Volume 147 — New York Appellate Division Reports

Appeal by the plaintiff, the Union Bank of Brooklyn, from a judgment of the County Court of Kings county, entered in the office'of the clerk of said county on the 8th day of February, 1911, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the plaintiff, Abraham Bosenblum, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 8th day of February, 1911, dismissing the complaint on the merits. .

Appeal by the defendant, Henry J. Hartig, as receiver, etc., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 26th day of June, 1911.

Appeal by the defendant, The Erie Railroad 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 Mth day of January, 1911.

Appeal by the plaintiff, Herbert J. Oallister, from- a judgment of the Munieipal Court of the city of Hew York, borough of Brooklyn, in favor, of the defendant, rendered on the 12th day of May, 1911, dismissing the complaint upon the merits.

Appeal by the defendants, Kate Burchell and another, from .a judgment of the Municipal Oourt of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 2d day of May, 1911. ' .

<p>Appeal- by the defendants, Louis Borgenicht and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on' the 9 th day. of May, 1911.</p>

<p>Railroad — master and servant — negligence — death of motorman — contributory negligence — section 42a of the Railroad Law.</p> <p>Where a motorman on a street railway is killed by the negligence of a fellow-motorman in operating his car the plaintiff is entitled ,to the benefit of section 43a of the Railroad Law.</p> <p>What constitutes reasonable care on the part of a decedent depends largely upon the nature of his duties and what he has a right to expect from the surroundings.</p> <p>Plaintiff’s intestate had run his car into the car barn and was engaged in preparing it to remain over night when a second car came into the barn and stopped about four feet away. He was standing on the track placing the trolley pole of his car, when the other ear suddenly started up and he was crushed to death between them. The cause of the sudden starting of the car was the negligence of the other motorman in making. . a contact of the trolley pole of his car with the wire while his power was still .turned on. This motorman had a full opportunity to observe, the decedent. ■</p> <p>Held, that the jury might find that the decedent had hot been guilty of contributory negligence, and a judgment for the plaintiff should be affirmed.</p>

Appeal by the defendant, Matilda Sussman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of December, 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, Myron D„ Turner and others, composing the copartnership, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of February, 1911, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the 21st day of February, 1911, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Benjamin E. Valentine, from a judgment of the Supreme Court, rendered against him on the 24th day of February, 1906, after a trial at the Nassau Trial Term convicting him of the crime of forgery.

Appeal by the plaintiff, George 0. De Lacy, from, an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 22d day of June, 19Í1, dismissing the complaint and vacating a lis pendens for a failure to prosecute the action.

Appeal by the plaintiff, Carrie B. Coates, from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk of the county of Queens on the 1st day of December, 1910, upon the decision of the court rendered after a trial at the Queens County Special Term.

Appeal by the defendants, Margaret Archer, individually and as administratrix, etc., and others, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eockland on the 1st day of November, 1910, upon the decision of the court rendered after a trial at the Eockland Special Term.

Appeal by the defendant, John L. Radermaoher, from a judgment' of the Supreme Gotirt in favor of the plaintiff, enteréd in the office of the clerk of the county of Kings.on the 11th day of July, 1910, upon the verdict of a jury for $6,320, as' amended by an order entered in said clerk’s office on the 27th day of July, 1910, and -also from an order entered on the 11th day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James 0. Fargo, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the Utli day of November, 1910, upon the verdict of a jury for $1,8J5; also from an order entered in said clerk’s office on the 3d day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes; also from an order made at the beginning of the trial denying the…

<p>Discovery — examination of defendant before trial — suit to foreclose, mechanic’s lien — expense of defendant in completing building.</p> <p>Where the owner of realty, defendant in a stiit to foreclose a mechanic’s lien thereon, denies that the cost of completing the building after a default by the principal contractor was the sum stated by the plaintiff and alleges that it was a much larger sum, the plaintiff is entitled to examine the defendant before trial as to the cost of completing the building.</p> <p>The plaintiff mnst show the cost of completing the building as part of his ' affirmative ease and hence the cost is a fact material to the issue.</p> <p>The examination should not be denied because the plaintiff may subpoena the defendant, or because the. defendant stipulates to be present at the trial and be sworn as a witness, or because the evidence sought can be' obtained through other persons;</p> <p>The sum expended by the defendant in completing the building after the default of the contractor is not necessarily a legal charge against the contractor, as he is only entitled to the benefit of such sum as was neees- - sarily expended in completing the requirements of the contract. •</p> <p>An examination of the defendant should not be denied because the plaintiff demanded a bill of particulars of the gross amounts paid by the defendant to workmen or contractors for repairing defects and in purchasing material. ■</p>

Appeal by the plaintiff, Harry Epstein, 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 3d day of November, 1910, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.

<p>Debtor and creditor — loan to enable trust company to resume business — contract construed—when acquisition of surplus by trust company prerequisite to maturity of loan.</p> <p>Where directors of a trust company in the hands of a receiver made a loan to the company for the purpose of enabling it to resume business, with a proviso that the loan should mature and become payable “whenever ■ the surplus of said Trust Company shall exceed the sum of one hundred fifty thousand' dollars, such excess shall be applied to the repayment of said loan, but no such application of excess ■* * * shall be made upon such loan, except in periods of six months each after the date hereof and a lapse of six months between such payments,” the loan to bear interest at four per cent, the provision that the loan should only become due when the surplus accumulated was a condition precedent to an action to recover the sum loaned.</p> <p>Although the loans of the various directors were paid to a “resumption committee ” appointed to further the scheme before the execution of the agreement, the loan itself was not then completed, for the committee was merely a medium to transmit the money to the trust company when the agreement was delivered. -</p>

Appeal by the deféndant, the Brogan Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the' clerk of the county of Kings on the 6th day of February, '1911, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 11th day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>.Master and servant — Employers’ Liability Act — defective notice — injury by fall of derrick — fellow-servant — acts not involving superintendence.</p> <p>A notice under the Employers’ Liability Act which merely states that the plaintiff while employed by the defendant on a certain day “was directed tó go to the top of the mast of a derrick then being used by your company on a job at or near the corner of Flushing and Kent avenues, • Brooklyn, for the purpose of assisting in moving the steel boom of said derrick from one side of a guy rope supporting said derrick to the other side of said, guy rope; that while engaged in this work said derrick fell over” and injured the plaintiff, is insufficient in that it does not properly state the physical cause of the injury.</p> <p>Where the fall of the derrick was caused by the failure of an employee to fasten down the boom of the derrick after having been told to do so by the superintendent, the omission was a mere detail of the work and not a failure in an act of superintendence if the employee was given no discretion to determine whether or not the boom should be fastened.</p> <p>Even if it be assumed that a direction to the plaintiff to go the top of the derrick given by the person who had failed to secure the boom as ordered by the superintendent was an act of superintendence on his part — which, it seems, it was not under the circumstances — the direction was . improper only because of the previous negligence of the plaintiff’s fellow-servant in disobeying the instruction to fasten tlie boom and for that failure the master is not liable.</p> <p>Hirschberg, J.., dissented.</p>

Appeal by the defendant, Agnes F. Redwood, 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 30th day of September, 1910, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.'

<p>Principal, and agent — proof not showing ratification of unauthorized contract to sell lands —■ parent and child — no presumption of agency — estoppel — silence of principal.</p> <p>Suit to compel a" vendor of lands specifically to perform a contract to convey. The contract itself was executed by the mother of the owner, and the plaintiff, although not attempting to prove that the mother was duly authorized as an agent, contended that the owner had subsequently ratified the contract.</p> <p>Evidence examined, and held, insufficient to establish a ratification.</p> <p>The mere fact that the person who executed the contract of sale was the mother of the owner raises no presumption of general agency.</p> <p>The fact that the owner of the land stated to the vendee that he was asking more than the contract called for by asking for possession before the day set for passing title and that a compliance with the request would inconvenience her in moving out was not a ratification.</p> <p>The owner was not at that interview obliged to disavow the contract and her silence created no estoppel in pais against her so as to prevent a subsequent repudiation of the contract, for the vendee’s position was not changed to his injury.</p> <p>In order to create a ratification of a contract made by one having no authority, an intention to ratify based upon full'knowledge of the facts is necessary.</p>

Appeal by the defendants, J. Gabriel Britt and others, composing the board of elections, etc., from an order of the County Court of Kings county, made on the 21st day of September, 1911, granting a peremptory writ of mandamus.

