Volume 146 — New York Appellate Division Reports

Appeal by the defendant^ Philip De Ronde, 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, denying the defendant’s motion for a bill of particulars.

Appeal by the defendant, Nathan Greenbaum, as receiver, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1911, staying the prosecution of an action brought in the City Court of the city of New York.

<p>Appeal by the plaintiff, the Alaska Banking and Safe Deposit Company, 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 9th day of March, 1911, upon the dismissal of the complaint by direction of the court as to certain defendants at the close of plaintiff’s case on a trial at the New York Trial Term.</p>

<p>Appeal by the defendant, Marshall Marks, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 20th.day of May, 1910,-convicting the defendant of the crime of rape in the second degree, and also from an order denying the defendant’s motions for a new trial and in arrest of judgment.</p>

<p>Equity — specific performance —evidence justifying decree.</p> <p>A court of equity will not'decree the specific performance of an agreement unless it be definite and certain in its terms and be established by satisfactory proof.</p> <p>Suit to compel the specific performance of an alleged oral agreement to execute a sublease containing the same privilege, of renewal and agreement to purchase buildings'ereeted by the sub-teriant as were contained in the tenant’s lease. Evidence examined, and held, insufficient to justify a decree of specific performance.</p>

Appeal by the plaintiff, Giuseppe Monaco, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of March, 1910, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 11th day of February, 1910, granting defendant’s motion for such dismissal.

<p>Libel — pleading — answer — incompetence of attorney — insufficient defense — allegations in mitigation of damages.</p> <p>Where the complaint in an action for libel brought by an attorney at law on a publication charging him with ignorance of his profession in failing to question the constitutionality of a Federal' statute, sets out a general charge of ignorance not limited to the particular case, an alleged complete defense setting out the statute, its interpretation by the Federal courts, etc., and the nature of the particular'case in" which the plaintiff was retained in which he failed to raise the issue of constitutionality, is in answer to a charge of professional ignorance in the par ticular case and a demurrer thereto should be sustained.</p> <p>But said allegations coupled with a statement that the facts were'lmown to the defendant before the publication of the article, and "that it "was published in reliance thereon in good faith and without malice, pleaded as a partial defense in mitigation of damages, is good, even though they do not set forth a general professional ignorance but limit it to the particular case in which the plaintiff was employed.</p>

<p>Appeal by .the defendants, Indian Territory Illuminating Oil 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 9th day of February, 1910, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Apollonia Warth, 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 9th day of July, 191.0, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Appeal by the plaintiff, Henrietta Simon, 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 28th day of February, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.</p>

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

Appeal by the defendant, Simon Fleischmann, as executor, 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 7th day of June, 1911, denying the defendant’s motion for judgment on the pleadings. •

Appeal by the defendant, Ernest L. Sawyer, 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 5th day of April, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to .the amended complaint.

Appeal by the plaintiff, Annie' Stenson, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, eritered in the office of the clerk of the county of Yew' York on the 6th day of August, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Yew York Trial Term.

Appeal by the defendant, H. Clausen & Son Brewing 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 17th day of December, 1910, upon the verdict of a jury for $5,000, which was reduced by stipulation to .$3,000, and also from an order entered in said clerk’s office on the 23d day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frits V. Holm, 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 April, 1911, sustaining the defendants’ demurrer to the amended complaint in an action for libel upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

<p>Sale — damages — special damage — forfeiture for breach of contract of resale — damages within contemplation of parties — question of fact — loss of profits — evidence — market value of goods — pleading.</p> <p>The plaintiff in an action for a breach of defendant’s contract to deliver ties on the docks of a railroad company can recover as special damage the amount of a penalty he forfeited to the railroad company by reason of his own failure to furnish the ties to it on a contract of resale, where the evidence shows that defendant had knowledge of the contract of resale and of the sum deposited to secure performance by the plaintiff, where the plaintiff could not have obtained the ties in the market so as to have made delivery in time to prevent the forfeiture. With such knowledge on the part of the defendant the damages must be deemed to have been within the contemplation of the parties.</p> <p>Such damages may be recovered, although the contract of sale was made before the plaintiff’s contract of resale was actually executed, if the defendant knew that his bid had been made and accepted.</p> <p>The question as to whether said item of special damage was in the minds of the parties when the contract was made is a question of fact.</p> <p>It seems, that the buyer could not recover as-special damage the profits lost on his contract of resale without proving that there was "no market value for -the ties at the time and place of delivery.</p> <p>In such action it is error to exclude proof by the plaintiff showing the market value of the ties at the time and place of delivery, even though he did not specifically allege the market value, where the complaint, in addition to allegations of special damages, made an averment of general damage which included the items of special damage.</p> <p>Where such testimony was excluded upon the ground that the measure of damages to be established thereby was not recoverable under the complaint, it was unnecessary for the plaintiff to qualify his witness as an expert as to the market value.</p>

<p>"Will construed —trust, income payable to testator’s children — when unexpended income passes to owners of next eventual estate.' "</p> <p>Under a will placing property in trust for a period measured by the lives of two of the' testator’s'children, income to be divided among his children in equal shares,"with a further proviso that if one of the'daughters who was of unsound mind should in the opinion of the trustees continue incapable- of managing her own affairs, ■ they should pay so much of her share of the income as might be required for her maintenance to her sister to be applied by her for the maintenance of the incompetent, such portions of the incompetent’s share .of the income as were not expended ' for her maintenance passed, when she died without regaining competency, to those who,-took the next eventual estate under the will, rather than under the will of the incompetent,' there being no word of gift of any kind to her. '■</p> <p>As the will provided that upon the death of the incompetent her portion of the income should pass to her brothers and sisters in equal shares, they are entitled to the unexpended income as owners of the next eventual estate; notwithstanding the fact that they had a life estate only.</p>

. Appeal by the plaintiff, Wesley D. Hunter, 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 22d-day of December, 1910, upon the dismissal of the complaint by direction of the. court at the close of plaintiff’s case on a trial at the New York Trial Term.

<p>Appeal by.the defendant, Edgar A. Whitney, from a judginent of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 30th day of November, 1908, convicting him of the crime of grand larceny in the second degree, and also from an order denying his motions for a new trial and in arrest of judgment.</p>

Appeal by the defendant, Clemens J. Caughey, 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 31st day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the'10th day of Novem- - her, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Yew York and Cuba Mail Steamship Company, from an order of the Appellate Term of the Supreme Court, entered in the office of 'the clerk of the county of Yew York on the 8th day of December, 1910, affirming a judgment of the City Court of the city of- Yew York in favor of plaintiff, entered in. the office of the clerk of said court on the 22d day of April, 1910, upon the verdict of a jury, and also affirming an order of said City Court entered on…

• Appeal by the defendant, Eugene Clemente, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 17th day of March, 19-10, convicting the defendant of the crime of manslaughter in the second degree.

Appeal by Anton H. Meyer, as assignee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the' 21st day of March, 1911, vacating a prior order for the examination of witnesses under the Debtor and Creditor. Law.

• Appeal by Joseph L. Young 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 May, 1911, directing the appellant, an attorney, to answer certain questions propounded to him as a witness before the referee in the above-entitled proceeding.

Appeal by the plaintiff, Madison Trust Company (Van Norden Trust 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 19th day of May, 1911, directing that the rents collected by a receiver in foreclosure be disbursed for repairs.

Appeal by the petitioner, John T. Murphy, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1911, denying the petitioner’s motion for an order. authorizing and directing the comptroller Of the city. of New York to pay over to him the balance of an award in condemnation proceedings..

