Volume 148 — New York Appellate Division Reports

<p>Appeal by the defendant, Louis Silverman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of January, 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 9th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

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

Appeal by the plaintiff, Hyman Kaplan, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of December, 1910, reversing a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 28th day of March, 1910, upon the verdict of a jury, and also reversing an order of said City Court denying the defendant’s motion for a new…

Appeal by the plaintiff, Belle Wooding, 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 25th day of February, 1911, denying the plaintiff’s motion to set aside the verdict of a jury in favor of the defendant Townsend Scudder and for a new trial as against said defendant, and also from an order entered in said clerk’s ■ office on the 18th day of March, 1911, granting the motion of the…

Appeal by Ernst J. Leclerle, as commissioner of health, etc., 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 6th day of October, 1911.

Appeal by the plaintiff, Morris Littmann, 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 24th day of January, 1911, upon the decision of the court, rendered after a trial of the New York Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendant, Richard -Fitzpatrick, 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 IIth day of February, 1911, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 7th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Jacob De Jong, from an interlocutory 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 June, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrers to the separate defense set forth in the several amended answers of the defendants.

Appeal by the defendant, Samuel Ullmann, doing business under the name and style of Joseph Ullmann, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 23d day of March, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1911, denying the defendant’s motion for a new trial made upon the ■ minutes.

Appeal by the defendant, Edward Rubin, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the bth day of October, Í911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.

Appeal by the defendant, Bernard McOonville, 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 3d day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Mortgage—foreclosure of second mortgage —receiver of rents — subsequent foreclosure of first mortgage — deficit — right of first mortgagee to intervene in action to foreclose second mortgage — right to rents collected by receiver.</p> <p>Where after a receiver of the rents and profits appointed in a suit to foreclose a second mortgage had collected considerable money, the holder of the first mortgage, without having the receivership extended, foreclosed his mortgage and sold the property for a sum insufficient to satisfy the amount due thereon, he should not be allowed to intervene in the suit to foreclose the second mortgage. ,</p> <p>The receivership having been for the benefit of the holder of the second mortgage and never having been extended, whatever money was collected belonged to the holder of that mortgage who acquired a specific lien thereon superior to any claim either legal or equitable of the holder of the first mortgage.</p>

Appeal by John 0. Tomlinson and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of October, 1911, appointing a referee to take proof and report.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of March, 1911, upon the verdict of a jury for $1,250, and also from an. order entered in said clerk’s office on the 31st day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>• Husband and wife — failure to pay alimony — acts not impairing rights of wife — contempt.</p> <p>Although a husband directed by a decree of divorce to pay weekly alimony to his wife for her support and the support and education of their child was guilty of a technical violation of the decree by paying a portion of the sum to his son in order to enable him to continue his education after the wife had refused to permit him to do so and by paying only the balance to the wife, yet his act was not such as to defeat, impair, impede or prejudice the rights of the wife and he should not be punished for contempt.</p> <p>Dowlistg, J., dissented.</p>

Appeal by the defendant, Alice Griffith Rycroft, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of 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 1st day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Vacuum Dyeing Machine 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 13th day of October, 1911, denying the defendant’s motion to vacate an attachment.

<p>. Appeal by the defendant, the People’s Surety Company of New York, from an order pf the Appellate Term of the Supreme' Court, entered in the office of the clerk of the county of New York on the 5th day of January, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered on the 5th day of May, 1910, upon the verdict of a jury rendered by direction of the court, and also from the judgment of affirmance entered thereon.</p>

Appeal by Emma E. Lehrbach, as administratrix, etc., from a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 17th day of June, 1910, finally settling the account of the appellant as administratrix and directing distribution.

Appeal by the defendant, The James E. Scholes 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 19th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, May 0. Dodge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the county of New York on the 20th day of April, 1911, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 19th day of April,. 1911, denying the defendant’s motion for a new trial made upon the minutes. •

Appeal by the defendant, The New York Press Company, Limited, 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 6th day of March, 1911, upon the verdict of a jury for $10,000, and also_ from an order entered in said clerk’s office on the 30th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Henry Audley, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 10th day of Hay, 1911.

Appeal by the defendants, the Realty Securities Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1911, overruling the appellants’ demurrers to the complaint and granting the plaintiffs’ motion for judgment on the pleadings.

<p>Appeal by the plaintiff, Martha King, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of May, 1911, upon the decision of the court, rendered after a trial at the New York Trial Term, dismissing the complaint upon the merits, a jury having been waived.</p>

<p>Motion by the plaintiff, Nicola Dippolito, as administrator, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court on a trial at the New York Trial Term in April, 1911.</p>

Motion by the plaintiff, Donato Cassano, for a new trial-Upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court on a trial at the New York Trial Term in April, 1911.

<p>Civil service — increase of salary — change of grade ■—promotion.</p> <p>Where the board of water supply of the city of New York increased the salary of an engineer from $2,000 to $2,400 per annum, stating in its notice that the engineer was promoted from one grade to another, and the increase actually brought him into a higher grade under the classification of the municipal civil service commission, there was a “promotion” within the meaning of the Civil Service Law, and the engineer is not entitled to a writ of mandamus commanding the civil service commissioners to certify him on the payrolls at the increased salary.</p>

<p>Beal property — action to register title — parties — right of abutting owner to appear — statute construed.</p> <p>In an action to register title to land brought under article 12 of the Real Property Law, an abutting owner has an absolute right to appear and answer the complaint.</p> <p>An abutting owner who has filed a cautionary notice is a necessary party defendant, and must be brought in by the plaintiff even though he claims no right, interest in or lien upon the land sought to be registered. But, in the absence of such cautionary notice, he is not a necessary party.</p> <p>It seems, that where a person who has a right to appear in such action has not been named as a defendant by the plaintiff-, the orderly practice is for Mm to enter Ms appearance, demand a copy of the complaint, and to answer it within the time allowed.</p> <p>The action is in rem, and the judgment entered therein is conclusive upon all the world. As the statute gives to every person whose Mterests may be affected by the judgment the right to appear, such person need not apply to the court for leave to appear, nor can that right be determmed by the plamtiff.</p>