Appeal by the defendant, the Midland Railroad Terminal Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 20th day of March, 1911, upon the report of a referee appointed to hear, try and determine the issues.

Appeal by the defendant, the Moon Motor Car 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 2d day of March, 1911.

Appeal by the plaintiff, Baxter Morton, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn in favor of the defendants, rendered on the 5th day of April, 1911.

<p>Appeal by the plaintiff, Regina Lignante, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 8th day of June, 1911, dismissing the complaint.</p>

<p>Appeal by the plaintiffs, Israel Lesin and another, copartners, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 10th day of May, 1911.</p>

Appeal by the defendant, the Middletown, Unionville and Water Gap Railroad Company, from an order of the'Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 9th day of August, 1911, granting the plaintiff’s motion for judgment on the pleadings.

<p>Appeal by the plaintiff, Norwegian Lutheran Trinity Church of Brooklyn and Vicinity, from two orders 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 28th day of April, 1911, and the 29th day of June, 1911, respectively, the first' denying the plaintiff’s motion for an order directing the justice before whom the action was tried to pass upon certain propositions of fact and questions of law, and the second denying its motion for a resettlement of. the case on appeal.</p>

<p>Process — service by publication—when order cannot be made — action not arising in this State —failure to show that defendant has property here.</p> <p>Plaintiff is not entitled to an order for service by publication unless the cause of action arose within the State, or the defendant has property here and the court has jurisdiction of the subject-matter of the action.</p> <p>An action on a judgment obtained in a foreign State is not an action arising within this State.</p> <p>A plaintiff applying for an order of service of summons by publication fails to show that the. defendant has property within this State by merely stating that he has been informed by a certain person that the foreign defendant has an interest in the estate of his deceased father and that a writ of attachment has been issued in this State. This, because it is not shown that a levy has been made under the writ oí attachment, and there is nothing to show that the deceased’s estate is being here administered- or that there is any property of the estate located here. ■ '</p>

<p>Appeal by the defendant, Carl Kindervatter, 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 12th day of May, 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 16th day of May, 1911, denying the defendant’s motion for a new trial, with notice of an intention to bring up for 'review an order sustaining the plaintiff’s demurrer to a defense set up in the answer.</p>

Appeal ' by the plaintiff, David Hirschhorn, from an order of the Municipal Court 'of the city of New York, borough of Brooklyn, in favor of the defendant, entered in the clerk’s office of said court on the llth day of March, 1911, denying the plaintiff’s motion to- vacate an order of dismissal in the above-entitled action.

<p>Discovery — examination before trial — sufficiency of moving affidavits — nature of action — knowledge of persons examined — facts pertinent to issue..</p> <p>A plaintiff moving for an examination of the defendant before trial complies with the requirements of section 872 of the Code of Civil Procedure, poviding that where the action is pending he must show the. nature of the action and the substance of the judgment demanded, if he annexes the pleadings to his moving affidavit and makes them part thereof.</p> <p>An order for an examination of defendants before trial should be granted where the moving papers show that the transactions attacked are peculiarly within the knowledge of the parties! sought to be examined, that it is intended to use their evidence at trial, and the facts to be developed are pertinent to the issues.</p>

Appeal by the defendants, Frank H. Cowperthwait 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 Kings on the 20th day of July, 1910, upon the decision of the court rendered after a trial ‘at the Kings County Special Term.

<p>Appeal by. the defendant, the New York Evening Journal Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day of March, 1911, upon the verdict of a jury for $2,750, and also from an order entered in said clerk’s office on the 29th day of March, 1911, denying ■ the defendant’s motion for a new trial made upon the minutes in an action to recover for personal injuries.</p> <p>The action is brought under the provisions of the Employers’ Liability Act, and the following facts are undisputed:</p> <p>The defendant is the lessee of the eighth floor of the Rhine-lander Building, 232-238 William street in the city of New York, where it conducts the business' of printing and- publishing newspapers, employing three hundred men working in day and night shifts of one hundred men each. The plaintiff at the time of his injury had been in the defendant’s employ as a proofreader for several years. In addition to the eighth floor of the Rhinelander Building the defendant occupied in its business a floor-of an adjoining building, twenty-one inches higher than the corresponding floor of the Rhinelander Building. A door was cut through the wall separating the two buildings, and an inclined passageway formed of narrow maple tongued and grooved boards, with a smooth planed surface upon the upper side, connected the two buildings. On one side of this passageway, was an iron handrail. That part of the passageway within the composing room was a little over thirteen feet long, and the incline to the division wall was twenty-one inches. The proof room, in which plaintiff worked, adjoined the composing room. The passageway in its entirety was twenty-four feet and six inches long, four feet wide, connected the two floors and was used by the workmen as a passage to and-from the working rooms in the Rhine-lander Building to the toilet and lavatory in the adjoining building, and for pushing hand trucks, with iron wheels, to transfer type set in forms from the one building to the other. The floors of the adjoining rooms were _ frequently oiled, and the oil tracked by the shoes of the employees and wheels of the trucks over and upon the passageway floor to such an extent that it had been greasy and slippery for years. This condition of the passageway is shown to have been known to all of the defendant’s employees, and the plaintiff does not deny that he was familiar with it: Some employees had slipped and fallen on the passageway floor and in one or two instances had saved themselves from falling by grasping the handrail. On August 9,1910, the plaintiff passed from the room in which he worked, through the passageway to the toilet. On his return he slipped on the floor of this passageway at a point within the composing room, about five feet from the commencement of the incline, and received the injuries for which he has recovered.</p> <p>At the close of the plaintiff’s case, and again at the close of the evidence, the defendant moved to dismiss the complaint upon the grounds “that the plaintiff has failed to prove facts sufficient to constitute a cause of action, and upon the further ground that the plaintiff has failed to prove that he was in the exercise of due care at the time the accident happened; and upon the further ground that it affirmatively appears that the plaintiff’s negligence contributed to the accident; and upon the further ground that the condition of the passageway mentioned in the testimony was known to the plaintiff; that the plaintiff knew that the passageway was built upon an incline, and that it was smooth and greasy, and that in continuing to use it and going up and down on it he assumed the obvious risks of the business.” Counsel also moved for a new trial on the minutes upon the ground, among others, that the verdict was contrary to the evidence. These motions were denied and exceptions duly taken. The plaintiff admitted that he knew how this passageway was constructed; that it had been traveled daily by scores of employees, including himself, walking and pushing the hand trucks over it; that it was oily and that there was a handrail on its side for the use of those passing oyer it.</p>

Appeal by the plaintiff, Alfonzo Tontiorio, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of Novemhér, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 28th day of November, 1910, denying the plaintiff’s motion for a new trial made…

<p>Appeal by the defendants, the Mack Paving and Construction Company and another, from a judgment of the Supreme Court in favor of the plaintiff and certain ■ Of the defendants, entered in the office of the clerk of the county of Westchester on the 26th day of July, 1910, upon the decision of the court rendered after a trial at the Dutchess County Special Term.</p>

Appeal by the defendants, the Village of Mott’s Point and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the ■ office of the clerk of the county of Nassau on the 28th day of March, 1911, upon the decision of the court, rendered after a trial at the Nassau Special Term, sustaining the plaintiffs’ demurrer to an affirmative defense set up in the answer of the said defendants.

