporation — corporation — when notice to directors not notice to corporation — pleading — answer— allegations making section 326 of the Negotiable Instruments Law available.</p> <p>Section 326 of the Negotiable Instruments Law, providing that no bank shall be liable to a depositor for the payment of. a forged check unless within one-year after the return to the depositor of the voucher of such payment he shall notify the bank that the check was forged, is in the nature of a statute of Kmitations and must be pleaded in order to be available; it does not create: a condition precedent which must be pleaded by the plaintiff and avoided by him.</p> <p>Where a trust company received a deposit from a corporation through its president accompanied with a certified copy of a resolution of the board of directors authorizing the deposit to be drawn only on checks signed by both the president and treasurer, and after the president had drawn the money on cheeks on which he had forged the treasurer’s name and the trust company returned to him the pass book which he had left with it to be balanced; together with the vouchers for the money drawn, the vouchers were “returned” to the corporation within the purview of section 326 of the Negotiable Instruments Law, although the president as agent of the corporation was engaged in defrauding it. ■</p> <p>But information regarding the-forgery communicated incidentally by the treasurer of the corporation to a director and member of the executive - committee of the defendant trust company, he being also its counsel, is not notice to the trust company where he was not at the time representing it as its agent in the particular matter and did not communicate his knowledge to its officers or board of directors, and the notice was not given for the purpose of calling the forgery to the attention of the trust company. Hence, where the trust company has received no other notice . of the forgery for a period of one year following the return of the vouchers by it, there can be no recovery by the corporation, or its receiver of the amount paid on the forged- checks.</p> <p>Where the answer of a bank sued for the recovery of money paid by it' on ■ forged checks states facts showing that no objection to the payment was made until more than one year had elapsed since the bank book was balanced and delivered with the checks to the president of the depositor, sufficient facts are stated to enable it to take the defense prescribed by said section 326 of the Negotiable Instruments Law, although that section is not specifically referred to.</p> <p>It is unnecessary in a pleading to recite or to refer to a public statute of our own State, as the court takes judicial notice of its existence. All that is required to bring the ease within such statute is to set out the necessary facts.</p> <p>Scott, J., and In&raham, P. J., dissented in part, with opinion.</p>

Appeal by tbe plaintiffs, Horace White and others¿ as executors, etc., from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 12th day of December, 1908, upon- the report of a referee dismissing the, complaint, upon the merits, except so much of said judgment ..as. dismisses the complaint :as to the defendant Camille Weidenfeld.

<p>Corporation — : defense of usury — agreement not usurious.</p> <p>Where a testator directed Ms executors to continue Ms business, and they subsequently organized a corporation wMeh took over the property of the estate for that purpose, and, by special act of legislation, it -was appointed administrator of the estate with the will annexed, it is witMn section 374 of the General BusMess Law providing that. no corporation shall mterpose the defense of usury in any action. Hence, having borrowed money to meet the necessities of the business, it cannot refuse to repay the same Upon the ground that the transaction was usurious.</p> <p>Moreover, the loan was hot tainted with usury although the directors of the corporation, in order to induce- the plaintiff to make it at a time when he was unable to do so without selling securities wMch he expected to’ advance in value, agreed to pay Mm a sum which should represent the rise in market value of the securities between the date of the loan and the date of repayment, in addition to five and one-half per cent.</p> <p>Ihb-baham, P. J., dissented, with opinion.</p>

Arpe at, by the defendants, Frederick T. Barry and others, from a judgment of the Supreme Oonrt in favor of the plaintiffs, entered- in the office of the clerk of the county of New York on the 9th day of January, 1911, upon the decision of the court rendered after a trial at the New YorkSpecial Term, and also (as stated in the notice of appeal) from such judgment as resettled by an order entered on the 26th ■ day of January, ■1911.

Appeal by the defendants, Mary R. Washburn and another, as executors, etc., and Mary R. Washburn, individually, from a judgment of the Supreme Court, in favor of the plaintiff and certain of the defendants, entered in the office of the.clerk of the county of New York on the 18th day of January, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

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 29th day of June, 1910, denying á motion for the issuance of a subpoena, pursuant to section 618a of the Code of Criminal Procedure.

<p>Appeal by the defendants, ’The F. G-. Brewster Company and others, from á 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 1st day of May, 1911, upon the decision of the court,- rendered after a trial at the New York Special Term, with notice of an intention to bring up for review an order appointing a receiver and an order granting an extra allowance, which orders were entered in said clerk’s office on the 37th' day of April, 1911.</p>

Appeal by thé defendant, The Sicilian Asphalt Paving 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 New York on the 8th day of July, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overntling the said defendant’s demurrer to the complaint on the ground that the complaint does not state facts sufficiént to constitute a cause of action as to…

Appeal by the defendants, David H. Van Name 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 3d day óf May, 1911, denying said defendants’ motion to vacate an order for the examination of the said defendants before trial.