<p>Civil service — removal of one holding office in exempt class — removal for political reasons — mandamus to compel reinstatement — Civil Service Law construed.</p> <p>Section 25 of the Civil Service Law, providing that no recommendation or question under the authority of the statute shall relate to the political opinions or affiliation^ of any person and that no appointment or selection to or removal from an office shall be in any manner affected or influenced by such opinions or affiliations, does not apply to one holding a position in the exempt class. Hence, where such person has been removed, he is not entitled to mandamus to compel his reinstatement upon the ground that he was removed for political reasons.</p> <p>Where a person holding a position in the exempt class is dismissed from office, the statute does not entitle the jury to determine on the trial of the issues raised by the return to an alternative writ of mandamus whether he was removed because of political affiliations.</p> <p>The court in construing a statute may change its grammatical construction when the meaning is plain and it is necessary to do so in order to harmonize it with other provisions.</p> <p>Civil Service Law discussed and construed, per Miller, J.</p>

Appeal by the relator, William H. Schott, 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 20th day of July, 1911, denying the relator’s motion to amend a petition for a peremptory writ of mandamus- and for an alternative writ upon said petition as amended.

Appeal by defendant, Louis Pelletier, 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 5th day of October, 1911, denying the defendant’s motion for leave to serve an amended answer.

Appeal by the plaintiff, the Topia Mining 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 2d day of November, 1911.

<p>Partnership — power of surviving partner to release debtor—scope of release — when other debtors not discharged.</p> <p>A sole surviving partner has legal title to the firm assets and can deal with them as his own. Hence, where in his individual name he releases all claims against one indebted to the firm, it is a bar to a suit for an accounting by that debtor subsequently brought by the surviving partner's representatives.</p> <p>But, although the surviving partner released the debtor “ from all claims on account of moneys received by ” it “ or others ” from a specified fund only the particular debtor was released and other parties holding other portions of the fund may be compelled to account therefor.</p>

Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendant Thomas Lloyd, entered in the office of the clerk of the county of New York on the 20th day of February, 1911, upon the dismissal of the complaint as to said defendant at the close of plaintiff’s case by direction of the court on a trial at the New York Trial 'Term.

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

Appeal by the defendant, the Childs 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 l-3th day of July, 1911. The defendant occupies a building which it operates as a restaurant. Plaintiff owns a hotel, part of' which is directly in the rear of defendant’s restaurant. Plaintiff’s building is ten stories high, while defendant’s restaurant is only three stories in height.

Appeal by the plaintiff, Carlotta Nillson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of November, 1911.

Appeal by Lewis M. Isaacs 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 16th day of October, 1911.

Appeal by the defendant, The Number 1465 Broadway 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 20th day of June, 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 14th day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes,.

Appeal by the defendant, John Schnackenberg, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of March, 1911, upon the decision of the court rendered after a trial at the New York Trial Term before the court, a jury having been waived, in an action for ejectment.

<p>Appeal by the defendant, Filomena Lizzo, as administratrix with the will annexed, 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 19th day of May, 1911, denying the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff and for a new trial.</p>

Appeal by the defendant,. The Central Railroad Company of New Jersey, from, a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of.

<p>Appeal by the defendant, Central .Fish Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 9th day of January, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, The Board of Water Supply of the City of .New Tork and others, from an order of the -Supreme Court, made at the New Tork Special Term and entered in the office of the clerk of the county of New Tork on the 13th day of November., 1.911.

Appeal by the plaintiff, Florenz Ziegfeld, Jr., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1911, as resettled by an order entered in said clerk’s office on the 18th day of April, 1911.

Appeal by the defendants, Francis J. Nekarda and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 2c] day of July, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Alexander Machan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of October, 1911, denying the defendant’s motion for a change of venue.

Appeal by the plaintiff, the Williams Engineering and Contracting Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1911, as releases the city from a stipulation and sets aside an order of reference. .

Appeal by the defendant, Eli Cohen, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 2d day of September, 1909, convicting him of the crime of grand larceny in the first degree, and also from orders denying motions for a new trial and in arrest of judgment.

Appeal by the defendants, Sophia B. 0. Furniss and another,, individually and as trustees, etc., and Clementina Fumiss, from an order of the Supreme Court, made at the New York Special Term, pursuant to section 976 of the Code of Civil Procedure, and entered in the office of the clerk of the county of New York on the 8th day of June, 1911, overruling the said defendants’ demurrers to the • amended complaint and the supplemental • complaint.

<p>Appeal by the defendants, Sophia It. C. Furniss and another, individually and as trustees, etc., and Clementina Furniss, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of August,-1911, upon the decision of the court, rendered after a trial at the New York Special Term, requiring an accounting and appointing a referee to take and state the account of the trustees.</p>

<p>• Appeal by the plaintiff, Sigmund Isaacson, from a judgment of the Supreme Court in favor of the defendant Lizzie Etkin, entered in the office of the clerk of the county of New York on the 7th day of July, 1911, upon the dismissal of the complaint as to the respondent by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.</p>

Appeal by the defendant, Theodore E. Auerbach, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of April, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the amended complaint.

<p>Appeal by the relator, William J. Daly, 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 14th day of February, 1911, denying the relator’s motion for a peremptory writ of mandamus.</p>

<p>Will—construction—trust—rights of beneficiary’s wife-—husband and wife — right to support — separation.</p> <p>Where a testator left his residuary estate in trust and directed the trustees to pay one-half of the income to testator’s son during his life “ for the benefit of himself and family,” the son’s wife, who after the testator’s death left her husband, cannot maintain an action against the trustees for a construction of the will and to compel them to pay her a part of her husband’s share of the income.</p> <p>Although testator by the will expressed his wish that the son should use the income for his family’s benefit as well as his own, that did not create a trust for the benefit of the son’s wife which she could enforce against the trustees of the estate and against her husband.</p> <p>Whatever rights the wife has to support from her husband must be determined in an appropriate action for separation, where the requisite facts to justify the allowance of alimony can be established.</p>

<p>Appeal by the defendant, George Gordon Battle, from an interlocutory judgment of the Súpreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of October, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the 9th and 11th paragraphs of the said defendant’s answer.</p>

<p>Appeal by the defendant, The Title Guarantee and Trust Company, individually and as trustee, from parts of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 8th day of April, 1910, upon the report of a referee.</p>

<p>Appeal by the plaintiff, Maurice S. Konheim, 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 26th day of October, 1911, granting the defendants’ motion to refer the issues in the action to a referee to hear, try and determine.</p>

<p>Appeal by the plaintiff, Archibald L. Levy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of October, 1911, granting the defendant’s motion to strike out certain allegations from the amended complaint as irrelevant and redundant.</p>

Appeal by the plaintiff, Cornelius J. Sullivan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of August, 1911, denying the plaintiff’s motion for an inspection and discovery of the defendant’s books and documents.