Appeal by the defendant, Henry S. Thompson, as commissioner, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of April, 1911, granting the relator’s application for a peremptory writ of mandamus.

Appeal by the defendant, the Polygraph Printing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office óf the clerk of the county of Kings on the 13th day of June, 1910, upon the verdict of a jury for $685, and also from an order entered in said clerk’s office on the 15th day of June, 1910, denying’ the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Westinghouse, Church, Kerr & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 9th day of December, 1910, upon the verdict of a jury'for $8,000, and also from an order entered in said clerk’s office on the 16th day of December, 191-0, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Lillian Gr. De Severinus, 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 20th day of June, 1911, setting, aside the verdict of a jury in favor of the plaintiff for $5,000, and granting a new trial unless plaintiff should consent to the reduction of the verdict to $1,500:</p>

Appeal by the plaintiff, Joseph D. Tooker, 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 18th day of May, 1911, upon the dismissal of the complaint by direction of the court at' the close of plaintiff’s case on a trial at the Westchester Trial Term.

Appeal by the defendant, the W. F. Powers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day of June, 1911, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 6th day of July, 1911, denying- the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Consumers Brewing Company of Brooklyn, L. I., from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, rendered on the 24th day of January, 1911, dismissing the complaint.

Appeal by the defendant, Edward G-. Vail, Jr., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of May, 1911, after a trial without a jury.

<p>Appeal by the plaintiff, the Borough Bank of Brooklyn, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 20th day of April, 1911.</p>

<p>Appeal by the defendant,. Ephraim Siff, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 14th day of June, 1911.</p>

<p>Appeal by tile plaintiff, Joel A. Halladay, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of-the county of Jefferson on the 9th day of November, 1910, upon the report of a referee dismissing the complaint.</p> <p>The action was commenced on the 28th day of October, 1907, by the filing* of a verified claim by the plaintiff against the estate of Sherman Halladay, deceased. The defendant administrators rejected such claim on December 16, 1907. Consent was filed that the surrogate of Jefferson county might hear and determine the' claim on the judicial settlement of the administrators’ account. A second claim was presented on January 21, 1908, was rejected February 15, 1908, and a like consent was filed that the surrogate might hear and determine the same. On March 25, 1908, the parties agreed in writing that the matters in controversy be. referred to a referee to hear, try and . determine the same. On May 14, 1908, the surrogate approved the reference and an order was duly entered to that effect. The referee did hear, try and determine the matters in controversy with the result above indicated.</p>

<p>Appeal by the defendant, the S. Shopiro 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 17th day of May, 1910, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 15th day of October, 1910, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was commenced on the 6th day of January, 1910, to recover damages for injuries sustained by the plaintiff alleged to have been caused solely through the negligence of the defendant.</p>

<p>Railroad,—negligence -death of pedestrian crossing railroad tracks — proof not justifying recovery.</p> <p>Action to recover for the death of a person who, while using a footpath crossing the defendant’s railroad tracks, which path was well defined and had existed for several years, was struck by a train in the night time. Evidence examined, and Held, that a judgment for the defendant should be affirmed.</p>

Motion by the defendant, the Lehigh Valley Railroad Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Ontario Trial Term in February, 1911.

<p>Appeal' by the plaintiffs, Safford E. North and another, as executors, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orleans on the 5th day of October, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Orleans Trial Term.</p>

<p>Eminent domain —■ construction of street railroad through village — condemnation of way through common — when common not public park — public park defined — compensation ■ where abutting owner has no fee in street — compensation to owner of fee — measure of damages.</p> <p>A common established by a landowner who sold lots surrounding it to various grantees, with rights of access over the common to the village street passing through it, is not a public park, although it is finder the control of the village authorities, if they have merely treated it as a wide street and have not attempted to embellish or ornament the common on either side of the roadway.</p> <p>Hence, such common- is not exempt from condemnation for street railroad purposes under section 108 of the Railroad Law.</p> <p>A public park is an extensive area of land devoted exclusively to the use of the public and' to be ornamented and embellished. An easement or privilege of an individual to occupy or use the same is contrary to an exclusive dominion in the public authorities, the latter being an essential characteristic of a public park.</p> <p>Whether a grantee whose lands abut upon the street takes title to the street depends upon the intention of the parties, where the conveyance in terms does not include any part of the fee.</p> <p>Conveyance examined, and held, that the grantor did not intend to transfer title to a street in conveying lands abutting thereon.</p> <p>It is only where an owner whose lands abut upon a public street owns a fee in the street, or in some part thereof, that he is entitled to compensation when a street railroad condemns a right of way thereover.</p> <p>But the construction!of a street railroad does lay an additional burden ' uponcthe lands of an abutting owner who has a fee in the street, and he is entitled to compensation.</p> <p>Hence, where the grantor of lands surrounding a common subsequently granted a fee therein to a church society owning lands abutting thereon,' the society is entitled to more than nominal damages where a railroad is constructed on a public street running through the common.</p> <p>The damages should include the value of the strip actually taken by the railroad, subject to the right of passage by the public and also subject to easements of ingress and egress held by other abutting owners; also the value of trees destroyed by the railroad and the damages caused to the residue of the church property by then mutilation and destruction. The society should also be compensated for whatever damage may reasonably result to the residue of its contiguous land by reason of the fact .that a portion of its fee</p> <p>Kruse, J,, dissented, with opinion.</p>

<p>Decedent’s estate—failure to reject claim — Statute of Limitations — duty of executor — mutual current account — notice that claim is rej écted — service by mail. ></p> <p>The failure of an executor to reject a claim against the estate until over a year after its presentation does not establish the claim.'</p> <p>An executor is bound to interpose the defense of the Statute of Limitations. Where a miller kept an account of goods furnished on the order of a physician and the physician kept an account of sums due from the miller for professional services rendered, there was a mutual, current account within the meaning of section 386 -of the Code of .Civil Procedure, so that the cause of action accrued from the time of the last item in the account on either side.</p> <p>Mutual current accounts need not be entered in a book nor reduced to writing.</p> <p>Where the attorney for an executor served notice of the rejection of a claim against the estate upon the attorney for the estate of the deceased claimant and thereafter mailed a similar notice to the executor of the claimant, the Statute of Limitations began to run from the time the last notice was served, and the statute providing for double time where service is made by mail obtains, there being no proof that the attorney for the claimant’s estate had specific authority to receive the notice.</p>

<p>Highway — negligence — injury through stone piled along highway — towns.</p> <p>A town is not liable for injury to a pedestrian who while leading a horse on the highway in a sparsely-settled district was injured by reason of the fact that the horse was hit while, passing a vehicle, and jumped so that the plaintiff was dragged over a pile of stones which had been piled at the roadside by the town superintendent while the highway was under repair, where the highway was from ten and one-half to twelye feet wide and the stones did not decrease its normal width.</p> <p>The town superintendent .was. not negligent in piling the stones by the • roadside and leaving them for seven days while engaged in,repairing other portions of the highway.</p> <p>Appeal by the defendant, The Town of Osceola, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 9 th day of March, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the. same day denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Highways — negligence — location of telephone poles on rural highway —when no negligent obstruction of road—failure to comply with ' order of highway commissioner — effect of acquiescence of commissioner— when town not liable for injury ’ received by one using highway.</p> <p>Where a telephone company erects poles on a public highway under the authority of section 102 óf the Transportation Corporations Law it must place them so that they will not interfere with, or make dangerous, the use of the highway by the public.</p> <p>But where a highway in a rural community is twenty-fout feet wide a telephone company is. not negligent in placing its poles two and a half feet outside the traveled roadway, and heneé is. not liable for injuries received by a person who was thrown against such pole when the horse which she was driving ran away.</p> <p>The telephone company is not liable by reason of the fact that, although directed by the commissioner of highways to place the poles further from the roadway, it did not do so because it was impossible without destroying shade trees to which the owners objected, where the commissioner knowing the location of the poles did hot object or ask that they’ be moved.</p> <p>The commissioner of highways was not negligent so as to charge the town by allowing the telegraph poles to remain two and one-half feet outside the traveled highway.</p>

Motion by the plaintiff, The People of the State of New York, to dismiss the defendant’s appeal from an order refusing to quash an indictment.