<p>Will — trust estate^ death of beneficiary — construction of will — intention to dispose of whole estate.</p> <p>Where a will, after directing that the residuary estate be held in trust and the income paid to eleven beneficiaries, each of whom was given a power to dispose of his share of the corpus by will, further provided that, if at the time of testatrix’s death any of the beneficiaries named had died, then the eleven shares into which the residuary estate was directed to be divided should “be reduced in number to the number of said beneficiaries as shall have survived me and to the extent of said deceased beneficiaries’ interest,” the share of a beneficiary who predeceased the testatrix remains part of the residuary estate and should be added in equal proportions to the other ten residuary interests. As to the interest of such deceased legatee, the testatrix does not die intestate, especially if it is apparent from other provisions of her will that she intended to dispose of all her property.</p> <p>A- paragraph of the will whereby testatrix gave to each beneficiary a power to bequeath' the share of the principal of the residuary estate on which such beneficiary had received the income during his life and that, in the event of a failure to exercise such power, the share of the principal should go to the heirs and next of kin of the beneficiary, evinces an intention to dispose of all her estate.</p>

Appeal by the relator, The City of New York, in each of . the four above-entitled proceedings, 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, correcting and amending the original printed returns to writs of certiorari.

Sepabate appeals by the defendants Greorge F. Scannell and George McAneny, as president, etc., from an order óf the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1911, substituting George McAneny, as president of the borough of Manhattan, in the place and stead of and as successor to former borough presidents John F. Aheam and JohnCJIoughen in the first above-entitled proceeding and…

Appeal by the defendant, the Interborough Eapid Transit Company, 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 Yth day of February, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered on the 28th day of June, 1910, upon the verdict of a jury for $200, and also affirming an order entered on the 22d day of August, 1910, denying the defendant’s…

Appeal by the defendant, the Interborough Rapid Transit Company, 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 7th day of February, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 28th day of June, 1910, upon the verdict of a jury for $150, and also affirming an order of said City Court…

Appeal by the defendant, Smith Sheldon, 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 12th day of November, 1910, upon the verdict of a jury, and. also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the Canal Board 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 Cayuga on the 8th day of December, 1910, upon the decision of the court rendered after a trial before the court without a jury at the Monroe Trial Term.

<p>Appeal hy the defendant, the'Development and Funding 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'23d day of December, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the-31st day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes..</p> <p>The action was commenced on the 8th day of May, 1909, to recover damages sustained by the plaintiff alleged to have been caused solely through the negligence of the defendant.</p> <p>The defense of the ■ defendant was and is that it was not guilty'of actionable negligence. It is also urged upon .this appeal that the learned trial judge committed reversible error in refusing to charge as requested by appellant’s counsel, and that the verdict is excessive. .</p>

<p>Contract — municipal contract for disposal of rubbish — deductions for failure to perform — payment —acceptance by contractor — ratification— failure to appeal to municipal board — accord and satisfaction.</p> <p>Where a municipal contract for the removal of rubbish from public streets provides that from the contract price the city engineer may deduct two dollars for each failure of the contractor to do the work properly, said sum to be considered as liquidated damages, and' that if the contractor be aggrieved by the decision of the engineer, he may appeal to a municipal board, the decision of which shall be final, the contractor by accepting payments, without protest, knowing that the engineer had made deductions from the contract price because of failures of the contractor to perform, acquiesced-in-the correctness of the deductions and cannot recover the amount thereof from-the city, there being no charge by the contractor that he was misled, or fraudulently, or improperly induced to receive the money.</p> <p>Hence, although there be conflicting evidence as to whether the complaints against the contractor were justified, that issue should not have been submitted to the jury.</p> <p>The determination of the engineer as to the deductions, when acquiesced in by the contractor, was conclusive in the absence of an appeal to the municipal board as authorized by the contract.</p> <p>It seems, moreover, even if there had been a controversy as to the amount to be deducted eachmonth, the acceptance of the draft for the diminished Sum was an accord and satisfaction. .</p>

Motion by the plaintiff, George Maslin, as administrator, etc., for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance after a nonsuit granted at the close of plaintiff’s case on a trial at the Monroe Trial Term in June, 1910.

Appeal by the defendant, The LEtna Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 27th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May, 19.10, denying the defendant’s motion for a new trial made upon the minutes. z The plaintiff, a domestic corporation, has recovered a judgment upon an…

<p>Real property easement — right of way by necessity — easement ceases when necessity ceases —way by means of navigable waters — extinguishment of easement by adverse user.</p> <p>A right of way over the lands of another by necessity will not be implied unless it is strictly essential in order to obtain access to the lands to which it is appurtenant. The question of necessity controls; the fact that such easement is a mere convenience is insufficient to create it. In theory an implied easement depends upon the probable intention of the parties. Where an original right of way by necessity was limited to a footpath and wood road as they existed at the time the lands were conveyed, the owner of tire way has no right subsequently to construct a roadway fifteen feet in width.</p> <p>A right of way by necessity ceases to exist when the necessity ceases. Thus, although the grantee of an island may have had a right of way by necessity over the lands of his grantor upon the adjoining shore of a navigable bay, such way was extinguished when public highways were extended to the bay so that the necessity to pass over the grantor’s land was gone.</p> <p>Where the owner of an island has reasonable access to a highway upon the mainland by means of a navigable body of water, he cannot claim a right of way by necessity over the lands of his grantor.</p> <p>Any easement which the grantee of an island may have had over the adjacent mainland owned by his grantor was extinguished where for thirty years the grantee made no claim to such Way and the grantor repudiated such right of way by cultivating the mainland, selling a portion of it and leasing other portions in hostility to the easement.</p> <p>Robson, J., dissented.</p>

Appeal by the defendant, Hattie Burge Brick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of the county of Livingston on the 1st day of September, 1910, upon the report of a referee.

Appeal by the plaintiff, James E. Calkins, from a judgment of the Supreme Cofirt in favor of the defendants, entered in the office of the clerk of the county of Wyoming on the 6th day of June, 1910, upon the decision of the court rendered after a, trial at the Wyoming Special Term.

Appeal by the defendants, James S. Watson and others, from ah order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 17th day of December, 1909, granting the plaintiff’s motion to set aside the verdict of a jury'in favor of the said defendants and directing a new trial, and also from an order entered in said clerk’s office ón the 30th day of December, 1909, denying the said defendants’ motion for leave…

. Appeal by the defendants, Thomas W., Finucane 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 Monroe on the 14th day of October, 1910, upon the verdict of a jury for $1,212.93; also from an order entered in said clerk’s office on the 27th day of September, 1910, denying the said defendants’ motion for' a new trial made upon the minutes, and also from an order entered on the 3d day of October,…

<p>Attorney and client — disbarment — improper use of letters — appropriating money.</p> <p>Newly-discovered evidence offered by an attorney who had been disbarred for using certain letters in an improper way so as to secure an advan- " tageous settlement of the claim of a client and then when he had secured more than the face of the claim appropriating the difference, examined, and held, insufficient to justify a rehearing of the charges.</p>

Appeal by the defendants, Ezekiel 0. Perry 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 Yates on the 19th- day of July, 1910, upon the decision of the court rendered after a trial at the Yates Special Term. .

Appeal by the defendant, the Lackawanna Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office- of the clerk of the county of Erie on the 23d day of January, 1911, upon the verdict of a jury for $17,500, which was reduced by stipulation to $12,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Stecher Lithographic Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 7th day of April, 1910, upon the verdict of a jury rendered by direction of the court; also from an order entered in said clerk’s office on the 31st day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 7th day of…

Appeal by the defendant, Ratrick A. Powers, from an order of the Supreme Court, made at the Monroe Special Term, bearing date the 18th day of February, 1911, and entered in the office of the clerk of the county of Monroe.

Appeal by the defendant; the New York, Ontario and-Western 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 Oswego on the 10th day of January, 1911, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 24th of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William T. Leighton, on behalf of himself, etc., from an interlocutory judgment of the Supreme Court in favor - of the defendants, entered in the office of the clerk of the county of Monroe on the 4th. day of November, 1910, upon the decision of the court Tendered after a. trial at the Monroe Special Term. . .