Appeal by the plaintiff, Cornelius J. Sullivan, 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 13th day of November, 1911, granting the defendant’s motion to vacate an order for the examination of the defendant before trial.

Appeal by the defendant, Isa Willard Hein, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of August, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, granting to the plaintiff a divorce and also awarding her the custody of her child.

Appeal by the plaintiff, Edna Valentine Hein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of August, 1911, resettling the record on appeal.

Motion by the defendant, Justus Gr. Dettmer, 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 New York Trial Term in April, 1911.

Appeal by the defendant^ Morton H. C. Foster, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New. York on the 23d day of May, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the defendant and granting a new trial in an action to recover a penalty for a violation of section 97 of the Building Code.

Appeal by The German Society of the City of New York, as executor, etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 23d day of October, 1911, directing the appellant to file an account of its proceedings as executor.

Appeal by the plaintiff, Laura Daintrey, 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 New York on the 6th 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 New York Trial Term.

Appeal by the defendant, Berthold Levi, from an order of the Supreme Court, made at the New York Special Term and entered in the office óf the clerk of the county of New York on the 8th day of August, 1911, denying the defendant’s motion to vacate an order for his examination before trial.

Appeal by the defendant, Chase, Talbot and 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 March, 1910.

<p>Attorney at law disciplined.</p> <p>Attorney at law suspended from practice for one year and until restored by further order of the court because of his failure to prosecute an appeal, having accepted a retainer to do so, and for having falsely testified in the proceeding to disbar him.</p>

<p>Application by the Association of the Bar of the City of New York to discipline the respondent, an attorney of this court.</p>

<p>Attorney at law disbarred.</p> <p>Attorney at law disbarred for converting to his personal use money advanced by his client to be applied upon a mortgage and for giving false testimony in the proceeding to disbar him.</p>

. Appeal by the plaintiffs, William A. Haase 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 2d day of May, 1911, granting the defendant’s motion to vacate a judgment entered on default.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of November, 1910, ¡upon the verdict of a jury, and also from an order entered ini said clerk’s office on the same day,- as resettled by an order entered therein on the-19th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, James B. Ford and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York, on the 21st day of June* 1911, upon the report of a referee.

Appeal by the defendant, Arnold 0. Soheuren, from a judgment of the Court óf General Sessions of the Peace in and for the county of-New York rendered against the defendant on the 25th day of February, 1910, convicting him of the crime of attempted extortion, and also from an order denying the defendant’s motion for a new trial and in arrest of judgment.

Appeal by Max Dorf from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of November, 1911, fixing and determining the lien of the respondent on the moneys awarded the appellant for property known as parcel No. 12 in the above-entitled proceeding.

<p>Appeal by the plaintiff, Oscar H. Sugarman, from part of a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Hew York on the 20th day of March, 1911, Upon the dismissal of the complaint by direction of the court as to the defendant Dennett’s Surpassing Coffee Company at the close of the plaintiff’s case on a trial at the Hew York Trial Term. The appeal is from the judgment as amended by an order entered in said clerk’s office nunc pro tunc as of the date of the entry of said judgment.</p>

<p>. Mortgage — refusal of trustee to cancel trust mortgage — party — action by persons not party to mortgage or beneficiaries.</p> <p>One having merely contracted with persons who claim to be owners of the franchises and property of a railroad company, to create a syndicate to reorganize it, cannot maintain an action against a trustee under a mortgage made by the railroad company to secure its bonds to recover damages alleged to have been caused by the refusal of the trustee to cancel the mortgage and to deliver the bonds secured by it, as directed by a resolution of the directors of the railroad. This, because the refusal to cancel the bonds, if wrongful, was either a breach of contract or a breach of duty as trustee, and for these breaches only the other party to the trust deed or the beneficiaries thereunder can bring action.</p>

Appeal by the plaintiffs, Frederick H. Spicer and another, as executors, etc., and by the defendants, Cora Stryker Connor and others, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Steuben on the 19th day of September, 1908, upon the decision of the court rendered after a trial at .the Steuben Trial Term, a jury having been waived.

Appeal by the defendant, the Lehigh Valley 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 Niagara on the 25th day of March, 1911, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the National League of Commission Merchants of the United States, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 29th day of May, 1911, upon the decision of the court, rendered after a trial at the Erie Trial Term before the court without a jury, dismissing the complaint upon the merits, and directing the restoration of the defendant to membership in the plaintiff…

<p>Appeal by the defendants, Huron Colby and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 12th day of September, 1910, upon the decision of the court rendered after a trial at the Erie Trial Term, a jury having been waived.</p>

<p>Appeal by the defendant, George H. Dauchy, from a judgment of the County Court of Monroe county, rendered against the defendant on the 18th day of June, 1909, convicting him of the crime of bigamy, and also from an order denying the defendant’s motion for a new trial.</p>

Appeal by the defendant, The Ferro-Concrete Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 25th day of March, 1911, upon the verdict of a jury for $12,000, and from said judgment as corrected and amended by an order entered in said clerk’s office on the 26th day of April, 1911, and also from an order entered on the 25th day of March, 1911, denying the defendant’s motion…

Appeal by the defendants, Ernest Hallock 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 Chautauqua on the 21st day of January, 1911, upon the decision of the court, rendered after a trial at the Niagara Special Term, construing certain provisions of the last will and testament of. David Wright, deceased.