Appeal by the plaintiff, Martha Tham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 6th day of June, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Erie Trial Term.

Appeal by the defendant, the Empire Engineering Corporation, from a judgment of the Supreme Court in favor of the » plaintiff, entered in the office of the clerk of the county of Oneida on the 14th day of March, 1911, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 17th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Sarah A. Booth, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the, county of Jefferson on the 14th day of March, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Jefferson Trial Term, and also from an order entered in said clerk’s office on the 7th day of March, 1910, directing the dismissal of the complaint.

Appeal by the defendant, The Variety Iron and Steel Works • 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 16th day of February, 1911, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 21st day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Bills and notes— certificate of deposit in name of husband and wife — right of survivorship—action by survivor to recover funds —party — representative of deceased husband — transfer without indorsement. -</p> <p>Where a wife deposited money in the bank in the name of her husband and herself for the sole purpose of creating the right of survivorship and received a certificate of deposit therefor standing in the names of both, she alone is entitled to the fund on the death of her husband, and she may maintain an individual action to recover the deposit without joining her husband’s personal representative as party plaintiff.</p> <p>Although the money represented by the certificate of deposit standing in the name of the husband and wife was payable “ on the return of this certificate properly indorsed,V the wife, being entitled to the whole fund on the death of her husband, was not required in order to recover the same to obtain the indorsement of her husband’s personal representa- ■ tive, notwithstanding that section 71 of the Negotiable Instruments Law provides that, with some exceptions,' where an instrument is payable to the order of two- or more payees all must indorse.</p> <p>A negotiable instrument may be transferred without indorsement and the transferee becomes the owner. He may maintain an action thereon in ■ his own name, subject, however, to the equities which the debtor had at the time of the transfer against the claim while in the hands of the previous holder. ...</p> <p>Thus, the certificate of deposit,, though payable to the order of the depositor [on the return of the certificate properly indorsed, may be transferred by the payee without indorsement, and where she owns the whole fund as survivor, her right in no way depends upon a transféifrom or the indorsement of the' certificate by her husband’s personal representative.</p>

Appeal by the plaintiff, Sophia Liesny, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 31st day of October, 1910, upon the verdict of a jury, and also from an •order entered in said clerk’s office on the 14th day of November, 1910, denying the plaintiff’s motion for a new trial made upon the minutes..

<p>Appeal by the defendants, Thomas J. Clary 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 Seneca on the 13th day of May, 1911, upon the decision of the court, and also from an order entered in said clerk’s office on the 29th day; of April, 1911, granting the plaintiff an extra allowance.</p>

Appeal by the defendant, The Brooklyn Cooperage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of ¡November, 1910, upon the decision of the court rendered after a trial at the Albany Special Term.

Appeal by-the defendants, George J. Go.uld„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 Saratoga on the 3d day of January, 1910, upon the decision of the court, rendered after a trial before the court without a jury at the Saratoga Trial Term, requiring the said defendants to pay to the Commonwealth Trust Company certain sums of money claimed to have been lost to said company by reason of…

Appeal, by the plaintiff, the Ontario Knitting Company, from a judgment of the Court of Claims of the State of New York in favor of the defendant, entered in the office of the clerk of said court on the 26th day of September, 1910, dismissing the plaintiff’s claim.

<p>Bankruptcy — damages for failure to fulfill bankrupt’s contract — claim against the bankrupt — setoff in an action brought by' the trustee —burden of proof.</p> <p>Receivers and trustees in bankruptcy are not obliged to continue to perform a contract of the bankrupt, and damages growing out of their failure to do so are properly claims against the bankrupt and not against the receivers or trustees as such.</p> <p>An unliquidated claim for damages resulting from the failure of the receivers and trustees in bankruptcy to continue the performance of a contract made by the bankrupt may constitute a proper setoff against any claim of the bankrupt asserted by the receivers and trustees in. bankruptcy against the other party to the contract.</p> <p>Such right of setoff does not exist, however, as against a claim for services or materials supplied by the receivers or trustees in bankruptcy, even if in so doing the receivers and trustees were simply continuing the performance of a contract which had been partly performed by the bankrupt.</p> <p>In an action brought by trustees in bankruptcy to recover the value of services and materials furnished partly by the bankrupt, pursuant to a contract with the defendant, and [partly by the trustees in bankruptcy in continuing the performance of the contract, the burden is upon the defendant, if he seeks to assert a counterclaim based upon the failure to make complete performance of the contract, to show affirmatively the items of work and materials furnished by the bankrupt in order that the counterclaim' may be allowed only against that part of the claim asserted by the trustees in the right of the bankrupt.</p> <p>Kellogg and Betts, JJ., dissented.</p>

<p>Master and servant — negligence — employee killed by striking an unguarded belt — when not a volunteer.</p> <p>Where an employee of a paper mill had occasion to enter a pit in the floor of the mill for the purpose of examining the mill machinery, and the floor of the pit was covered with two feet of water, and extending across the pit were two steam pipes aiid an unguarded belt, one of the steam pipes being located about four feet from the bottom of the pit and the other about five feet from the, bottom of the pit, and the belt being located about five feet six inches above the lower pipe, it cannot foe said, as matter of law, that the employee was negligent in trying to keep off the pit floor by standing upon the lower steam pipe with the result that his head came in contact with the unguarded belt, or that the employer was not negligent in failing to guard the belt, pursuant to section 81 of the Labor Law.</p> <p>Evidence examined, and held, not to establish, as matter of law, that the employee who went into the pit was a mere volunteer having no Business there.</p>

<p>Appeal by the defendant, the Kinser Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 18th day of March, 1911, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 25th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, William Baldwin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 19th day of June, 1911, upon the' dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Saratoga Trial Term.

<p>Evidence — conclusions of witness — ability to hear whistle.</p> <p>The conclusion of a witness upon the very subject which the jury must decide should not be received, except in cases where from the technical nature of the subject the jury from the evidence would be unable, after: knowing all the facts, to come to a conclusion.</p> <p>On the trial of a negligence case involving a collision between a trolley car and an automobile at á street crossing, in which a question of fact arises as .to whether the whistle on the trohey car was blown, it is improper to allow pedestrians walking- on the road in the vicinity of the accident, and who stated that they did not hear the whistle blown, to state that ■ they were in a position where they could have heard or would have heard the whistle blown, if one had been sounded.</p> <p>Betts, J., dissented.</p>

<p>Contract, of employment, modification of—Statute of Limitations — part payment.</p> <p>Where a contract of employment made in 1890 to commence January 1, ,1891, obligated the employer to pay the employee in addition to his weekly wages the annual sum of $300, payable quarterly in advance, and subsequently and in December, 1893, the employer notified the employee that he would no longer continue the annual payments of $300, and the employee, while not assenting in words to the reduction, neglected to state that he would not submit thereto, and continued in his employment until the year 1910, receiving payment at the reduced rate, the contract of employment must be deemed to have been modified by consent of parties. In any event, no recovery can be had by the employee against the employer for any of the annual payments of $200 except those which became due within six years prior to the commencement of the action.</p> <p>In determining whether a particular part payment made by a debtor to his creditor is effectual to remove the entire indebtedness from the opera- . tion of the-Statute of Limitations, the creditor’s intent in receiving the part payment is immaterial, the determining factor being the debtor’s ' intent in making it.</p> <p>In order to make a payment a part payment within the Statute of Limitations the burden Is upon the creditor to show that it was a payment of a portion of the admitted debt and that it was paid to and accepted by him as such, accompanied by circumstances which amounted to an absolute and unqualified acknowledgment by the debtor of more being due from which a promise may be inferred to pay the remainder.</p> <p>Evidence offered for the purpose of showing part payment of a debt and the consequent removal of the entire indebtedness from the operation of the Statute of Limitations examined, and held,, insufficient for that purpose.</p> <p>Betts, J., dissented.</p>

Appeal by the defendant, Michael J. Crowley, from, a judgment of the County Court of Franklin county in favor of the plaintiff, entered in the office of the clerk of said county on the 8th day of December, 1910, upon the verdict of a jury (except as to a counterclaim which was dismissed by direction of the court), and also from an order entered in said clerk’s office on the k7th day of June, 1910, denying the.defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles Seufert 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 Fulton on the 8th day of March, 1911, upon the decision of the court rendered after a trial at the Fulton Trial Term, ‘a jury having been waived.