Appeal by the defendant, Willard H. Reck, from a, judgment of the Supreme Court rendered against him on the 25th day of July, 1910, convicting him of the crime of perjury; also from an order bearing date the 4th day of March, 1910, and entered in the office of the clerk of the county of Onondaga overruling the defendant’s demurrers to the indictment, and also from an order entered in said clerk’s office on the 25th day of July, 1910, denying the defendant’s motion for a new…

<p>Will — direction to divide fund at future time —intention of testator — - vesting of interest — definition.</p> <p>Where a testamentary gift is found only in a direction to divide a fund at' a future time the gift is future and contingent and not vested:</p> <p>But this rule is subordinate to thó primary canon for the construction of ■wills, .that the intention of the testator, as collected from the whole instrument must prevail, and, if- the application, of the subordinate rule would defeat the testator’s intention, it must give way.'</p> <p>Thus, where a will provided that in the event of the death of any of the ultimate beneficiaries of the residuary personal estate, which was left in trust, before the legacies became vested in them, or before the time appointed for the distribution of the fund, the legacies- or distributive shares or both of the one orones so dying “ shall not lapse, but shall pass to then- children them surviving in equal shares,” the share of one of such beneficiaries who died before the time appointed for the distribution of the fund vested in his children, and where his only child likewise died before the distribution, the share goes to her personal representatives. Such bequest does not revert to the estate as unbequeathed assets.</p> <p>The words “ shall pass to ” are words of express gift.</p> <p>Williams, J., dissented, with opinion.</p>

<p>■ Bills and notes — consideration — evidence raising question for jury. ‘</p> <p>Action upon a promissory note. Defendant contended that the note was without consideration. Evidence examined, and held, that the question as to whether there was a valid 'Consideration was for the jury and that ' the direction of a verdict for the defendant was error.</p>

Appeal by the defendants, Georgiana H. Larson, individually and as administratrix, etc., 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 Monroe on the 6th day of February, 1911, overruling the said defendants’.' demurrer to the amended complaint.

Certiorari issued out of the Supreme Court, and attested on the 4th day of February, 1911, directed to Henry Bullard and others, individually and as members of the town board of the town of ■Philadelphia, N. Y., directing them to certify and return to the office of the clerk of the county of Jefferson all and singular their proceedings had in refusing td allow certain claims of the relator against the town.

Appeal by Henry C. Patterson and others from, an order of the Surrogate’s Court .of the county of Chautauqua, entered in said Surrogate’s Court on the 19th day of December, 1910, fixing a transfer tax upon the decedent’s estate, and also from a decree of said Surrogate’s Court entered on the 20th day of February, 1911, affirming said order of assessment, except so much as fixes a tax upon the property passing by the will of said decedent.

Appeal by the defendant, Irving Harrington, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of March, 1911, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by the plaintiff, The Bank of Wayne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 9th day of January, 1911, upon the decision of the court, rendered after a trial at the Wayne Special Term, dismissing the complaint.

Appeal by the defendants, William Cordes. and another, from a judgment of the Municipal Court of the city of Yew York,' borough of Brooklyn, in favor of the plaintiff, rendered on the 24th day of January, 1911.

Appeal by the plaintiff, Frank & J. G-. Jenkins, Jr-, a corporation, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on,the 12th day,of January, 1911, upon the dismissal of the complaint by direction of the court at the opening on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial..

Appeal by the plaintiff, August Baker, from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered in the office of the clerk of said court on the 1st day of May, 1911', setting aside the verdict of the jury and granting a new trial.

Appeal by the defendant, Michael Nestel, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff decedent, rendered on the 13th day of April, 1909, after a trial before the court without a jury.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant rendered on the 16th day of January, 1911.

Appeal by the defendants, the Lafayette Trust Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of June, 1910, upon the verdict of a jury rendered by'direction of the court, and also from an order entered in said clerk’s office on the 23d day of July, 1910, denying the defendants’ motion for a new trial made upon the minutes.

<p>Public nuisance — suit by private person to abate nuisance — failure to show-damage — distinction between crime and nuisance.</p> <p>A licensed hackman in the city of New York cannot maintain a suit in equity to abate an alleged public nuisance, on the charge that the defendant, his competitor, is doing business without a license, or in excess of his license, where the complaint does not show injury or damage peculiar to the plaintiff.</p> <p>While every public nuisance is a crime, not every crime is a public nuisance. •</p> <p>Thomas, J., dissented.</p>

<p>Appeal by the defendants, Max Winkler and others, constituting the board of water commissioners, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 24th'day of January, 1911, directing the issuance of a peremptory writ of mandamus.</p>

Appeal by the plaintiff, Eliza Weller, as administratrix, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant rendered on the 24th day of May, 1909, dismissing the plaintiff’s complaint.

Appeal by the defendant, Charles Wambold, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the “clerk of the county of Westchester on the 5th day of June, 1911.

<p>Eoreclosure — pleading — answer claiming title to chattels under contract of conditional sale — practice — remedy where answer is frivolous — sale — title to chattels annexed to realty under contract of conditional sale.</p> <p>It is error tó dismiss the answer of. a defendant in a suit to foreclose a mortgage upon real property where it alleges in substance that after the execution of the mortgage he sold stoves to a grantee of the property . under a contract whereby the title remained in him until the purchase price should be paid, which contract was duly filed as required by the • Lien Law, and that the vendee failed to pay the purchase price so that the defendant is entitled to possession of the stoves and to a lien thereon, and is, therefore, an improper party defendant.</p> <p>Such answer in effect denies the allegation of the complaint that the interest or lien of the defendant accrued subsequent to the lien of the mortgage or is subject or subordinate thereto.</p> <p>A sham answer may be stricken out on motion; but where a plaintiff deems an answer frivolous-his remedy is to apply for judgment thereon.</p> <p>Under such contract of conditional sale the stoves, although annexed to the realty, remain personal property, title in the vendor as between him and the vendee, even though they might be deemed part of the realty as between the mortgagor or his successor in interest, and the mortgagee.</p> <p>Hirschbbrg- and Rich, JJ., dissented,</p>

<p>Abatement — death of plaintiff in negligence action after judgment for defendant — when administratrix not entitled to prosecute appeal.</p> <p>Where a verdict for the defendant in- an action for personal injuries has been affirmed and the plaintiff’s motion for leave to appeal denied and, pending an appeal from a denial of a subsequent motion for a new trial on the ground of newly-discovered evidence, the plaintiff died so that his action abated, Ms administratrix wiil not be allowed to prosecute the action and appeal ¡as if it had origmally been brought by her, if the decedent left no estate to protect against the defendant’s judgment for costs. TMs, because should the 'admmistratrix be successful in her appeal, no judgment on the husband’s cause of action could be had as it abated at Ms death, while she could bring a statutory action to recover for the decedent’s death by the removal of the bar of the prior action.</p>

<p>Appeal by the plaintiff, Ernest M. Culp, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Kings on the 13th day of May, 1910, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order bearing date the 20th day of May, 1910, and entered in said clerk’s office denying the plaintiff’s motion for a new trial.</p>

<p>Eminent domain — compensation of commissioners of appraisal — allowance reduced.</p> <p>Appeal by the board of water supply, city of New York, from an order taxing and allowing the compensation of commissioners of appraisal.</p> <p>■ Evidence examined, and held, that the amount allowed to the commissioners should be reduced owing to the fact, that some of the hearings did not occupy an entire day, etc.</p>

Appeal by the defendant, James W. Sterry, from a judgment of the Supreme Ooürt in favor of the plaintiff, entered in the office of the clerk of the comity of Suffolk on the 6th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Max Goldberg, from a judgment of the Supreme Court, rendered against the defendant on the 30th day of March, 1911, after a trial at the Kings County Trial Term, convicting him of the crime of arson in the second degree.

Appeal by the defendants, Louis Halperin and another, from a judgment of the Supreme Qourt in favor of the plaintiff, entered in the office of the clerk of the county of Kings. on the 29th day of October, 1910, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 31st day of October, 1910, denying the defendants’ motion for a. new trial made upon the minutes.