<p>Appeal by Mary Winship and others from a report of the commissioners made in the above-entitled proceeding, and entered in the office of the clerk of the county of Erie on the 17th day of June, 1910, and also from an order made at the Erie Special Term and entered in said clerk’s office on the 3d day of November, 1910, confirming said report, the appeal taken by Edward P. Bowen and others being from the said order only.</p>

Certiorari issued out of the Supreme Court and attested on the 15th day of April, 1911, directed to the board of supervisors of Herkimer county, commanding said board to certify and return to the office of the clerk of the county of Herkimer all and singular its proceedings had relative to the account and claim of the relator.

<p>Railroad — negligence — operation of trains on city street — injury by horses frightened by steam from locomotive — erroneous nonsuit:</p> <p>Although a railroad company has a right to operate its trains upon a city street and to start and stop them at its station, its use of the street must be reasonable as other persons may lawfully travel upon it.</p> <p>Action against a railroad company to recover damages for personal injuries suffered by the plaintiff when a team Of horses owned by him ran away owing to the alleged negligence of the defendant in unnecessarily permitting large quantities of steam to issue from its locomotive when starting it at a station on a city street. Evidence examined and held, that a dismissal of the complaint by direction of the court was error.</p>

Appeal by the defendants, Jesse A. Sheldon and others, as assessors of the city of Clean, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Cattaraugus on the 30th day of January, 1911, correcting an assessment roll, and also from an order entered in said clerk’s office on the same day.

<p>Appeal by the defendant, the Northern Pacific Bailway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Clinton on the 15th day of April, 1910, upon the verdict of a jury for $9,500, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial, and. from a second order granting plaintiffs an extra allowance of costs.</p> <p>This case was transferred to the Pourth Department from the Third Department.</p>

<p>Eminent domain — confirmation of report óf commissioners — irregu larities not affecting merits — failure to take oath in form prescribed by statute.</p> <p>The report of commissioners 'in condemnation proceedings .must be confirmed unless it is shown that there has been misconduct or palpable mistake on them part, resulting in harm to an interested' party. Confirmation cannot be refused on purely technical objections'not going to the merits, or for omissions in no way harmful to a party. ;</p> <p>Thus, one to whom an award has been made for injuries caused by a change in the grade crossing of' a railroad cannot wait until the. report is rendered and then contest its confirmation upon the purely technical ground that taxes deducted from the award were not provento be a, lien against the property, or because one of the commissioners was not a freeholder as required by law, or because one of the commissioners ■at the time of his appointment was a party defendant to the proceeding and, therefore, ineligible, of because- the premises were not viewed by the commissioners as a whole.</p> <p>Nor is such award invalidated because the commissioners, in taking their oath, merely took that prescribed in the Constitution to discharge the duties of the office of commissioner in the above-entitled proceeding to the best of them ability, instead of swearing in addition, as required by the Grade Crossing Act, to ascertain and report the just compensation to be paid to owners and parties injured.</p> <p>Moreover, as said oath was spread upon the minutes of the commissioner^ and open to inspection by the parties, the objection cannot be taken for the first time when the report, is offered for confirmation.</p> <p>No injury resulted because of the failure of the commissioners to take the statutory oath, and at the most it was a mere irregularity, in no sense jurisdictional. •</p> <p>Robson, J., dissented.</p>

Appeal by the defendant, the New York State Railways, from a judgment of the Supreme Court in favor of the plaim tiff, entered in the office of the clerk of the county of Ontario ' on the 21st day of March, 1911, upon the verdict' of a jury for $900, and also from an order-entered in. said clerk’s office on the 30t'h day of March, 1911, denying* the defendant’s motion for judgment on the verdict and the special findings therein contained; also from a second order entered on…

Appeal by James 0. Sebring from an order of the Supremo Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Yates on the 26th day of June, 1911, adjudging the appellant guilty of contempt of court and imposing upon him a finé.

<p>Appeal by the defendant, The Village of Alfred, hi. T., from a judgment of the Supreme Court in favor' of the plaintiff, entered in the office of the clerk of the county of Allegany on the 19th 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 14th day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

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

Appeal by the defendant, Orrin A. Lumbert, from a judgment of the County Court of Onondaga county, rendered against the defendant on the 4th day of January, 1898, convicting him of the crime of grand larceny in the first degree, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of May, 1911, upon the decision of the court rendered after a trial at the Erie Special Term, and also from an order entered in said clerk’s office on the 4th day of May, 1911, granting the plaintiff an extra allowance.

Appeal by the plaintiff, the Lackawanna Steel Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 14th day of November, 1910, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 16th day of November, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas H. Pancoast, 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 24th day of April,' 1911, upon the verdict of a jury, rendered by direction of the court, awarding the defendant the amount of a counterclaim interposed by him.

Appeal by the plaintiffs, Cary H. Brown and another, from a judgment of the Supreme Court in favor Of the defendant, entered in the office of the clerk of the county of Tompkins on the 1st day of April, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiffs’ case on a trial at the Tompkins Trial Term, and also from an order entered in said clerk’s office on the same day denying the plaintiffs’ motion for a new trial made upon the…

Appeal by the defendant, the Glens Falls Gas and Electric Light Company, from' a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 25th day of May, 1911, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 9-th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Martha Strock, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 12th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of May, 1910, denying the plaintiff’s motion for a net/ trial made upon the minutes.

Appeal by Elizabeth Lowenthal, individually and as executrix, etc., from an order of the Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the 19th day of August, 1911, directing the executrix to make an appraisal of the personal estate of the deceased and to file an inventory.

Appeal by the defendant, the Fore Orange 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 Albany on the 18th day of October, 1910, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 21st day of October, 1910> denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Bichard A. Crozier, from a judgment óf the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 12th day of May, 1911, upon the verdict of a jury for $1,502.74, 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, Byron Pinkie, an infant, from a judgment of the Supreme Court in favor of the defendant, entered in the- office of the clerk of the county of Warren on the fifth .day of May, 1911, upon the verdict of a jury, and! also from an order entered in said’ clerk’s office on the 12th day of June, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by B.. Grant Johnston, pótitioner, 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 13th day of July, 1911, denying a motion that certain moneys he paid over to he applied upon an execution, and directing that the matter he referred to a referee to take testimony and report to the court.