Appeal by the defendants, Antonio Scherno 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 Clinton on the 1st day of March, 1911, upon the decision of the court rendered after a trial at the Clinton Trial Term, a jury having been waived.

Appeal by the plaintiff, Sherman A. Genung, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Tioga on' the 26th day of Hay, 1911, striking out certain portions of the plaintiff’s supplemental complaint.

<p>Railroad — negligence — death, of person buying fruit from freight car —duty of railroad company which permits consignees to sell from cars — erroneous nonsuit.</p> <p>A railroad company which knowingly allows the consignee of a car laden ' with fruit to sell the fruit at retail from the car while standing on a side track near a village street, is chargeable with knowledge that purchasers will probably assemble upon or close to the adjoining tracks, and must exercise care in backing cars upon such tracks.</p> <p>One who goes to the fruit car for the purpose of buying fruit does so under an implied license from the railroad, and is not, under the circumstances, a trespasser so as to render the railroad liable only in ease of willful injury. The railroad company must exercise reasonable care not to injure him and give reasonable warning of the approach of cars.</p> <p>Hence, where s,uch intending purchaser was killed by a backing train which came upon him without signal and at considerable speed, it is error to dismiss the complaint in an action to recover for his death.</p> <p>Such intending purchaser was not guilty of contributory negligence as a matter of law in standing near the tracks which were adjacent to the siding. The negligence of the defendant and that of the decedent are for the jury.</p>

Appeal by the defendant, Harry A. Briggs, from a judgment of the County Court of Ulster county in. favor, of the plaintiff, entered in the office of the clerk of said county on the 27th day of February, 1911, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the defendant, Louis La Brake, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Franklin on the 16th day of August, 1911, giving the plaintiff leave to serve an amended complaint.

Appeal by the defendant, the United Traction Company, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 26th day of May, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 27th day of May, 1911,' denying the defendant’s motion for a new trial made upon the minutes.

<p>Supplementary proceedings — failure to appear — contempt—requisites of order — practice — prolonging supplementary proceedings unduly — power of court — collateral attack on judgment.</p> <p>Orders in supplementary proceedings are judge’s orders, not court orders. The proceedings are civil in character. The failure of a judgment debtor to appear as ordered is a civil contempt.</p> <p>The order adjudging a judgment debtor in contempt for failing to appear must recite that the court has found that the failure has been such as to defeat, impair, impede or prejudice the right or remedy of the creditor, otherwise it is fatally defective.</p> <p>While a judgment creditor has the right fully to examine the debtor as to his property, the practice of adjoxirning the proceeding from time, to time merely to prolong it and to annoy the debtor is condemned.</p> <p>The judge has supervisory power over supplementary proceedings pending before a referee and on the application of the debtor should compel then- termination within a reasonable time after a fair' examination. The judgment of a Justice’s Court cannot he attacked inproceedings.sup-. plementary to execution thereon.</p>

Appeal by William Barnes, Jr., from an order of the Supreme Court, made by a justice of the Supreme Court and entered in the office of the clerk of the county of Albany on the 20th day of November, 1911, directing a warrant to issue to the Albany county sheriff, commanding him to apprehend the appellant, and to commit him to jail until he answer certain questions and produce certain books and papers.

Appeal . by the defendants, John É. Kraft, President, and others, constituting the Civil Service Commission of the State of Hew York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 1st day of June,. 1911, directing that a peremptory writ of mandamus issue requiring defendants to rescind and revoke their action 'in. passing a resolution classifying the position of transfer tax…

<p>Decedent’s estate — discovery of assets — evidence — personal transactions with decedent.</p> <p>Where a proceeding for the discovery of assets of an estate is brought against an executrix by her coexecutor under section 2707 of the Code of Civil Procedure and she is examined with respect to personal transactions with the testator, her husband, so as to make her liable to account for notes in her possession, the bar of section 829 of the Code of Civil Procedure is removed and she may on her own behalf testify to personal transactions with her husband tending to show her title to the notes. Smith, P. J., dissented; Betts, J., dissented, with opinion.'</p>

<p>Civil service—refusal of State Civil Service Commission to place the position of special agent in the non-competitive class —discharge of veteran — mandamus to compel reinstatement.</p> <p>The refusal of the State Civil Service Commission to place the position of special agent of the Department of Excise in the non-competitive class is not so palpably erroneous as to justify the Appellate Division in interfering therewith, and- consequently where the State Commissioner of Excise has assumed to dismiss summarily an incumbent of that position who is a veteran, a peremptory writ of mandamus will issue to compel the Commissioner of Excise to reinstate him.</p>

Appeal by the plaintiff,. Herbert McMurray, from a judgment of. the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the lJthday of April, 1911, upon the dismissal of the amended complaint by direction of the court at the opening of the case at the Washington Trial Term.

Appeal by the plaintiff, William H. Parish, as administrator, etc., from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Washington on the 20th day of May, 1911, striking out. as irrelevant and redundant various portions of the complaint.

<p>Will — devise in trust with contingent remainders over—partition — when trustee cannot maintain action — power of sale — consent of contingent remaindermen required.</p> <p>Where a testator devised an undivided two-thirds of his realty to trustees to pay the income to his daughter during her life and during the life of her mother, with a provision that upon the death of either of said persons the corpus should be paid over to-the survivor, - the trustees have legal title only during the lifetime of the one of the two persons named who shall die first, and there is a contingent remainder vesting immediately in possession of the one who survives the death of the other.</p> <p>A substituted trustee has no standing to maintain an action to partition said lands, not being one of the persons mentioned in section 1538 of the Code of Civil Procedure stating who may bring the action.</p> <p>Moreover, where the will empowered the executors and trustees to sell the lands only with the consent of the testator’s wife and daughter, a substituted trustee cannot sell directly, or indirectly through an action of . partition, where the widow objects to the sale.</p>

<p>Appeal by the defendant, The City of Elmira, from a judgment of the County Court of Chemung county, entered in the office of the clerk of said county on the 9th day of August, 1911, pursuant to an order of said court entered on the same day, affirming a judgment of the City Court of the city of Elmira in' favor of the plaintiff.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk of the county of Broome on the 1st day of April, 1911, allowing the defendant’s demurrer to an indictment.

<p>Appeal by Vena M. Hinman from a decree of the Surrogate’s Court of the county of Broome, entered in said Surrogate’s Court on the 12th day of October, 1910, vacating an order ajipointing her administratrix of the estate of Charles N. Hinman, deceased, with notice of an intention to bring up for review certain intermediate orders.</p>

Appeal by the defendant, Caroline Harris, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of June, 1911, affirming a judgment of the City-Court of the city of Albany in favor of the^ plaintiff entered in the office of. the clerk of said City Court on the 16th day of December, 1910. , f • ' The action was brought to recover a piano sold by the plañir tiff to Mrs. Mann.