Appeal by the defendant, F. Augustus Heinze, from an order of the Supreme Court, made at the New York Special ' Term and entered in the office of the clerk of the county of New York on the 8th day of June, 1911, denying defendant’s motion for a retaxation of costs.

<p>Motion and order — recital that order was entered on appellant’s motion — when recital mot conclusive — trial — practice where answer to legal action sets up equitable counterclaim — stay — pendency of foreign action involving same issues.</p> <p>A recital that an order was entered on motion of defendant’s attorneys does not bind the defendant if it be evident upon its face when read in conjunction with the notice of motion that the recital does not indi-' cate that he was satisfied with the order.</p> <p>Where, in answering the complaint in an action on a promissory note, the defendant, among other things, sets up an equitable counterclaim, the equitable issues may be sent to- Special Term for trial. But, it seems, that the other issues raised by denials of the allegations of the complaint should hot be sent to Special Term for trial..</p> <p>Where, in answer to an action by a trustee in bankruptcy on a promissory note, the maker, a corporation, sets up as an equitable counterclaim that the bankrupt to whom the note belonged, being an officer of the defendant, taking an active part in its management and trusted by it, became interested with other persons to whom property of the defendant . was sold, became a secret purchaser thereof and was entitled under his agreements with the vendee to share in the profits, without the knowledge of the defendant, and it further appears that the defendant has brought a suit in equity in the English courts against the vendees, who are subjects of Great Britain, and has made the plaintiff, as trustee, a defendant therein, in which suit the defendant claims to be entitled to receive whatever sum may be due the bankrupt or his estate from the vendees so that the issues in the foreign suit are identical with those raised by the equitable counterclaim, save that in the foreign action the whole question as to the claims of the defendant against the bankrupt’s estate can be determined, whereas in the present action the claim can be only asserted as an offset, the court in its discretion should grant the stay of the action pending the trial of the foreign suit, where it appears that the issues can be there tried as soon as in the present action, subject, however, to a proviso that if the foreign suit be unreasonably delayed the defendant may move to vacate the stay.</p> <p>DowliNG-, J., dissented.</p>

Appeal by the defendant, Carabaya Rubber and Navigation 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 17th day of March, 1911, directing that the issues raised by the pleadings herein be sent to the Special Term for trial, and denying the said defendant’s motion for a stay.

<p>False imprisonment — probable cause — burden of proof — procuring arrest and participating therein — when corporation liable for act of special officer.</p> <p>The plaintiff in an action for false imprisonment is not under the burden of proving lack of probable cause. This is true, although he alleges both malice and lack of probable cause, such allegations being unnecessary. The defendant may show that he had probable cause, not as a complete defense, but only to mitigate damages.</p> <p>A person who causes the arrest of another without a warrantor other legal process and, as shown by the discharge by the magistrate of the' person arrested, did so without legal justification, is guilty of a trespass amounting to false arrest.</p> <p>A private citizen who called, upon a police officer to make an unjustifiable arrest and participated actively therein by first undertaking to make the arrest himself, may be held liable for false imprisonment.</p> <p>Where a special officer of a railroad company, employed to preserve order on its cars, arrests a person in the régular course of his duty on the charge that he is disturbing the peace, the railroad is liable for the act although the employee was commissioned as a police officer.</p>

<p>Mxmicipal corporations — water supply, city of New York — consumption of water — liability of owner — subrogation — representation by city ttat charges are paid — forgery of municipal records.</p> <p>A charge made by the eity of N ew York for water furnished through a meter is not in the nature of a tax but is a contract obligation. The contract is not one with'the owuer of the property as such, but is with the actual consumer who is the principal debtor, though as security for payment the statute makes the debt a lien upon the premises. Hence, as the owner occupies the position of surety, when the city’s claim for water is paid, he is subrogated to its rights against the consumer. . ‘</p> <p>Thus, where an owner of real property having inquired of the municipal authorities whether a lien on the premises for water consumed by a ten ant had been paid and having been assured that it had been paid, which fact appeared upon the face of the- municipal records which had been forged by a city employee, and the tax had not in fact been fully paid, in reliance upon such representation released a third party who was surety for the payment of said water rates, the city cannot, on discovering the forgery, assert a lien on the property for the amount unpaid.</p> <p>Clarke and DowliNG-, JJ., dissented.</p>

Appeal by the plaintiff, Me Walter B. Sutton, from an order of the Supreme Court, made at the New York Special Term, hearing date the 20th day of March, 1911, and entered in the office of the clerk of the county of New York, granting the defendant’s motion to punish the plaintiff for a contempt of court. ' '

Appeal by Harry Allen, one of the executors named in the will of John C. Latham, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 5th day of May, 1910, rendered upon the decision of the surrogate, refusing the issuance of letters testamentary to said Harry Allen..