Appeal by Henry Y.. Fleet 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 26th day of June, 1911, as resettled by an order entered on the 13th day of July, 1911, confirming the report of a referee which disallowed the appellant’s claim herein.

' Certiorari issued out of the Supreme Court and attested on the 12th day of June, 1911, directed to.

Appeal by the plaintiff, John Gonnor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 1st 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 Schenectady Trial Term.

Appeal by the defendant, William M. Gregory, trustee in bankruptcy, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 13th day of April, 1911, upon the verdiet of a jury rendered by direction of the court; also from an order entered in said clerk’s office on the 19th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on…

Appeal by Grace H. Btmn and another from.that part of a decree of the Surrogate’s Court of the county of Otsego, entered in said Surrogate’s Court on the 15th day of May, 1911, which overrules certain objections to the accounts of the executor herein.

Appeal by the defendant, The City of Binghamton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 9th day of June, 1911, upon the decision of the court rendered after a trial at the Broome Trial Term, certain questions of fact having been submitted to the jury.

Appeal by the plaintiff, J oseph. McDonald, 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 1st day of June, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term. The action was brought to recover for personal injuries sustained by the plaintiff while in the employ of the defendant.

Appeal by the plaintiff, Lina O’Bryan, as administratrix, etc., 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 1st day of September, 1910, dismissing the plaintiff’s complaint. The traction engine upon which the plaintiff’s intestate was riding fell through the bridge over the old Chenango canal, which is a feeder of the Erie canal, at Pecksport in the town of Eaton.

Appeal by the defendant, the Cortland Cart and Carriage Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Broome on the 1st day of March, 1911, upon the verdict of a. jury rendered by direction of the court, and also from an order-entered in said clerk’s office on the: 18th day of March, 1911,. denying the defendant’s motion for a new trial made upon the-minutes, with notice of an intention to bring…

Appeal by John A. Bensel and others, constituting the board of water supply of the city of New York, and another, from that part of an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 2d day of September, 1911, which confirms in respect to parcel 510 _the award to Azarias Winchell and Elwyn Winchell. of $15,000 for property taken for a reservoir.

Arrear by John A. Bensel and others, constituting the hoard of water supply of the city of New York, and another, from an order of the Supreme -Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Ulster on the 30th day of June, 1911, confirming the report of the commissioners of appraisal of Ashokan Beservoir, section 18, in respect to the awards of parcel 916, and directing the payment of witness and counsel fees, and reserving…

Appeal by the plaintiff, Martha J. Murdock, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 5th day of July, 1911, upon the decision of the court, at the close of plaintiff’s case on a trial at the Warren Trial Term before the court without a jury, dismissing the complaint upon the merits.

Appeal by the plaintiff, The Nitro Powder Company, • from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 12th day of April, 1911, upon the decision of the court rendered after a trial at the Ulster Trial Term, the case having been taken from the jury by consent, dismissing the complaint upen the merits.

<p>Decedent’s estate— conversion by executor — suit to set aside accounting and recover moneys converted — Statute of Limitations.</p> <p>A residuary legatee, who was an infant during the time of the adminis tratien of the estate, brought an action in the Supreme Court against the executor ten years after he had been discharged and.four years after she became of age to recover sums alleged to have been fraudulently obtained as commissions and disbursements, and to vacate portions of the surrogate’s decrees upon his accountings. After the plaintiff opened the case the trial court dismissed the action on the complaint and-on the opening.</p> <p>Held, a new trial should be granted.</p> <p>(Per Betts, J.): On such amotion all the.allegations of the complaint must be taken as true;</p> <p>A suit in equity may be maintained by a residuary legatee to set aside the accountings in the Surrogate’s Court and to recover the sums converted;</p> <p>The Statute of Limitations on such suit is that prescribed in subdivision 5 of section 883 of the Code of Civil Procedure. Hence the cause of action is not deemed to have accrued until the discovery by the plaintiff, or the person under whom she claims, of the facts constituting the fraud.</p>

Appeal by the defendant, Lansing I. Platt,'sheriff, from an order of the County Court of the county of Albany, made on the 6th day of September, 1911, discharging and releasing the relator from further confinement in the Albany County Penitentiary upon the return of a writ of habeas corpus. The petition for the writ stated that the cause of the imprisonment was a commitment issued by George W. Stevens, city judge of the City of Eensselaer.

Appeal by the plaintiff, The Town of Whitestown, from a judgment of the Court of Claims of the State, of New York, rendered on the 27th day of September, 1909, and entered in the office of the clerk of said court, dismissing plaintiff’s claim for damages,

Certiorari issued out of the Supreme Court and attested on the 21st day of March, 1911, directed to the board of supervisors of Chenango county, commanding said board to certify and return to the office of the clerk of the county of Chenango all and singular its proceedings had in rejecting a certain claim presented by the relator.

Appeal by the defendant, the Postal Telegraph-Cable Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Yew York on the 15th day of June, 1911, upon the verdict of a jury for $3.6,684.42, and also from an order entered in said clerk’s office on the same day, as resettled by an- order entered on the 29th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the National Association of Employing Lithographers and others, from part of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 14th day of July, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint but granting costs and an extra allowance to the plaintiffs in an action for an injunction.

Appeal by the defendants, the National Association of Employing Lithographers and others, from part of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 14th day of July, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint but granting costs and an extra allowance to the plaintiffs in an action for an injunction.