Appeal by the plaintiff, Mary Greener, as administratrix, etc., from a judgment of the Supreme Court in favbr of the defendant, entered in the office of the clerk of the county of Schenectady on the 19th day of May, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Schenectady Trial Term.

Appeal by the defendant, Theodore H. Waterman, from so much of an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Albany on the.5th day of July, 1911, resettling a former order entered in said clerk’s office on the 23d day of June, 1911, as allows plaintiff $500 counsel fees in an action for separation.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Saratoga county, rendered on the 26th day of June, 1911, sustaining the defendants’ demurrers to the indictment and directing that the charge be resubmitted to the grand jury.

Appeal by the plaintiff, Eugene Clinton, as recéiver, etc., from an order of the Supreme Court, made at the Oswego Special Term and entered in the office of the clerk of the county of Madison on the ,21st day of August, 1911, vacating and setting aside a judgment for $324.77 in favor of the plaintiff, entered in said clerk’s office on the 2d day of December, 1910, and directing that the issues be brought to trial and tried in the manner prescribed for the trials of actions…

Appeal by the plaintiff, the Graver Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 23d day of March, 1911, upon the verdict'of a jury, and also from an order entered in said clerk’s office on the 28th day of March, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

Appead by the plaintiff, Louis D. Henn, from a judgment of the County Court of Otsego county in favor of the defendant, entered in 'the bffice of the clerk of said county on the 18th day of May, 1911, reversing a judgment of a justice of the peace of the town of Plainfield in favor of the plaintiff.

Appeal by the defendant, Peter L. Hawley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of September, 1910, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 25th day of October, 1910., denying the said defendant’s motion for a new trial made upon the minutes.

. Appeal by the plaintiff, Howard Hendrickson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany-on the 9th day of January, 1911, upon the decision of the court rendered after a trial at the Albany Trial Term, both parties, having moved for the direction of a verdict at the close of the case.

<p>Will—revocation — obliteration of clause — admitting will to probate as it originally stood.</p> <p>A, testator cannot revoke a bequest by obliterating the clause whereby it is made.</p> <p>The revocation of a will depends on the testatrix’s intention, and where, without intending .'to revoke the whole will but merely wishing to destroy a single bequest, she obliterates the clause making that bequest, the original wall may be admitted to probate in the form and condition it which it was when executed if that can be ascertained.</p> <p>Evidence examined, and held, that a testatrix by tearing off one clause of a will and her signature at the end and striking out the words “ In witness whereof,” etc., did not intend to revoke the entire instrument. Houghton, J., dissented.</p>

Appeal by the defendant, the Central- New England 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 Ulster on the 15th day of December, 1910, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 28th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes. * _

Appeal by the plaintiff, The People of the State of Hew York, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schenectady on the 28th day of July, 1911, dismissing the complaint upon the merits, pursuant to an interlocutory judgment entered nqsaid clerk’s office on the 21 th day of May, 1911, upon the decision of the court rendered- after a trial at the Schenectady Trial and Special Term sustaining…

Appeal by the defendants, Nathan Abramson 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 Delaware on the 25th day of February, 1911, upon the verdict of a jury rendered by direction of' the court, and also from an order .entered.insaid clerk’s office on the 21st day of February, 1911, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by John R. De Vany, as executor, etc., from so much of a decree of the Surrogate’s Court of the county of Ulster, entered in said Surrogate’s Court on the 14th day of November, 1910, as surcharges the account of the executor .with the sum of $381.

Reargument of an appeal by the defendants, J. Carl Schmuck and others, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 14th day of January, 1910, confirming the report of commissioners of appraisal herein, with notice of an intention to bring up for review an interlocutory judgment of the Supreme Court, entered in the said clerk’s office on the 8th day of February, 1908, appointing the…

Appeal by the defendant, Peter Ciancimino, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of 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 12th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, James A.- Healy, as substituted trustee, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of February, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

<p>Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of . the clerk of the county of Westchester on the 8th day of March, 1911, upon the verdict of a jury for $40,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Samuel Adler, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, in favor of the plaintiff, rendered on the 17th day of February, 1911.

<p>Appeal by the defendant, - Leonard Rowley, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 26th day of May, 1911.</p>

<p>Appeal by the plaintiff, the Acorn .Brass Manufacturing Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, rendered on the 19th day of April, 1911, dismissing the complaint.</p>

<p>Municipal corporations — contract for improvement in second class city — sufficiency of specifications—refusal of municipal authorities to execute contract — rights of lowest bidder — mandamus.</p> <p>There is no failure to comply with the requirement of section 120 of the Second Class Cities’ Law providing that, where a municipal contract exceeding $250 in cost is let, the specifications shall “set forth with sufficient detail to inform all persons proposing to bid therefor of the nature of the work to be done and of the materials to be supplied,” merely because the specifications for a hospital building contained a provision that if rock were' encountered in excavating the contractor must state in his bid the extra cost per cubic yard of removing the same, where the relative cost of removing the rock was insignificant.</p> <p>One who bid for the entire work, asking no' extra compensation for the removal of rock, is entitled to the contract as against one whose bid for the structure, although twelve dollars less, was actually the larger bid by reason of the fact that he claimed extra compensation for excavating rock.</p> <p>Where the lowest bidder on a municipal contract has no remedy at law for the refusal of the municipal authorities to, execute a contract which they have drawn up awarding the work to him, he is entitled to a writ of . mandamus compelling them to execute it.</p>

Appeal by the defendants, Nathan Schweitzer 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 10th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes. •

Motions in both cases by the respective plaintiffs, Lucinda Burton and Cora B. Heeren, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the denial of plaintiffs’ motions to go to the jury upon all the issues in the actions on a trial in March, 1911.

Appeal by the defendant, the Queens Land and Title 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 8th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Decedent’s estate—transfer of savings bank deposit — failure to show undue influence — consideration for transfer—burden of proof.</p> <p>Action by an administrator to recover the balance of a bank deposit which the intestate during her lifetime transferred to the defendant upon the ground that the transfer was procured by undue influence. The intestate, having left her husband, was refused admission to the household of certain relatives, and went to live with the defendant, her niece, and continued to do so until taken to the hospital, where she subsequently died. Before going to the hospital she went to the bank, where a deposit stood in her name, and transferred it to the defendant, who paid her hospital bill, etc. The intestate though old was of sound mind. Evidence examined, and held, insufficient to establish undue influence exercised by the deiendant.</p> <p>The plaintiff in such action having alleged that the transfer was without consideration was under the burden of proving that fact. The defendant was not bound to show a consideration in the absence of evidence that the parties did not deal upon equal conditions.</p>

Appeal in the first action by the defendant, The Prudential Insurance' Company Of America, from a judgment of the .City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 7th day of March, 1911, upon the verdict of a jury,, and also from an Order entered. in said clerk’s office on the 15th day of March; 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the City Court'’ of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of April, 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 same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Irving Dembitz, 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 18th day of August, 1911, granting the defendant’s motion for a change of venue.

Appeal by the plaintiff, Irving Dembitz, from an order of the Supreme'Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 19th day of September, 1911, denying the plaintiff’s motion for an extension of the time within which to stipulate for the reduction of a verdict.

Reargument of an. appeal by Edward M. Grout 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 September, 1911, denying the appel- ■ lant’s motion to vacate a warrant theretofore issued to the sheriff of Kings county requiring him to produce the said appellant before the respondent at a hearing in the above-entitled matter-.

■ Appeal by the plaintiff, The Town of Hempstead, from a judgment of the Supreme Court in favor of the defendants, entered, in the office of the clerk of the county of Nassau on the 29th day of December, 1910, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Mary. Oroghan, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 6th day of April, 1910, upon the verdict of á jury, and also from an order entered in said clerk’s office on the 11th day of May, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 23d day of February, 1911, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the llth day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Martin Benz, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the ¿1st day of August, 1911, granting the defendant’s motion for a bill of particulars.