<p>Innkeeper — loss of property delivered for safekeeping — negligence — damages recoverable.</p> <p>While under the statute the liability of an innkeeper for the loss of property of a guest delivered to him for safekeeping is limited to $250, unless by a special agreement in writing he assumes a greater liability, the recovery of a guest for the loss of property delivered to the innkeeper is not limited to said sum where she bases her action, not upon his liability as an innkeeper, but upon his affirmative negligence in failing to take proper care of the property after he had removed it from his safe during a fire.</p> <p>Burr, J., dissented.</p>

Appeal by the defendant, Samuel E. Snedeker, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office .of the clerk of said county on the 30th day of September, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of September, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Tax — transfer tax — devise under will giving conditional power of appointment.</p> <p>Where a testator devised his property in trust, income to his wife for life, or until her remarriage, and provided that on the happening of either of said events the corpus should be divided and held in separate trusts for the lives of such of his daughters as should be living at the túne of the division, and for the issue of deceased daughters per stirpes, giving to each daughter living at the termination of the widow’s estate a power of appointment with respect to her own share in the estate, with a proviso that on the death of a daughter prior to the decease of ■ the mother her share should go absolutely to her issue, the gifts to the beneficiaries are subject to a transfer tax of five per cent.</p> <p>This, because there was no power of appointment in the widow or. absolute power of appointment in the daughters, so it was impossible to determine whether the property would go under the will directly to the issue of daughters, or under the provision giving them the conditional power of appointment. ■</p>

<p>Appeal by the defendants, Patrick J. Scully, city clerk, etc., 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 15th day of September, 1911, granting a peremptory writ of mandamus directed to said city clerk, commanding him to make and transmit to the custodian of primary records a notice specifying the office of the Municipal Court justice for the sixth Municipal Court district of the borough of Brooklyn as one of those to be voted for at the election in 1911, and also directed to J. G-abriel Britt and others, constituting the board of elections of the city of New York, directing them to publish a notice which shall include the said office.</p>

Appeal by the defendants from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on. the 21st day day of September, 1911, granting a peremptory writ of mandamus requiring the.defendants to provide an official sample ballot for the general election in November, 1911, in the form' provided for by the Election Law of the State of New York prior to the attempted amendment thereof by chapter' 649 of…

Appeal by the. defendants from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1911, granting a peremptory writ of mandamus.

. Appeal by The City of New York, intervenor, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 16th day of December, 1910, as resettled by an order entered on the 9th day of January, 1911, reducing the assessment of the special franchise of the relator for the year 1905.

Appeal by the defendant, Gilbert De Witt Dare, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 30th day of December, 1910, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 19th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Joseph B. Mayer from so much of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 17th day of March, 1911, as surcharges his accounts as receiver of the Bank of Staten Island, and fixes his commissions at the rate of two and one-half per centum on the amounts received and disbursed.

Appeal by the defendant, Kertscher & Company, from a judgment of the -Supreme Court in favor of .the plaintiff, entered in the office of the clerk of the county of Chemung on the 10th day of March, 19.10, upon the verdict of a jury for $12,000 (which was reduced by stipulation to $Y,0Q0); also from an order entered in said clerk’s officé On the 1th day Of February, 1911, denying the defendant’s motion for a new trial upon the making of the stipulated reduction in the amount…

Appeal by the defendant, the Star Oompany, from á judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of December, 1910, upon' the verdict of a jury for $25,000; also from an order entered in said clerk’s office on the 19th day of December, 1910, denying the defendant’s motion, for a new trial made upon the. minutes, and also from an order entered on the 13th day of January, 1909, striking out'…

Appeal by the defendant, The New York Central and Hud- son Biver Bailroad Company, from a judgment of .the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau, on the 21st day of March, 1911, upon the verdict óf a jury for $40,000; also from an. order entered in-said clerk’s office on the 20 th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said…

Appeal by the defendant, The William Horne Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the officó of the clerk of the county of Kings on the 10th day of April, 1911, denying a motion to vacate an order for the examination of the said defendant before trial.

<p>Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company,- from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on' the 25th day of February, 1911, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 8th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff) the Lucia Mining Company, from a. judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 22d day of September, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint.

<p>Appeal by the defendant, Arthur N. Taylor, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 26th day of May,' 1911.</p>

Appeal by the plaintiff, Rosella E. Seaman, 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 14th- day of February, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining-the defendants’ demurrer to the amended complaint.

Appeal by the plaintiff, Violet E. Sheldon, from a judgment of the Supreme Court in favor of the defendant, entered in the- office of the clerk of ■ the county of Nassau on the 6th day of January, 1911, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint. . -

<p>Discovery — examination of plaintiff before trial — knowledge sufficient to enable plaintiff to plead.</p> <p>Where in answer to an action against the treasurer of a corporation f or an accounting as to moneys alleged to have been improperly disbursed, etc., the defendant, moving for an order for the examination of the . plaintiff before trial alleges that while he does not know whether he ■ paid out the specific sums mentioned in the complaint; he does know that he never paid out moneys except legally and with proper authority, and that while he does not know the amount in his hands, he does know that he turned over all the moneys in his hands belonging to the corporation, and that he drew no moneys except, as authorized, etc., he shows that he has knowledge sufficient to enable him, to answer the complaint, and the motion for an examination of the plaintiff should be denied.</p> <p>It seems, however, that after issue joined, the defendant may be entitled to inspect the books of the corporation under the control of the plaintiff for the purpose of preparing his defense.</p>

Appeal by the plaintiff, the Easton Furniture Manufacturing Company, from two judgments of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 4th day of April, 1911.

<p>Certiorari issued out of the Supreme Court and attested on the 17th day of May, 1911, directed to Joseph P. Hennessy and others, composing the board of assessors of the city of New York, commanding them to certify and' return to the office of the clerk of the county of Kings all and singular their pro - ceedings had in awarding certain damages to the relators under chapter 582 of the Laws of 1905.</p>

Appeal by the plaintiffs, M. Elizabeth Waydell, individually and as executrix, etc., and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 12th day of January, 1911, upon the verdict of a jury dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the Yth day of January, 1911, denying the plaintiffs’ motion for a'new- trial made upon the…

<p>Contract — agreement to advance money — construction — bills and notes — payment of note at request of maker — subrogation — prae- ~ tice — inconsistent conclusions of law.</p> <p>The interpretation of a written contract which is unambiguous and complete in itself and which cannot be supplemented by any other evidence is a question of law for the court. .</p> <p>Where a corporation agreed to advance to another company, having a municipal contract, such sums as should be necessary to carry out the contract and to pay the interest on loans'to the contracting company, it is not obligated to pay a note of the contracting company discounted ■ before the agreement was made.</p> <p>Where such corporation at the request- of the contracting company pays one of the company’s notes which had been discounted before the agreement was made, it is entitled to be subrogated to all the rights of the payee of the note, including the right to hold collateral pledged for its payment.</p> <p>As. the corporation took tip the note at the request of the contracting company, its act cannot be considered as that of a mere volunteer. Where a trial court makes- inconsistent findings of fact the appellant is entitled to the benefit of the finding most favorable to him.</p> <p>Such rule, however, does not apply to the conclusions of law made by the trial court. .</p> <p>Where a trial court has made proper findings of fact and conclusions of law and awarded judgment accordingly, the judgment will not be reversed because at the request of the defeated party it found an inconsistent conclusion of law.</p>

Appeal by the plaintiff, E. Platt Stratton, from a judgment of the Municipal Court of -the city of New York, borough of Queens, in favor of the defendant, rendered on the 21st day of March, 1911. .

<p>. Appeal by the defendant, Thé Brooklyn Union G-as Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of April, 1911, and also from an order' ' denying the defendant’s motion for a new trial.</p>

Appeal by the defendant, Charles A. Sieke, from an order of the Supreme Court, made at The Kings County Special Term and entered’ in the office of the clerk of the county of Kings on the 13th day of June, 1911, granting the plaintiff’s motion for a bill of particulars.