<p>Carrier — fire—loss of goods after unloading — bill of lading—when carrier not liable.</p> <p>Where a steamship company unloads goods upon its wharf in the city to which they have been consigned but fails to notify the consignee of their arrival, its possession continues, for forty-eight hours at least, tobe that of a common carrier by water and it is subject to all the liabilities of such a carrier, except as they may be modified by the bill of lading.</p> <p>It seems, that where goods were unloaded on Saturday and destroyed by fire the next day before notice to the consignee of their arrival, the steamship company is liable for their value unless relieved by the bill'of lading, and this is so although the fire was not due to negligence on the part of the company.</p> <p>The steamship company, however, is relieved from liability by a clause in the bill of lading providing that “ no such carrier or party in possession shall be liable for any loss-or damage resulting from fire.”</p> <p>As the steamship company’s possession of the goods and liability for their loss at the time of the fire was that of a common carrier by water, the exemption of the bill of lading applied.</p> <p>Even assuming that the company had ceased to be a common carrier in its relation to the goods, it was a “party in possession” and entitled as such to the protection afforded by the bill of lading.</p>

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

Appeal by the defendant, the Union Waxed and Parchment Paper 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 18th day of December, 1911, denying the defendant’s motion for a stay of all proceedings on the part of the plaintiffs until three of them submit to an examination pursuant to an order duly made, for their examination before trial herein.

Appeal by the plaintiff, Isaac A. Benequit, 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 2d day of December, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint and dismissing the complaint.

Appeal by the defendant, James S. Herrman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk, of the county of New York on the 3d day of October, 1911, as resettled by an order entered in said clerk’s office on the 30th day of October, 1911, denying the defendant’s motion for a further bill of particulars.

Appeal by the defendant, Thomas & Buckley Operating 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 14th day of June, 1911, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 21st day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, International Ore Treating 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 29th day of November, 1911, denying the defendant’s motion to compel the plaintiff’s attorney to accept the defendant’s proposed case on appeal.

Appeal by the defendant, George Backer Construction 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 13th day of October, 1911, denying a motion to vacate an order for the examination of the defend-, ant before trial;

Appeal by the plaintiff, James S. Herrman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of June, 1911, denying the plaintiff’s motion for a bill of particulars.

Appeal by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of November, 1911, resettling a former order entered in said clerk’s office on the 8th day of November, 1911, which granted the application of Mary Anna Palmer Draper to file objections to the report of commissioners of estimate nunc pro tunc as of May 15,1911, and directed that said objections…

Appeal by the defendant, Charles E. Ellis, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of August, 1911, granting the plaintiff’s motion for judgment on the pleadings.

Appeal by the defendant, the-American Press Association, from an ,order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of December, 1911.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of July, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of July, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 11th day of February, 1911, directed to William D. Dickey, chairman, and others, as commissioners, etc., commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in respect to a certain claim for damages caused hy a change of grade.

Appeal by the defendant, the Brooklyn Union Elevated 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 Hew York on the 25th day of March, 1911, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 27th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Real property—covenant against incumbrances—breach of warranty — measure of damages — purchase of outstanding tax title — evidence— burden of proof—statutory presumption as to regularity of - tax sale.</p> <p>In an action on a breach of a covenant against incumbrances, the plaintiff’s damages are not limited to the amount that may have been due on the lands when he purchased them, but what he has been obliged to pay to relieve them from the burden. The covenant is treated as one of indemnity, and although broken as soon as made, if broken at all, a recovery, beyond nominal damages, is confined to the actual loss sustained by the covenantee by reason of the breach. If he has extinguished an incumbrance, he is entitled to recover the cost of so doing. Where the lands were sold for taxes prior to a delivery of a deed containing a covenant against incumbrances, the tax title is superior to that of the person in possession at the time the tax was levied and of all persons claiming under him.</p> <p>While as a general rule a grantee claiming a breach of warranty against incumbrances who purchases an outstanding paramount title can recover only on affirmative proof that the outstanding title was good and paramount to that of his warrantor, the burden of proof as to an . outstanding tax title has been changed by the sections of the Tax Law which make a tax deed after one year presumptive evidence that the sale and all proceedings prior thereto were regular, and makes such presumption conclusive after the expiration of two years.</p> <p>Hence, where more than two years have expired since the tax sale, one claiming a breach of a covenant against incumbrances by reason of the tax sale is not bound to show affirmatively that the proceedings leading to the sale were regular. In order to recover, it is only necessary for him to place the tax deed in evidence and prove the amount he was obliged to pay to redeem the land.</p> <p>Moreover, the amount of the tax originally levied is not the measure of damages, but the amount paid to free the lands from the incumbrance. Provisions of the statute making a tax deed presumptive evidence of certain facts are not restricted to actions to which the State is a party.</p>

Appeal by the defendant, the American Play Company, 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 23d day of October, 1911, overruling the said defendant’s amended demurrer to the complaint.

Appeal by fee plaintiff, Mary A. Pearson, from a judgment of fee Supreme Court in favor of fee defendant, entered in fee office of fee clerk of fee county of Hew York on. fee 19fe day of May, 1911, upon, fee dismissal of fee complaint by direction of fee-court after a trial at fee Hew-York Trial Term.

Appeal by the defendants, Jules Breuchaud 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 Kings on the 26th day of Hay, 1911, upon a remittitur from the Court of Appeals, and also from an order entered in said clerk’s office on the same day directing the entry of said interlocutory judgment.

Appeal by the plaintiff, Joe Romanik, from a judgment of the Supreme Court in favor of the defendants Kovensky and another, entered in the office -of the clerk -of the -county of Kings on the 2d day-of Starch, T909j upon the decision-of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits as to said defendants.

Appeal by the petitioners, Eliza 0. White and others, in summary proceedings instituted for the possession of land, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, rendered on the 16 th day of June, 19.11, dismissing the proceedings.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of May, 1911, upon the verdict of a jury for $300, and also from an order entered in ¡said clerk’s office on the 31st day of May,. 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Delaware, Lackawanna and Western 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 17th day of April, 1911, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Louis L. Richman, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 8th day of July, 1911, in favor of the defendant, dismissing the complaint, with costs, after a trial before the court without a jury.</p>

<p>Appeal by the plaintiff, George M. Clyde, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Robert Dooling, 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 24th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of June, 1911, denying the plaintiff’s motion'for a new trial made upon the minutes.</p>

Appeal by the defendant, George Louis Jose, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 7th day of April, 1911.

