Volume 15 — New York Appellate Division Reports

Appeal by the defendants, The Metropolitan Elevated Railway 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 New York on the 16th day of April, 1896, upon the decision of the court rendered after a trial at the New York Special Term. This appeal was transferred from the first department to the second department.

<p>Negligence — elevated railroad allowing its platform to become so crowded that a passenger is pushed off into the street.</p> <p>An elevated railroad company which, after its platform is full, continues to sell tickets and allows passengers to go upon its platform in such numbers as to crowd a passenger already there forward, and off from the front edge of the platform, on which there is no protecting rail, is liable for the injury thus occasioned to him; such liability does not rest upon the fact that the platform was insufficient to accommodate ordinary traffic, or that the structure as such was defective.</p>

Appeal by the defendants, Max Scheuer and another, as executors, etc., of Simon Scheuer, deceased, 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 10th day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of February, 1896, denying the defendants’ motion for a new trial made upon the minutes.

Cross-appeals by the plaintiff and defendants from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 28th day of December, 1896, upon the decision of the court, rendered after a trial at the Kings County Special Term, modifying and reducing the assessment made of the property of the plaintiff. The plaintiff appealed from a portion and the defendants from the whole of the said judgment.

<p>Appeal by the plaintiff, Robert S. Livingston, from a judgment of the Supreme Court in favor of the defendant, The City of Albany, entered in the office of the clerk of the county of Dutchess on the loth day of September, 1896, upon the decision of the court rendered after a trial at the Dutchess Special Term dismissing his complaint.</p>

<p>Motion to make an answer definite—a denial of all allegations, not already admitted, or denied, is good— an answer, not denying that a policy annexed to the complaint was executed, which sets up a different policy, construed.</p> <p>A denial, in an answer, of each and every allegation .in the complaint contained “not hereinbefore or hereinafter admitted, denied or controverted,” which has already specifically admitted and denied certain allegations of the complaint, is sufficient.</p> <p>.The complaint in an action upon a policy of insurance had annexed to it an alleged copy of the policy; the answer neither admitted nor denied specifically the allegation of the making of that policy, but set up as a further defense that a policy, of which a copy was annexed to the answer, was obtained by the false representations of the applicant for insurance. The policy annexed to the answer differed from the one annexed to the complaint, although both related to the same subject-matter.</p> <p>Held, that the answer should be construed as it would if the pleader, in specifically referring to and answering the allegation of the complaint relative to the making of the policy, had alleged that the defendant made another contract different from that set out in the complaint, the effect of which practically would he a denial that it had made the contract set forth in the complaint; That a motion to compel the defendant to make its answer more definite and certain should he denied.</p>

Appeal by the defendant, the D. G. Yuengling Brewing Company, under section 1344 of the Code of Civil Procedure, from a judgment of the Appellate Term of the Supreme Court in the city of New York in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of September, 1896, reversing a judgment of the General Term of the City Court of the city of New York, which affirmed a judgment in favor of the defendant, entered in the office…

Appeal by the defendants, Henry F. Clapp and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of November 1896, upon the report of a referee.

Appeal by the defendant, Richard McCloskey, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 16th day of December, 1896, affirming an order of filiation made against the defendant by a police justice of the city of Brooklyn.

Appeal by the defendant, William H. Hamilton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of October, 1895, upon the report of a referee.