Appeal by the plaintiff, Michael Rose, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of said county on the 2d day of June, 1910, upon the dismissal of the complaint by direction of the court upon the pleadings on the opening of a trial at the Westchester Trial Term.

Appeal by the plaintiff, Walter Durkin, an infant, etc., from a judgment of the Supreme Court'in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of December, 1910, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendants, John E. Eustis and another, from a judgment of the Supreme Court in favor of the plain-tiff, entered in the office of the clerk of the county of Kings on the 24th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk?s office on the 27th day of June, 1910, denying the defendants’ motion for anew trial made upon the minutes.

Appeal by the defendant, the Astoria Veneer Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of February, 1911, upon the verdict of a jury for .$1,200, and also from an order entered in said clerk’s office on the 7th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles Kruse, from a judgment of the. Supreme Court in. favor of the defendant, entered in the office of the clerk of the county of Westchester on the 24th day of February, 1910, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office on the 19th day of April, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the relator, Max Brown, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office -of the clerk of the county of Kings on the 6th day of January, 1911, dismissing a writ of habeas corpus.

<p>Municipal corporations — negligence — failure to remove abandoned wire formerly used by police department — injury by electric shock.</p> <p>Where a city allowed telegraph wires originally used by the police department to remain strung on poles on a street without inspection after the use of the wires had been abandoned, they being in close proximity to the high tension wires of an electric lighting company strung on the same poles by permission of the city, the jury may find, the city negli- • gent and liable to a pedestrian who received an electric shock from a wire which fell to the street and came in contact with a high tension wire having defective instilation.</p> <p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of March, 1911, upon the verdict ■ of- a jury for $11,500, and also from.an order entered in said clerk’s office on the 20th day of March, 1911, denying the defendant’s motion for a new trial made' upon the minutes.</p>

Appeal by the defendant, the Knights of Columbus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 1th day of February,. 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of February, 1911, as resettled by an order entered on the 23d day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Michael Goldberg, 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 30th day of January, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a tria] at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 31st day of December, 1910, denying the plaintiff’s motion for a new trial made…

Appeal by the plaintiff, Matthew Lendgren, 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 20th 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 Kings County Trial Term, and also from an order entered in said clerk’s office on the 25th day of March, 1911, denying the plaintiff’s motion for leave to submit the…

Appeal by the defendants, John Eliphalet Mowbray 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 Nassau on the 15th day of March, 1911, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Bichard H. Pritchard, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 19th day of January, 1911, setting aside the verdict of a jury in favor of the plaintiff for $3,500 and granting a new trial.

Appeal by the plaintiff, Anna Thomas, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of February, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.

Appeal by the relator, William J. McDermott, 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 12th day of June, 1911, denying .the relator’s motion for a peremptory writ of mandamus.

Appeal by the. plaintiff, Daniel H. Baylis, from part of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 12th day of November, 1910, upon the decision of the court rendered after a. trial at the Nassau Special Term, with notice of ,an intention to'' bring up for review part of an interlocutory judgment entered in said clerk’s office on the 1st day of August, 1910.

Appeal by Edmund E. Terry from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 25th day of October, 1911.

Appeal by the plaintiff, Mary B. Hepburn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 1st day of July, 1910, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint.

Appeal by the defendant,. The Empire Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of June, 1910, upon the verdict of a jury for $4,750, and also from an order entered in said clerk’s office on the 21st day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>'Appeal by the defendant, the Cranford Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 24th day of October, 1910, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 25th day of October, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, George L. Bobinson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 5 th day of December, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to: bring up for review a judgment for costs in favor of the plaintiff entered in said clerk’s office on the same ■ day.

Appeal by the defendants, William D. Sporborg and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26 th day of April, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to the said defendants’ answer.

<p>Blaster and servant — negligence — Employers’ Liability Act — safe place to work — failure to promulgate rules — pleading.</p> <p>Where in a negligence action by a servant against his master there is no evidence of any defect in the ways, works or machinery of the defendant at the time and place of the accident, and there is no evidence of negligence on the part of any one intrusted with superintendence, the ease does not come within the provisions of the Employers’ Liability Act, and must be treated as an action at common law.</p> <p>The master’s duty to provide a safe place to work does not require him to follow up the details of the work and to see that the conditions brought about by the progress of the work are at all times such as to afford1 a reasonably safe environment.</p> <p>A master’s negligence in failing to promulgate proper rules for the conduct of his business must be pleaded in order to be available, and the burden is on plaintiff to prove the allegation.</p> <p>In the absence of evidence to the contrary, there is nó presumption that a master has failed in the discharge of any duty which he owes to his servant.</p> <p>Evidence in an action by a depot master to recover of the railway company, his employer, for injuries caused by the operation of a shifter in a ear barn examined, and held, that a judgment for the plaintiff should be reversed. ...</p>

<p>Appeal by the defendant, William S. Kinsey, 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 22d day of December, 1910, as amended by an order entered on the 5 th' day of January, 1911, granting the plaintiff’s motion for a new trial on the ground of newly-discovered evidence.</p>

Appeal by the defendant, Richard K. Haldane, from a judgment of the Supreme Court in fayor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of March, 1911, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal by the plaintiff, Agnes Mtchman, an infant, etc., from a judgment of the Suprenie Court in favor of the defendant, entered in the office of the clerk of the county of Kings 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 Kings County Trial Term.</p>

Appeal by the .defendants, William J. Moore and another, from a decision of Justice McLaughlin of the Municipal Court, first district of the borough of Queens, rendered on the 21st day of July, 1910.

<p>Appeal by the petitioner, the Builders’ Mortgage Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of January, 1911, denying the petitioner’s motion to compel Francis E. Carberry, receiver of the rents and profits of the mortgaged premises, to pay over to the petitioner moneys collected by him as such receiver.</p>

<p>Appeal by the defendants, Twelfth Ward Bank and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 13th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of June, 1910, denying the said defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Herbert J. Callistér, 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 30th day of June, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, the Alpha; Portland Cement Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 21st day of April, 1911, dismissing the complaint.

• Appeal by the defendant, St. Peter’s Lithuanian Society, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of March, 1911. ■

<p>Appeal by the .plaintiff, Samuel Rappaport, from a judgment of the. Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of January, 1911.</p>

<p>Eeargument of an appeal by the defendant, William H. Sage, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 16th day of January, 1911.</p>

Cross-appeals by the plaintiff, Florence C. Oppikofer, and the defendant, John W. Murphy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of April, 1911, upon the verdict of a jury for $358.99, rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of April, 1911, denying the plaintiff’s and the said defendant’s motions for a new trial.

Appeal by Susan C. Hoge, the residuary legatee, from a decree of the Surrogate’s Court of the county óf Queens,, entered in said Surrogate’s Court on the 9th day of February, 1911, on the judicial settlement of the .'account of Charles M. Chamberlain and another, as executors.

. Appeal by the applicants, Robert J. Coady and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of June, 1911, denying a motion for a peremptory writ of mandamus.

• Appeal by the defendant, the E. M. Upton Cold Storage Company, from an order of the Supreme Court, made at the Orange Special Term and entered, in the office .of the clerk of the county of Orange on the 2rfch day of March, 1911.

Appeal by William D. Farrington 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 March, 1911.

Appeal by the defendant, The Emigrant Industrial Savings Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of March, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 31st day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the Public Servicé Commission for the First District of the State of New York, as successor to the Board of Rapid Transit Railroad Commissioners for the City of New York, and The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office ■ of the clerk of the county of Kings on the 10th day of September, 1909, confirming the report of commissioners of appraisal .herein.