Appeal by The City óf 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 3d day of April, 1911, granting the petitioner’s motion and referring to commissioners of estimate and assessment the determination of. his claim for compensation for closing and discontinuing a street ■ pursuant to section 14 of chapter 1006 of the Laws of 1895.

<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 1st day of February, 1911, sustaining a writ of habeas corpus and discharging the relator from custody.</p>

Appeal by the Woodlawn Cemetery from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of January, 1911, confirming the supplemental and additional report of the commissioners- of estimate and assessment in a street opening proceeding. -

<p>Appeal by the defendant, Harriet E. Selleck, from- an ■ interlocutory judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of New York on the 2d day of February, 1911, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendants, Gilbert F. Smith and others, frpm a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the ■ 10th day of March, 1911, upon the decision of the court, rendered after trial at the New York Special Term.

<p>Municipal corporations — vaults under street, city of New York — right to. construct new vaults in place of old ones which have been licensed — license subordinate to rights of public — evidence — failure to show license to maintain vaults — when no duress by city in refusing license until fee is paid.</p> <p>Where the city of New York has never given a license for the construction of vaults under a public street pursuant to the statute authorizing it to license such vaults; it may demand a fee for their maintenance no matter • how long they have been in existence.</p> <p>But if a license for vaults has been granted, the owner of the land when desiring to enlarge the vaults has a right to build new vaults in the space formerly occupied by the old without an additional permit or the payment of an additional fee, provided the continuance of the vault does not interfere with the street or impair its use by the public.</p> <p>As the city holds the streets as trustee for the public it has no power to grant any right or permission to occupy any part thereof if it interfere with the public use, and any license to do so is given and accepted with an understanding that it is subordinate to the public rights.</p> <p>Any presumption that an owner who has maintained vaults under the streets of the city of New York for fourteen years Without objection did so under a municipal permit is overcome if the municipal records do not show that a permit was ever granted, for under the statute and the city ordinance there must be a written request for permission to construct such-vaults.</p> <p>Evidence examined, and held, ■ insufficient to show that vaults under streets in the city of New York were constructed prior to 1867, at which dat,e the city was authorized by statute to issue permits for street vaults. Where a'contractor who had agreed to rebuild and enlarge vaults already existing under the city streets on being denied a license to,construct new.vaults in the space occupied by the old unless the license fee were paid — the city contending that the former vaults were illegally maintained-^ paid the fee under protest in order to brake timely completion of his work, it was a voluntary payment and cannot be recovered of the city on the theory that it was extorted by duress if he were not arrested or threatened with arrest.'</p>

Application by Alvin T. Hoag and others for the removal of Edward MeGtraw from the office of supervisor and Lindsley J. Welling from the office of town clerk.

<p>Appeal by the defendant from a judgment of the Supreme Court, entered in the clerk’s office of the county of Albany on the 2d day of May, 1910, upon the verdict of a jury, and from an- order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial.</p>

<p>Master and servant — negligence.</p>

<p>Appeal from an order entered in the Rensselaer county clerk’s office on the 13th day of January, 1911, reducing plaintiff’s costs.</p>

<p>Charges against an attorney for unprofessional .conduct.</p>

<p>Appeal from an order granting the plaintiff’s motion for the appointment of a referee to hear and determine the issues.</p>

<p>Cross-appeals from an order of the Special Term, entered on the 23d day of March, 1911.</p>

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

<p>Appeal from an order entered on the 31st day of May, 1911, granting a-motion for a commission to take the testimony of the witness upon oral questions.</p>

<p>Appeal from a judgment entered on the 15th day of October, 1910, upon the verdict of a jury, and from an order entered on the 14th day of October, 1910, denying a motion for a new trial.</p>

<p>Attachment — foreign corporation.</p>

<p>Appeal from an interlocutory judgment, entered on the 10th day of January, 1911, overruling the defendants’ demurrers to an amended complaint.</p>

<p>Appeal from an order denying a motion for a commission to take testimony on written interrogatories.</p>

<p>Trust — spendthrift ti-Ust—accumulation of income.</p>

Reargument of an appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 27th day of September, 1910, dismissing its complaint.

Appeal by the petitioner from an order of the Special Term denying her application for an order directing the removal of the committee of her property, which said order was entered'in the office of the clerk of the county of Kings on the 5th day of April, 1911.

<p>Will — creation of trust — when-no suspension of power of alienation.</p>

Motion denied, without costs, upon the ground that the county of Albany cannot maintain the action. The other questions are not, therefore, considered. - All concurred, except Smith, P. J., who voted for the granting of the motion, with memorandum.

<p>Master and servant — negligence — Employers' Liability Act — order of superintendent.</p>

<p>Appeal from an order entered in the Ulster county clerk’s office' on the 25th day of February, 1911.'.</p>