Appeal by the plaintiff, Albert J. Loretz, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 15th day of February, 1911.

Certiorari issued out of the Supreme Court and attested on the 21st day of April, 1911, directed to the president and trustees of the village of Ossining, commanding them to return to the office of the clerk of the county of Westchester all and singular their proceedings had concerning the dismissal of the relator from the police force of the village of Ossining.

Appeal by the defendant, Emma Kraus, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 23d day of May, 1911.

Appeal by the defendant, Annie E.- Franzreb, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, rendered on the 23d day of May, 1911.

Appeal by the plaintiff, C. Olivia Sabine, from a judgment of the Supreme Court in favor of the defendant Maggie S. Paine, entered in the office of the clerk of the county of Suffolk on the 18th day of April, 1911, upon the verdict of a juiy rendered by direction of the court, and also from an order entered in said clerk’s office on the 1st day of May, 1911, denying the plaintiff’s motion for a new trial.

Appeal by the defendants, The New York Central and Hudson Biver Bailroad Company and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 13th day of July, 1910, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Appeal — dismissal for lack of prosecution — failure to comply with. . rules of practice.</p> <p>On a motion to dismiss .an appeal for lack of prosecution thereof, the opposing affidavits should comply with the special rule of practice.</p>

Appeal by the plaintiff, William Lauder, as trustee, from an order of the County Court of Kings county, entered in the office of the clerk of said county on 11th day of October, 1911.

Appeal by the defendant, Daniel Hoynahan, as collector, 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 5th day of July, 1911.

Appeal by the plaintiff, the Wood Manufacturing and Realty Company of Long Island, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the comity of Nassau on the 8th day of March, 1911, upon the dismissal of the complaint by direction of the court at the opening’ of the case on a trial at the New York Special Term.

<p>Appeal by the defendant, The State Board of Tax Commissioners, and by the intervenor, The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of December, 1910, reversing a determination of the State Board of Tax Commissioners and canceling an assessment.</p>

Appeal by the defendant, Charles Cranford, 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 15 th day of February, 1911, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Security Mutual Life Insurance. Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day of August, 1911, granting the plaintiff’s motion for a bill of particulars.

Appeal by the plaintiff, Patrick O’Connor, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 20th day of November, 1911, substituting a third party as defendant in place of Gustave Lock, and discharging said Lock from liability to the plaintiff or to said third party.

Appeal by the defendant, St. Michael’s Roman Catholic Church in the City of Brooklyn, from SO' much of a judgment of the Supreme Court, in part in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 2d day of September, 1910, upon the report of a referee, as awards judgment against said defendant; and by the defendant, Charles E. McDonnell, bishop, etc., from so much of said judgment as dismisses the complaint as to him, without costs,…

Appeal by the defendant, Daniel Buhre, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of October, 1911.

Appeal by the defendant, Rudolph Oelsner, 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 11th day of May, 1910, upon the verdict of a jury, with notice of an intention to bring up for review an order entered in said clerk’s office on the 18th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 26th day of April, 1910,…

Appeal by the defendant, Barney Levy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of February, 1911, upon the verdict of a jury for $1,000, and also from an older entered in said clerk’s office on the 8th day of March, 1911, denying the said defendant’s motion for a new trial made upon the minutes.

. Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st 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 same day, denying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the defendant, the Pennsylvania 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 February, 1911, upon the verdict of a jury for $10,000, 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, The Delaware,, Lackawanna and Western Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of March, 1911, upon the verdict of a jury for $3,000, and also from, an order entered in said clerk’s office on the 14th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, the Gas Engine and Power Company and another, from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d 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 16th day of March, 1911, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 1st day of March, 1911, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Antonio Misiani, from a judgment of the County Court of Kings county, rendered against the said defendant on the 11th day of May, 1910, convicting him of an attempt to commit extortion, and also from two orders entered on the 16 th day of May, 1910, denying the said defendant’s motions for a new trial and in arrest of judgment.</p>

<p>Principal and agent — broker’s action for commissions— conduct of broker preventing recovery.</p> <p>Plaintiff, duly employed to sell defendant’s land, influenced other brokers to look at it, and by later showing it to them and a prospective purchaser, enabled them to go directly to the owner and obtain an option. Plaintiff concealed the names and identity of those with whom he was negotiating, and when defendant went to him to make inquiry whether they were his parties, as he had some thought that they might be, plaintiff made no claim that they were his parties, denied knowledge of them and advised defendant to give the option. ■ Thereupon defendant made engagements whereby he was rendered' hable to the other brokers. Held, that as plaintiff had kept his client in ignorance and had advised him to give the option to other brokers he could not recover commissions. This is so, although plaintiff made a claim on the day the contract was signed, and the defendant later offered him $200 and indicated a willingness to make a settlement.</p> <p>Hirschberg, J., dissented.</p>

<p>• Appeal by the defendant, John P. Howard, from a judgment of the Supreme Court in favor of the plaintiff, éntered in the office of the clerk of the county of Kings on the 10th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Buell G. Davis, as executor, etc., from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of April,. 1911, pursuant to an interlocutory judgment entered in said clerk’s office on the 13th day of July, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to bring up for review said interlocutory…

Appeal by the Superintendent of Banks of the State of New York, in. charge of the Carnegie Trust Company, and another, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the- office of the clerk of the county of Kings on the 14th day of July, 1911, directing said Superintendent of Banks and the Carnegie Trust Company to forthwith pay over to the city chamberlain of the city of New York to the credit of this action the sum of $3,600.26…

Appeal by the plaintiff, Harriet IN. K. Reiohard, 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 Rensselaer on the 4th day of August, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Rensselaer Trial Term.

Appeal by the plaintiff, Emma A. Taylor, as executrix, etc., from part of a judgment • of the Supreme Court in part in favor of defendant, entered in the office of the clerk of'the county of Onondaga on the 14th day of July, 1911, upon the decision of the court rendered after a trial at the Onondaga Trial Term, a jury having been waived; and also from part of an order entered in said clerk’s office on the 24th day of July, 1911: Also an appeal by the defendant, the New York…

Appeal by the plaintiff, Daniel Boosing, from -a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 25th day of July, 1911, upon the report of a referee dismissing the complaint upon the merits. Judgment affirmed, with costs, upon the opinion of Kenefick, Referee.