<p>Appeal by J. Linton Thompson and others, the executors and residuary legatees named in the will, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 26th day of January, 1911, denying probate to an instrument purporting to be the last will and testament of Robert H. Thompson, deceased.</p>

Appeal by the defendant, the People’s National Bank, sued as People’s National Bank of Lebanon, Pennsylvania, from an order of the Supreme Court, made at the Kings County Special Term and entered in,the office of the clerk of the county of Kings on the 13th day of May, 1911, permitting the respondent to intervene as. a party defendant.. ■■ The action. was brought by the plaintiff, Edison Electric Illuminating Company, under section 820a of the Code of Civil Procedure, on the…

Appeal by the defendant, The Motor Delivery 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 22d-day of December, 1910, upon the verdict of a. jury for $5,000, and also from an order entered in said clerk’s office on the 17th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Tillie May Pouch, from an order of the Supreme Court, made at the New York Special Term and entered in the officeof the clerk of the county of New York on the 10th day of August, 1911.

Appeal by the plaintiff, L. C. Page and Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of said court on the 8th day of December, 1910, reversing a judgment of , the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6 th day of June, 1910, upon a decision of the court.

Appeal by the defendants, Bernard Turkel and another, copartners, 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 25th day of May, 1911, denying the defendants’ motion to vacate an order, for - the examination of the defendant Felstiner before trial.

Appeal by the defendant, Fred C. Whitney, 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 10th day of August, 1911, denying the defendant’s motion to vacate an order for his examination before trial.

Cross-appeals by the petitioner, Leopold Alfred Meyer, and by Edward Eobitzek and another, from an order of the-Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1911..

<p>Pleading — action for breach of contract employing actor — complaint not stating cause of action.</p> <p>A complaint in an action for breach, of contract which, merely alleges that the defendant employed the plaintiff as an actor and agreed tó pay him a certain sum weekly “for each and every week that the plaintiff publicly appeared and performed ” does not state a cause of action. This, because under the contract as alleged it was optional with the defendant whether it would give the plaintiff actual employment or not, and there is no. allegation showing that the plaintiff has not been fully paid for such time as he actually performed.</p>

<p>Mechanic’s lien — lien on municipal improvement — defective notice — dismissal of complaint — dismissal of suit as to defendants who have not preserved their lien failure to comply with Lien Law, section 18.</p> <p>A complaint in a suit to foreclose a mechanic’s hen upon a municipal improvement should be dismissed where the notice of lien fails to state the date When the amount claimed became due.</p> <p>So, too,' the suit should be dismissed as against other lienors made'parties defendant where they failed to keep then" lien alive, as required by sec tion 18 of the Lien Law, by neglecting to serve a Us pendens within three months, or by serving an answer on the other parties within that time, or by applying to the court for an order continuing their liens.</p> <p>A mechanic’s lien upon a municipal improvement is not kept alive by the fact that the lienors are made parties defendant in a suit of foreclosure brought by another lienor, as section 17 of the Lien Law relates solely to hens upon private property.</p> <p>There is a clear-cut distinction between liens upon- private property and hens upon funds accruing to contractors for a public, improvement.</p>

<p>Crime — procedure — removing indictment to Court of General Sessions — motion by defendant —appeal—record.</p> <p>By subdivision 6 of section 38 of the Go.de of Criminal Procedure a Trial Term céthe Supreme Court in New York county is authorized to send an indictment found therein for a crime triable at the Court of General Sessions of the city and county of New York to said court for trial.</p> <p>And under subdivision 3, section 61 of the Code of Criminal Procedure the Court of General Sessions has power to try an indictment so sent to it.</p> <p>There is, however, no provision in the Code of Criminal Procedure allowing á defendant to move to have an indictment sent from the Supreme Court to the Court of General Sessions. Such removal must be by action of the court while it is in session.</p> <p>An appeal from an order of a Trial Term of the Supreme Court sending an indictment to the Court of General Sessions for trial will not be entertained where there is nothing in the record to show that the term of court at which the order was made had adjourned or had in any way lost jurisdiction of the indictment when the order was made.</p> <p>This is so although the order as entered on the minutes of the court recites that it was granted on defendant’s motion. " .</p> <p>An appeal in a criminal action lies only in such cases as are provided for by the Code of Criminal Procedure.</p>

<p>Appeal'by the plaintiff, Jane A. Cooper, as administratrix, etc., from two jndgmeüts of the Supreme Court, one in favor of the defendant Fidelity Development Company,/entered in the office of the clerk of the county of New York on the 24th day of March, 1911, and the other in. favor of the defendant Bronx Gas and Electric Company, entered on the 4th day of April, 1911, upon the dismissal of the complaint by direction of the court on the plaintiff’s opening’ as to both defendants on a trial at the New Yolk Trial Term.</p>

Appeal by the defendant, Henry Phipps, 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. February, 1911, upon the verdict'of a jury for $5,000, and also from an order entered in said clerk’s office on the 3d day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Samuel S. Mittenthal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1911, upon the verdict of a jury rendered by direction of the court. ■

Appeal by the defendants, Adolph Oppenheim and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of January, .1911, 'upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 10th day of January, 1911, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Ada Louise Simis 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 28th day of February, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court m favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1910, upon the verdict of' a jury for $1,838, and also from an order entered in said clerk’s office on the Ith day of December, 1910, denying the defendant's motion for a new trial made upon the minutes. y' .

Appeal by the defendant, Catherine Fitzgerald, from a judgment of the- Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the.7th day of December, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Herbert E. Bowen, 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 May, 1911, suppressing certain depositions theretofore taken, herein.

Appeal by the relator, Max Steinert, from an order denying the relator’s motion for a- mandamus compelling the respondents to accept for filing an independent certificate of nomination. .

<p>Elections — refusal of candidate to accept nomination — nomination of substitute.</p> <p>Where a party nominee has duly declined the nomination and filed a certificate to that effect with the board of elections as required by the statute, two of a committee of three appointed by the convention pursuant to section 135 of the Election Law are entitled to nominate a person in his place by filing a new certificate.</p>

Appeal' by the defendant, Orion H. Cheney, as Superintendent of Banks, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 1st day of March, 1911, upon the decision of the court, rendered after a trial at the Mew York Trial Term, a jury having been waived.

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

<p>See head note in Harnickell v. Omaha Water Co. (ante, p. 693).</p>

<p>Will — action under section 2653a, Code Civil Procedure —when granddaughter of testatrix not entitled to sue — pleading — conclusion of law — demurrer.</p> <p>A granddaughter of a non-resident testatrix who died leaving only personal property in this State, and who was not mentioned in the will, is not entitled to maintain an action under section 2653a of the Code of Civil Procedure to set aside a probate of the will in this State merely ^because she survived the testatrix and is a beneficiary under the will of her father, who, under a subsequent will made by the testatrix and duly probated in the foreign jurisdiction, was bequeathed part of the personal estate situated here.</p> <p>Such granddaughter is not one of the classes of persons authorized by section 2653a of the Code of Civil Procedure to maintain an action thereunder, and the right to maintain the action is wholly statutory.</p> <p>The granddaughter cannot claim as ah “heir” under said section where the estate consists solely of personal property.</p> <p>An allegation that the plaintiff is next of kin of the decedent is a mere conclusion of law not admitted by demurrer.</p>

Appeal by the defendant, the Home Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 23d day of November, 1910, denying the defendant’s motion for a new trial made upon the minutes.

'Appeal by the relators, Oliver. S. Brown and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of August, 1911, denying the relators’ motion fór a peremptory writ of mandamus directing respondent to audit and allow a claim and to draw a warrant for the same. .

Appeal by the- defendant, The American Label Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the. clerk of the county of New York on the 7th day of August, 1911, as denies in part the defendant’s motion for a bill of particulars.'

<p>Appeal by the defendant, Henry L. Hill, from -a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of December, 1910, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 29th day of December, 1910, denying the defendant’s- motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Jefferson D. Bremer, from an order of the Supreme Court, made at'the New York Special Term and entered in the office of the clerk of the county of New York on. ■ the 14th day of June, 1911, vacating a warrant of attachment theretofore granted herein.