Appeal by the. relator, Anthony Fisher, 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 14th day of August, 1911, denying the relator’s application for a peremptory writ of mandamus to compel-the execution of a contract.

<p>Motor vehicles—negligence — injury to bicycle rider by automobile — contributory negligence.</p> <p>In an action to recover damages for personal injuries it appeared that the plaintiff rode upon a bicycle down a steep farm driveway upon a State highway which he intended to cross, and was there struck by the defendant’s automobile, which was driven at a negligent rate of-, speed. Near the entrance to the highway the view from the driveway was obscured, but at a point on the driveway about 100 feet from the road there was á view of the highway for 308 feet. The plaintiff testified that he looked ' when at this point and did not see the automobile. He had two milk pails -suspended on the handle of his bicycle, and knew that the road was much used by automobiles. Several of the plaintiff’s witnesses testified that the automobile sounded two warning signals, but the plaintiff denied having heard them. '</p> <p>Held, that a finding that plaintiff was free from contributory negligence . was against the weight of evidence.</p>

<p>Appeal by the plaintiff, Helen Mahoney, from a judgment of the Supreme 'Court in favor of the defendant, The Long Island Railroad Company, entered in the office of the clerk of the county of Kings on the 12th day of May,' 1911, upon the dismissal of the complaint as to said defendant by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term.</p>

<p>Municipal ' corporation — negligence — injury to pedestrian — hole in pavement.</p> <p>The negligence of a city in permitting a hole four inches deep with abrupt edges and as large in diameter as the head of a barrel to exist in an asphalt pavement, whereby an elderly woman, not familiar with the place, was injured by stepping into the hole while attempting to cross the street, is for the jury.</p> <p>Carr, J., dissented.</p>

Appeal by the plaintiff, Friedrich Magdeburg, from a judgment of the Supreme Court in favor of the defendant Anna Gramcko, as executrix, etc., entered in the office of the. clerk of the county of Kings on the 12th day of April, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the defendants, the Wakefield Park Eealty Company and others, from so much of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 6th day of October, 1911, as denies the application of the defendants for the allowance of a taxable bill of costs for each parcel separately tried.

Appeal by the defendant, Post & McCord, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of December, 1910, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 24th day of December, 1910, denying the defendant’s motion for anew trial made upon the minutes.' ■

Appeal by the plaintiff, Patrick J. Shea, from a judgment of the Supreme Court in favor of the defendant, The New York, New Haven and Hartford Bailroad Company, entered in the office of the clerk of the county of Westchester on the 16th day of June, 1909, upon the dismissal of the complaint as to said defendant by direction of the court at the close of plaintiff’s case on a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 21st…

Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th 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 4th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, ■ The People of the State of New York, from a judgment of the Supreme Court in favor of ■ the defendant, entered in the office of the clerk of the county of Westchester on the 15th day of September, 1910, upon the report of a referee appointed to hear, try and determine the issues, dismissing the complaint upon the merits.

Appeal by the plaintiff, August Bohnhoff, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of June, 1911.

Appeal by the defendant, William H. Sussdorff, from an order of the Supreme -Court, madej at the Kings County Trial Term and, entered in the office of the clerk of the county of Kings on the 13th day of March, 19.11. . '

<p>Appeal — failure to except — master and servant — negligence — injury by falling rock — safe place to work -r- knowledge of danger — erroneous charge.</p> <p>The Appellate Division may, notwithstanding the absence of an exception, review, on an appeal from a judgment entered on a verdict, and from-an order denying a new trial on the minutes, a ruling of the trial judge submitting a particular question to the jury. . .</p> <p>When excavating a railroad cut involves, the blasting of rock and removal of the debris by a steam shovel moved forward on tracks during the progress of the work, and a laborer employed in the cut to clean the drill holes and to'clean and relay the tracks is injured while taking out a drill from a piece of rock then in the bucket of the steam shovel, in consequence of being struck by a piece of rock which had partly wedged in the side of the cut and which fell down upon him, the question as to whether his master fmnisked a safe place in which to work is not involved as it was the doing of the work which made the place dangerous.</p> <p>It seems, that where in an action to recover for injuries so caused the plaintiff testifies that he knew he was going to a dangerous place when he went to remove the drill, it is error to charge that “ In determining the question of plaintiff’s contributory negligence and also the question of plaintiff’s assumption of the risks that the plaintiff was entitled to rely upon the assurance of safety given by defendant, * * * and * * * upon the superior knowledge and experience of the defendant in such work.”</p> <p>Woodward, J., dissented.</p>

Appeal by the plaintiff, the Board of Education of Union Free School District No. 1, Town-of Ossining, 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, 1911, dismissing the complaint.

<p>Appeal by the defendant, The Yonkers Electric Light and Power Company, 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 21st day of January, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes,</p>

Appeal by the defendants, John Arbuckle and another, copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of March, 1911, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 4th day of April, 1911, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Staten Island Shipbuilding 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 :12th day- of January, 1911, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 19th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Municipal corporation—negligence — depression in city street — contributory negligence of one driving wagon.</p> <p>A depression five feet long, three .feet wide and five inches deep, in the asphalt pavement of a city street, is of such a character that ordinarily careful and prudent men might differ as to the danger thereof, and hence the question whether the city is negligent in permitting the depression to exist is one of fact.</p> <p>In an action brought against the city to recover* damages for personal injuries sustained by the plaintiff, by reason of the depression in the street above described, it appeared]that the plaintiff was driving a platform truck loaded with timber, piled as high as the rungs thereof, and securely bound; that the plaintiff was sitting on top of the load; tliat the horses were walking; that the accident occurred as the plaintiff was turning out of a street car track, and that the plaintiff did not see the depression, and was not aware of its existence.</p> <p>Held, that the plaintiff was not guilty of contributory negligence as matter of law.</p>

Appeal by the. plaintiff, Jennie A. Griffith, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in- the office of the clerk of the county of Queens on the 29th day of November, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Queens County Trial Term.

Appeal by the plaintiff, Patrick Gilmartin,- 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 26th day of August, 1911, changing the place of trial from the county of Westchester to the county of New York.

Appeal by the defendant, Clayton S. Goss, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of April, 1911, upon the report of a referee, and also from an order entered in said clerk’s office on the 20th day of April, 1911, granting the plaintiff’s motion for an extra allowance.

Appeal by the petitioner, Richard Barry, from an order of , the Supreme Court, made at the.Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of August, 1911. ' •

<p>Pledge — assignment of mortgage as security for firm debt — when no guaranty of payment — obligation of creditor to realize on prior security — cancellation of assignment denied.</p> <p>Where on the dissolution of a partnership and an assumption of the firm debts by one of the partners, the wife of the other partner assigned mortgages to a creditor of the firm as collateral security for the payment of the firm debts, to be used, however, only after other collateral deposited by the firm itself with the creditor and the firm assets had been exhausted, the mortgages to be only security to the extent of $10,000, there was not a guaranty of collection of the firm debt, but merely additional security for the pre-existing debt already overdue.</p> <p>Under tho circumstances the only obligation of the creditor was to use due and reasonable diligence to realize on the prior collateral.</p> <p>Hence, where the pledgor lost nothing by the negligence of the creditor in failing to use due diligence in realizing on the prior collateral by reason of the fact that, if it had done so, there would still remain due more than the amount for which the additional security was held, the pledgor is not entitled to a judgment canceling the assignment of the mortgages.</p>

Appeal by the defendant, The Pictorial Review Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of August, 1911, granting an injunction pendente lite, and also from an order entered in said clerk’s office on the 18th day of September, 1911, denying the said defendant’s motion to resettle the prior order.

Appeal by the plaintiff, the Admiral Realty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of September, 1911.