<p>Petition of the Association of the Bar of the City of New York to discipline an attorney.</p>

Appeal by the plaintiff, John H. Ireland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 3d day of April, 1911, upon the verdict of a jury, and also from an order entered ia said clerk’s office on the 4th day of April, 1911, denying the plaintiff’s- motion for a new trial made upon the minutes.

Appeal by the defendants, Edward R. Poerschke and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of May, 1911, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Alfred H. Smith and another, composing the firm, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 22d day of April, 1911, upon the verdict of a jury for $1,600, and. also from an order entered in said clerk’s office on the 25th day of April, 1911, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Mary E. Bristor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office- of the clerk of the county of Hew York on the 9th day of June, 1911,. upon the verdict of a jury for $2,000; which was reduced., by the court to $1,400,. and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Samuel H. E. Jennings 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 Mew York on the 14th day of February, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 24th day of February, 1911, denying the defendants’ motion for a new trial made upon the minutes.

<p>Bills and notes—banks — deposit of check for collection—failure to collect—rights of depositor — entry in pass book—forgery of payee’s name.</p> <p>"Where a check is deposited in a trust company for collection it does not acquire title thereto but simply becomes the agent of’the depositor to make the collection.</p> <p>In such a case the depositor cannot recover the amount thereof from the trust company with which he deposited it unless he alleges and proves that the company, in fact, collected the amount of the check or was negligent in failing to do so. The burden of proving these facts is on the depositor.</p> <p>The fact that when plaintiff deposited the check the amount thereof was credited to his account by the trust company and an entry thereof made in his pass book, does not change the legal relation of the parties. Such entries did not constitute a payment of the check or transfer title thereto to the trust company.</p> <p>Moreover, since the indorsement of the name of the payee on the check was a forgery, plaintiff never acquired title thereto and could not enforce payment thereof.</p> <p>It seems, that even if the trust company had collected the check plaintiff. would not have been entitled to the proceeds.</p> <p>It seems, that in such ease the amount collected would have belonged to the payee, who could have compelled the trust company to refund the amount received.</p>

Appeal by the defendant, Elizabeth Riordan, from an order .of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of June, 1911, affirming a judgment of the Municipal Court of the City of New York in favor of the plaintiff, rendered on the 17th day of February, 1911.

Motion by the defendant, The Computing Scale Company of Dayton, Ohio, for a new trial upon a ease 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 New York Trial Term in June,, 1911.

Abbeal. by the plaintiff,, Henry Siede, from an order of- the1 Supreme; Court,. made at the New- York Special- Term and! entered1 in. the office; of the: clerk: of the- county of New York on the 29 th day of November,-1910, ¿Denying the plaintiff’s motion made upon defendant’s papers to vacate an order for the- examination: of the plaintiff: before' trip!

<p>Appeal by the defendant, the American Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of May, 1911, upon the verdict of a jury for $3,750, and also from an order entered in said clerk’s office on the 15th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, John W. Blyth, 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 12th day of May, 1911, setting aside a verdict in favor of the plaintiff and dismissing the complaint upon the merits, and also from a judgment entered in said clerk’s office on the 19th day of May, 1911, pursuant to said order.

<p>Appeal by the plaintiff, Thomas M. Hodgens, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of October,, 1911, which was resettled, denying the plaintiff’s motion for judgment on the pleadings.</p>

<p>Appeal from an order entered on the 29th day of September, 1911, as resettled by an order entered on the 14th day of October, 1911, granting a motion for reargument of a motion to continue an injunction during the pendency of the action, vacating the decision of the original motion and granting a motion for injunction.</p>

<p>Husband and wife—failure to pay alimony and counsel fee— dismissal of appeal from decree.</p>

<p>Appeal from a judgment entered in the Mew York county clerk’s office on the 1st day of June, 1911, upon the verdict of a jury, and from an order entered on-the 6th day of June, 1911, denying a motion for a new trial. Judgment and order affirmed, with costs. Mo opinion. Present—Ingraham, P. J. (dissenting), McLaughlin, Clarke, Scott and Dowling, JJ.</p>

<p>Appeal from an order of the Special Term, entered in the Mew York county clerk’s office on the 13th day of November, 1911, allowing the service of an amended answer.</p>

<p>Contract—judgment on pleadings — liberal construction.</p>

<p> Negligence-^motor vehicle — death by, automobile. </p>

<p>Appeal from an order entered in the Hew York county clerk’s office on the 14th day of September, 1911, denying a motion for retaxation of costs.</p>

<p>Sale — inferior quality of goods — trial—witness — exclusion of testimony.</p>

<p>Partition — interest on taxes paid by one cotenant.</p>

<p>Appeal from an order entered in the Hew York county clerk’s office on the 31st day of September, 1911, denying a motion to change the place of trial.</p>

<p>Appeal from a judgment entered in the Broome county clerk’s office on the 26th day of April, 1911, and from an order entered on the 9th day of May, 1911.</p>

<p>Tax — special franchise — street railway —r canceling tax.</p>

<p>Appeal from a judgment entered in the Mew York county clerk’s office on the 23d day of June, 1911, upon a verdict directed by the court and from an order denying a motion for a new trial.</p>

<p>Appeal from an order entered in the Mew York county clerk’s office on the 22d day of November, 1911, as resettled by an order entered on the 4th day of December, 1911, granting a motion for an injunction pendente lite.</p>

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 7th day of April, 1911.

<p>Motions for reargument or for leave to appeal to the Court of Appeals, and to resettle an order of reversal. (See 147 App. Div. 634.)</p>

<p>Appeal from an order, made at the New York Special Term and entered in the office of the clerk of the county of New York February 14, 1911, denying a motion for a peremptory writ of mandamus.</p>

<p>Appeal from an order, made at the New York Special Term and entered in the office of the clerk of the county of New York February 14, 1911, denying a motion for a peremptory writ of mandamus.</p>