Appeal by the plaintiff, Grace Dougherty, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the. office of the clerk of the. county of New York on the 14th day of February, 1911, upon the dismissal of the complaint by direction of the court as to the defendant The City of New York at the close of the plaintiff’s case on á trial, at the New York Trial Term, and as to the defendant Bradley at the close of the whole case.

Appeal by the defendant, Ullman B. Soule, 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 14th day of March, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to. the complaint.

<p>Court — jurisdiction — election of officers of foreign corporation— deposit of sto.ck in escrow —injunction restraining depositary from exercising rights of stockholder.</p> <p>The courts of this State will not undertake to set aside an election of officers of a foreign corporation or restrain their official action.</p> <p>But where the majority of the stock of a foreign corporation was placed in escrow in the hands of an attorney to be held by him for delivery to a person who had an option to purchase within one year,- and the attorney is charged with fraudulently inserting a provision in the contract whereby he was authorized to hold the stock until the expiration of three years, the courts of this State may, where the one having the option has elected not to purchase, enjoin the attorney from exercising any of the privileges of a stockholder as respects the shares held as trustee.</p>

Appeal by the plaintiff, Helene Pagenstecher, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1911, denying the plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiff, Catheryn McMahon, 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 9th day of December, 1910, setting aside a verdict in favor of the plaintiff -for $3,500 and granting the.defendant’s motion for a new trial made'upon the minutes.

<p>Appeal by the defendant, Abraham Alexander Edelman, .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 1st day of December, 1910, upon the verdict-of a' jury, for $500, and also from an order entered in said clerk’s office on the 23d day of December,. 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Arpe at, by the defendant, Frank 0. Hurley, 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 13th day of April, 1911, upon the verdict of a jury for $2,455.87, and also from an order entered in said clerk’s office on the 19 th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the. defendants, Charles J. Pelta and another, doing business under the firm name, etc., from an order of the.

Appeal by the defendants, Fannie Wood and others, from cer-' tain parts of a judgment of the Supreme Court in favor of the plaintiff and the defendant Leigh Richmond Brewer, entered in the office of the clerk of the county of New York on the 25th day of March, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Henry W. Mahar, 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 23d day of March, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff.

<p>Municipal corporations — municipal contract, city of New York — contract for work less than $1,000 in value — conditions precedent to recovery.— audit of claim — pleading — failure to allege'value of work — contract itself not evidence.</p> <p>The validity of a municipal contract must be determined under the city charter as it existed at the time the contract was made.</p> <p>A contractor suing the city' of New York on a contract for work of a value' less than $1,000 awarded' to him without public bidding in 1903 when section 419 of the charter of 1901 permitted such contract to be made, must in order to recover show that his claim was audited by an auditor of accounts, or the fair value of his work and materials, as required by section 149 of the said charter</p> <p>As section 149 of said charter provides that on the question of reasonable value of work done, no testimony shall be admitted to show an agree ment by any of the municipal authorities to pay a larger sum than the amount audited by the department of finance, an allegation in the complaint that the city agreed to pay a certain sum is no proof that the sum agreed to be paid was the fan- value of the work and materials.</p>

Appeal by the defendant, The Philadelphia Casualty Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of January, 1911, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

. Appeal by the defendant, Guiseppe Castaldo, from a judg-. nient of the Court of General Sessions of the Peace in and for the county… Held: the same being a deathly and dangerous weapon, wilfully and feloniously did then and there shoot off and discharge, with intent him, the said Pasquale Alloca, thereby then and there feloniously and. wilfully to kill, against the form of the statute in such case made-. and provided,- and against the peace of the People of the State of…

Appeal by the plaintiff, Giovanni Oarozza, 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 17th day of February, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff.

Motion by the plaintiff, Harriet Nugent, an infant, to vacate an order granting a new trial. Also, a motion for the reinstatement of the respondent, Benjamin Oppenheim.

Appeal by the defendant, Bernard Friedman, 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 11th day of November, 1910, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of January, 1910, upon the verdict of a jury, and also affirming an order of said City Court denying the defendant’s motion for…

Appeal by the plaintiff, Joseph L. Graf, from an order of the Appellate Term of the Supreme Court bearing date the ' 5th day of January, 1911, and entered in the office of the clerk of the county of New. York, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered upon the verdict of a jury, and granting a new trial,

Appeal by the plaintiff, the Central Union Gas 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 17th 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.

Appeal by the defendants, Minnie A. Indelli 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 19th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of October, 1910, denying the defendants’ motion for a new trial made upon the minutes,

Appeal by. the defendant, the Trustees' of. the Canton Christian College, 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 23d day of June, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint in an action upon a covenant of warranty.

<p>Practice — trial — motion for direction of a verdict — power of court to submit issues to jury — principal and agent r-acceptance of benefits — evidence.</p> <p>A party who has moved at the close of a trial for the direction of a verdict may withdraw his motion at any time before the directed verdict is rendered and request to be allowed to go to the jury upon specific questions of fact.</p> <p>The court may, of its own motion, submit to the jury all the issues, or such issues as it deems to exist, even though both parties have moved • for the direction of a verdict.</p> <p>One who has accepted the benefits of a contract made by another as its agent cannot prevent the one with whom the contract was made from showing what the terms were on the ground that the alleged agent had no authority to make the contract.</p> <p>Evidence in an action to recover for work, labor and services performed and materials furnished in repairing an automobile examined, and held, that a judgment of the Oity Court rendered on a verdict in defendant’s favor, which had been reversed by the Appellate Term, should be reinstated.</p>

Appeal by the plaintiff, Mary Agnes Sheppard, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 27th day of February, 1911, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants,. Frank Zerillo and others, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered against the defendants, on the 9th day of March, 1911, convicting them of the crime of having made, as Republican primary election inspectors, false statements of the result of the canvass of ballots, with notice of an intention to bring up for review on such appeal certain intermediate orders and certain…

<p>Banking — bills and notes — agreement to accept draft --- termination of liability.</p> <p>Ah English company having contracted to purchase certain roller skates in this country, made arrangements with a New York bank to honor drafts drawn by the vendor when accompanied by a bill of lading. The vendor wrote the New York bank a letter asking about the credits used, to which the bank replied stating the amount of the credit and that the same could be availed of by sight drafts drawn by the vendor on the English firm when ¿ccompanied by bills of lading covering the shipment of merchandise for the same amount. After some shipments had been made, the English firm became dissatisfied with the quality of the goods and canceled the credit in the bank. Under its agreement the bank was subject to the control of its London correspondent in opening and canceling credits, although this was unknown to the vendor. Later a draft, duly accompanied by bills of lading, was presented to the New York bank for payment and payment was refused. The draft and bill of lading were returned to the vendor and finally retained by it: Correspondence between the vendor and the English company ensued, and finally the vendor directed the express company which held the goods covered by the bill of lading to turn them over to the English company for sale. The vendor never,received payment for these goods and sued the New York bank to establish its liability for the amount of the draft which it had rejected. It was conceded that the defendant never had any property belonging to the English company except the credit established through the. company’s London bankers. ■</p> <p>Held, that, if it were conceded that the letter of the New York bank to plaintiff constituted a contract to honor the drafts, its liability was limited to such as were accompanied by bills of lading covering goods to the amount thereof;</p> <p>That when plaintiff finally retained the bill of lading attached to the last draft and directed the disposition of the goods covered thereby, it ter-' minated any right of recourse it might have had against the bank, for it thereby deprived it of the security to which it was entitled against any advances made on the account of the English company.</p>

Appeal by the plaintiff, Louis Ettlinger, 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 4th day of May, 1911, affirming a judgment of the City Court of the city of New York in favor of the defendant, entered in. the office of the clerk of said City Court on the 20th day of January, 1911, upon the verdict of a jury, and also affirming an order entered in the office of the clerk of said court on…