Appeal by the defendants, Hudson Companies and another, from a judgment of the Supreme Court in favor of the plaintiff and against said defendants, entered in the office of the clerk of the county of New York on the 1st day of November, 1910, upon the verdict of a jury for $4,349.97, and dismissing the complaint as to the defendant New York Steam Company, and also from an order' entered in said clerk’s office on the 11th day of November, 1910, as amended by an order entered…

<p>Appeal by the plaintiff, Hyman Schechter, an infant, etc., 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, granting the defendant’s motion for a new trial and vacating and setting aside the verdict of a jury in favor of the plaintiff for $1,250 in an action for negligence.</p>

Appeal by the plaintiff, the Federal Sanitary Clearing and Refining 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 14th day of April, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by Henry E. 0. Watson and others, as executors, etc., and others, from parts of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 13th day of April, 1908, with notice of an intention by said executors to bring up for review an allowance of $920, referee’s fees. On the 15th of July, 1905, William H. Tailer died, leaving him surviving Maria 0. Tailer, his widow, and no children or issue of children.

Appeal by the plaintiffs, Marie Wade Orr, as executrix, etc., and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 14th day of December, 1910, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, the Independent American Ice Cream Company, from an order of the Appellate Term of the Supreme Court reversing an order of the Municipal Court of the city of New York which set aside the verdict of a jury in favor of the plaintiff for $300 and granted a new trial. The order of the Appellate Term reinstated the verdict and directed the entry of judgment thereon.

<p>Pleading—libel—demurrer to defenses — partial and complete defenses.</p> <p>No demurrer lies to a “separate and distinct defense, both whole and partial.” The plaintiff’s remedy is a motion to separate the defenses.</p> <p>A demurrer to a defense upon the ground that the facts pleaded do not constitute either a wholemr partial defense cannot be sustained where the facts do show a partial defense.</p> <p>Where the facts alleged in a separate defense to an action for libel do not constitute a complete defense but do constitute a partial defense, a demurrer upon the ground that the defense is insufficient in law upon its face cannot be sustained.</p>

Appeal by the defendants, George D. Provost 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 22d day of June, 1911, granting the plaintiff’s motion for the appointment of a receiver pendente lite.

<p>Civil rights — unauthorized use of portrait — action for damages — separate action for libel does not lie — damages—punitive damages — verdict not excessive.</p> <p>A plaintiff, who has been injured by the unauthorized use of his name and a portrait stated to be his by an exhibitor of moving pictures contrary to section 51 of the Civil Rights Law, and who alleges that he has been held up to public ridicule, must recover all his damages in that action. He cannot maintain a separate action for libel based on the same facts. Exemplary damages may be recovered in such action, and are within the discretion of the jury.</p> <p>Where the plaintiff in such action, a wireless telegrapher, had performed acts of great heroism by remaining at his post during a collision between steamships at sea, in which many lives were imperilled, and had refused to allow himself to be publicly exploited as a hero, but the defendant employed an actor to impersonate the plaintiff in scenes representing the disaster, and exhibited photographs so obtained as moving pictures, showing the person representing the plaintiff in ludicrous attitudes, etc., a verdict of $12,000 is not excessive.</p> <p>McLaughlin, J., dissented.</p>

<p>Appeal by the defendants, the Hudson Valley Railway Company and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the 'clerk of the county of Hew York on the 8th day of September, 1911, denying a motion duly made by the defendant Hudson Valley Railway Company, in which the defendant the Village of Saratoga Springs was permitted to intervene without affidavits to change the place of trial from the county of Hew York to the county of Saratoga.</p>

Appeal by the defendant, The German Union Fire Insurance Company of Baltimore, 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 rendered by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, Mary Emma McCarty, from a judgment of the Supreme Cburt in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of January, 1910, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendant, Wilbur A. Marshall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes.

' Appeal by the plaintiffs, Seelye Benedict and others, 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 8th day of March, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of March, 1911, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Maryland Casualty 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 18th day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Baron Raoul de Graffenried, 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 September, 1911, overruling the defendant’s demurrer to the second cause of action alleged in the complaint.</p>

<p>Appeal by the plaintiff, Albert W. Ransom, 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 December, 1910, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendant, the Snare & Triest Company, frdpa 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 26th 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 9th day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes. .

<p>Appeal by the defendant, Thomas G. Condon, from a judgment of the Supreme Court, .entered in the office of the clerk of the county of New York on.the 9th day of March, 19Í1, pursuant to an order made at the New York Special Term and entered, in said clerk’s office on the 8th day of March, 1911, granting the plaintiff’s motion for judgment on the pleadings, and also from the said order upon which the judgment was entered.</p>

<p>Corporation — foreign corporation — refusal to allow inspection of stock book — penalty — constitutional law — interstate commerce.</p> <p>Section 33 of the Stock Corporation Law, requiring foreign stock corporations, other than moneyed and railroad corporations, having an office for the transaction of .business in this State, to keep a stock book containing the names of stockholders and imposing a penalty for- a refusal to allow an inspection of said book by stockholders and. judgment creditors, has no relation to the provisions of the statutes requiring foreign corporations doing business in this State to obtain a certificate permitting them to do so and to pay a tax,</p> <p>Hence, a foreign corporation having an office for the transaction’ of business in this State which refuses to allow an inspection of said stock book by a stockholder is liable, for the penalty although it.has not been licensed to do business here. ■ .</p> <p>,'Said section 38 of the Stock Corporation Law is not. unconstitutional on ' the theory that it is in restraint of interstate commerce.</p> <p>Miller and Scott, JJ., dissented, with opinion.</p>

Appeal by the defendant, Thomas D. Richardson, Jr., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 4th day .of May, 1911,. reversing a judgment of the Municipal Court of the city of Hew York in favor of the defendant and granting a new trial.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 12th day of June, 1911, and also from an order denying a motion for a new trial.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 9th day of May, 1911.

<p>' Appeal by the plaintiffs from a judgment of. the Municipal Court of the city of New York, borough of Brooklyn, in their favor, rendered on the 2d day of May, 1911..</p>

Appeal by the defendant from a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Kings on the 9th day of April, 1910, and from an order entered in said office on the 31st day of March, 1910, denying a motion for a new trial.

<p>Railroad — condemnation of land — change of route — necessity.</p>

Appeal by the defendants, Frank H. Cowperthwait 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 Kings on the 20th day of July, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term. Judgment affirmed, with costs, on the authority of Hickok s. Cowperthwait (ante, p. 121), decided herewith.

Appeal by defendant from an order of the Franklin County Court bearing date the 13th day of June, 1911, denying defendant’s application for an order remitting a portion of defendant’s sentence, also from a judgment of conviction of the defendant for keeping a disorderly house.

Appeal by the defendant from an order of the Supreme Court, entered in the clerk’s office of the county of Ulster on the 23d day of February, 1911, granting plaintiff a new trial upon newly-discovered evidence.

Appeals from judgment of the County Court of the county of Madison, rendered on the 5th day of December, 1910, convicting the defendant of grand larceny in the second degree. Judgment of conviction affirmed.

The relators appeal from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster June 26, 1911, denying an application for an absolute writ of prohibition and quashing and dismissing an alternative writ.

<p>Motion for rearg.ument.</p>

Appeal by the defendant from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 18th day of September, 1911, and entered in the office of the clerk of the county of Westchester on the 37th day of September, 1911.

Appeal by the plaintiff from a judgment of the County Court of Suffolk county, entered in the office of the clerk of said county on the 13th day of September, 1910, reversing a judgment of the Justice’s Court of the town of Brookhaven.

<p>Practice — contract — affirmative defense — reply.</p>

Appeals by the plaintiffs from judgments of the Supreme Court, entered in the office of the clerk of the county of Kings on the 8th day of June, 1911, and from orders entered in said office on the 15th day of June, 1911, denying them motions for a new trial on the minutes.