Charges by the Bar Association of the city of New York against the respondent, an attorney of this court, as being guilty of unprofessional conduct in his office of attorney and counselor at law,

<p>Appeal by the defendant, Henry L. Prager, 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, 1-911, reversing an interlocutory judgment of the City Court of the city of New York, which overruled the plaintiffs’ demurrer, to a defense and to.a counterclaim set up in the defendant’s answer. .</p>

<p>Attorney disbarred.</p> <p>Attorney at law disbarred for forging the indorsement of a cheek, appropriating a portion of the proceeds, and for advising a client under ■indictment to forfeit his bail.</p>

Appeal by Frederic J. Swift from an order of the Supreme Court,.made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1911, directing him to forthwith deliver to J. Noble Emley, Esq., the present attorney for the defendant Oonlon, “.all papers, documents, letters and exhibits and all papers in any way relating to this action ” now in his hands, and also, as stated in the notice of appeal, from an…

<p>Contract — municipal contract — privilege to sort refuse — when no breach by city — estoppel —right of city to do work without reletting contract — damages — penalty — harmless error.</p> <p>Where a contract under which the contractor was to pay the city of New York a certain sum per week for the privilege of sorting and appropriating refuse at thirteen specified dumps and two incinerators provided-that the contractor in bidding for the privilege must satisfy himself by personal examination of the proposed work and. by such other means as he might select as to the .quantity, quality and nature of the work, and ■the value of the privilege, and should not after the submission of the bid assert that there was any misunderstanding in regard to the same, and that under no circumstances would rebates or refunds be allowed, the contractor is estopped from claiming that there was a breach of contract by the city because one of the incinerators became out of order by reason of fire.</p> <p>It is no defense to' an action on the bond of such contractor that the city, being unable to find another contractor, had the work done by the week without advertising and reletting the contract, if the refuse was accumulating and became a menace to public health.</p> <p>Although in an action on said bond the court erred in holding that it pro- ■ vided for liquidated damages instead of for a penalty the error was harmless where the proof shows that the damage to the city by the contractor’s default was largely in excess of the amount of the penalty.</p> <p>Appeal by the defendant, Michael Palladino, from a judgment of the Supreme Cotirt in favor of the' plaintiff, entered in the office of the clerk of the county of New York on the 21st day of December, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 20th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Herman Myrenberg, from a judgment- of the Court of Special Sessions of the Peace of the city of New York, rendered against the defendant on the 5th day of March, 1910.

Appeal by the defendant, The New York Times 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 15th day of April, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, The American Palace Oar 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 9th day of October, 1911, denying the defendant’s motion to vacate a warrant of attachment Upon the original papers, and also from an order entered in said clerk’s office on the 19th day of October, 1911, denying the defendant’s motion for similar relief made upon affidavits.

<p>Bills and notes — non-negotiable promissory note payable upon demand — defenses.</p> <p>A dated writing whereby the signer acknowledges an indebtedness to a specified person for services rendered for which she promises to pay a specified sum and further stating “ in the event of my death I hereby authorize and direct the payment of the. same out of the funds of iny estate ” is a promissory note payable upon demand.</p> <p>The direction for the payment out of the estate is mere surplusage ánd does not postpone the time of payment until the death of the maker. Such instrument while a promissory note is non-negotiable, and hence all defenses are available.</p>

<p>Appeal by the plaintiff, the Bankers Surety 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 5th day of June, 1911.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 6th day of January, 1011, upon the verdict of a jury, and from an order entered the same day denying a motion for a new trial.</p>

<p>Appeal — discretionary order.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 11th day of May, 1910, awarding an injunction and damages.</p>

■Certiorari issued out of the Supreme Court and attested on the 21st day of June, 1910, to review the dismissal of the relator.

<p>Appeal from a judgment entered in the New York county clerk’s office on the 11th day of May, 1910, awarding an injunction and damages.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 13th day of August, 1910, after a trial at Trial Term, before the court without a jury, a jury having been waived.</p> <p>Judgment affirmed, with costs.</p>

<p>Appeal from a judgment and order of the Court of General Sessions of the Peace in and for the county of New York, entered on the 18th day of April, 1911, sustaining a demurrer to an indictment charging defendant with a violation of section 290, subdivision 3, of the Highway Law,* as added to the law by chapter 3'74 of the Laws of 1910. Judgment and order affirmed on the opinion of the court below. (Reported in 70 Misc. Rep. 433.)</p>

Appeal by The Brie Railroad Company from an order of the Supreme Court, entered in the Brie county clerk’s office on the 20th day of September, 1910, denying a motion to have the report of the commissioners sent back with instructions to separate the award into the cost of land taken and the damage to certain property, and also from an order entered on the 4th day of August, 1910, confirming the report of the said commissioners.

Appeal by the plaintiff from part of an order of the Special Term, entered in the office of the clerk of the county of Massau on the 22d day of March, 1911.

Appeal by the petitioners, constituting the board of water supply of the city of Mew York, from part of an order of the Special Term, entered in the office of the clerk of Orange county on the 7th day of January, 1911.

<p>Appeal from a judgment in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 33d day of Movember, 1910, and also from an order entered in said office on the 1st day of December, 1910, denying a motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Queens, made on April 27, 1911, setting aside a judgment in his favor.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 23d day of January, 1911, in favor of the plaintiff; also from an order entered in said clerk’s office on the 23d day of February, 1911, denying a motion for a new trial.

Appeal.by the petitioner, Pasquale Auletta, from an order of the Special Term, entered in the office of the clerk of the county of Westchester on the 36th day of May, 1911. ' ,

<p>Mortgage — agreement to hold part of money, for stated-use — disposition of sum. .</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the . city of New York, borough of Brooklyn,.rendered on the 6th day of February, 1911..</p>

<p>Appeal from part of an order, bearing date the 13th day of July, 1911, appointing a referee.</p>

. Appeal from an order entered in the New York county clerk’s office on the 2d day of June, 1911, denying a motion to modify a decree with respect to alimony.

<p>Appeal from an order entered in the New York county clerk’s office on the 11th day of July, 1911, as resettled by an order entered on the 2d day of August, 1911, appointing a referee to hear and determine, and also from part of the order resettling the first order.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 28th day of July, 1911, denying the plaintiff’s motion for judgment on the pleadings and sustaining the defendant’s, demurrer to the complaint.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 7th day of July, 1911, denying a motion to punish the defendant for contempt.</p>

<p>Stay — refusal to certify questions to Court of Appeals.</p>

<p>Attorney— discipline — suspension.</p>

<p>Appeal from a judgment entered on the 14th day of June, 1911, upon the decision of the court rendered after a trial at Special Term.</p>

<p>Application of the Association of the Bar to disbar an attorney.</p>

<p>Discovery — examination of party before trial — scope. .</p>

<p>Appeal from a judgment entered on the 17th day of April, 1911, on a verdict for $500 and from an order entered on the 15th day of April, 1911, denying a motion for a new trial.</p>

<p>Trust — removal of one of several trustees — lack of harmony — discretion. of court.</p>

<p>Appeal from an order sustaining objections to a certificate of nomination.</p>

<p>Appeal from an order sustaining objections to a certificate of nomination, etc.</p>

<p>Appeal from an order sustaining objections to a certificate of nomination as candidate for alderman, thirty-second district.</p>

<p>. Petition of the Bar Association of the city of New York to discipline the respondent for professional misconduct.</p>

<p>Charges by the Association of the Bar of the City of New York against the respondent for professional misconduct.</p>

<p>Appeal from an order entered on the 3d day of October, 1911,' granting a motion to resettle findings, etc.</p>

<p>Appeal from an interlocutory judgment, entered on the 13th day of June, , 1910, sustaining the defendants’ demurrer to the plaintiff’s amended complaint.</p>

<p>Libel— charging one of connection with murder — innuendo.</p>

<p>Crime — defrauding person by giving false weight.</p>