<p>Contract to sell real estate—inability of the vendor to perform—action to recover a payment thereon — when the deed must be executed by the vendor and not by another — title by adverse possession.</p> <p>In an action to recover money paid on account on a contract for the sale of No. 37 West Twenty-eighth street in the city of New York, by the terms of which the defendant agreed to “ execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered,” to the plaintiff, a proper deed, containing a general warranty and the usual full covenants for the conveying and assuring to the plaintiff the fee simple of the premises, free from incumbrances, it appeared that, at the time for the completion of the sale, the title to the land was not in the defendant, but in one Hughes, who offered to convey it to the plaintiff, but the plaintiff objected that he was entitled to a deed from the defendant and also on the ground that the building No. 37 West Twenty-eighth street encroached two and three-quarters inches on land not covered by the deed, which appeared to be the fact.</p> <p>The court declined to submit any question to the jury, and directed a verdict for the plaintiff for the amount claimed.</p> <p>Held, that as the present action was brought, not in affirmance of the contract, but rather in rescission thereof, it was not incumbent upon the plaintiff to prove his readiness to perform the contract on his part, notwithstanding the fact that he had alleged such readiness in his complaint;</p> <p>That inasmuch as the defendant was unable to perform, no offer of payment to the defendant of the purchase money was requisite to put him in default.</p> <p>Semble, that as the stipulations in the contract were concurrent and dependent, neither party would be in a position to require performance from the other, unless he was then ready and willing to perform;</p> <p>Semble, that if readiness to perform had been an essential element of the plaintiff’s cause of action, inasmuch as the only testimony to support it was given by the plaintiff himself, and he was an interested party, the question should have been submitted to the jury.</p> <p>Quœre, whether, under the agreement to “ execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered,” a deed, the plaintiff was not entitled to a deed containing covenants of warranty made by the defendant.</p> <p>Where the record title to premises agreed to be conveyed under a contract for the conveyance of real estate is defective, but the vendor claims that the defect has been cured by adverse possession, the burden is on him to establish that fact.</p> <p>Mere possession for twenty years is not sufficient to establish title by adverse possession, as the possession of land is always presumed to be in subordination to the legal title.</p>

<p>Contract — determinable on ten days’ notice— waiver of the notice by an instrument not under seal—conditional delivery of such instrument—deslmction of the locus in quo by fire.</p> <p>A contract, pursuant to which the plaintiff was to have the privilege of assorting the refuse dumped from the carts of the street cleaning department of the city of New York, provided that if at any time the commissioner of street cleaning should deem it for the best interest of the city to terminate the contract, for any other cause than the failure of the plaintiff to comply with its terms, he might do so upon giving ten days’ notice to the plaintiff.</p> <p>After the plaintiff had entered upon the performance of his contract, the assorting of refuse was, with his acquiescence, suspended in compliance with the requirements of the health department of the city, and thereafter the plaintiff executed three instruments, one of which stated that the contract was thereby canceled and revoked by mutual consent, and the others that the contract might be terminated forthwith without service of the notice specified in the contract, and without any further notice being given to the plaintiff ; subsequently the commissioner of street cleaning served a notice on the plaintiff stating that his services would not be required after that date.</p> <p>In an action brought to recover damages for a breach of the contract it was</p> <p>Held, that, while the instruments executed by the plaintiff after the suspension of the assorting, not being under seal, could not be effectual as a release without proof of a consideration to support them, they constituted prima facie a waiver of the notice provided for by the contract;</p> <p>That it was competent to show, however, that such instruments were delivered conditionally, and that the condition upon which they were to become operative had not arisen, as the effect of such evidence would not be to contradict their terms nor their legal effect;</p> <p>That even if the instruments in question did not operate as a waiver of the notice provided for by the contract, the plaintiff’s recovery was, by reason of the provision in the contract authorizing the commissioner to terminate it, upon ten days’ notice, limited to the damages for that period;</p> <p>That there being no provision in the contract for the reconstruction or repair of a dumping board, which, by reason of a Are, was not in condition for use when the contract was made, the plaintiff was not entitled to any allowance, because the dumping board was not fitted up and put into use.</p>

Appeal by the petitioners, Adolph Machwirth 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 24th day of July, 1896, denying their application for leave to bring an action against James Matthews, as receiver, etc.

<p>A savings lank deposit in trust, not intended to give the cestui que trust cm interest therein, remains the property of the depositor.</p> <p>Whenever a deposit is made in a savings bank by a person in his own name, in trust for another, and there are no circumstances rebutting such presumption, it will be conclusively presumed that the depositor has divested himself of the legal and beneficial title to the fund, and has vested himself with the legal title as trustee for the person named as cestui que trust; but when the depositor does not make the deposit in trust with the intention of giving to the person named as cestui que trust any beneficial interest in the fund, but for his own benefit, he does not divest himself of his legal title to the deposit, but continues to be its beneficial owner, notwithstanding the form of the deposit.</p>

<p>Appeal by the defendant, the Empire Loan and Investment Company, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Kings on the 30th day of October, 1896, appointing a temporary receiver of the defendant.</p>

Appeal by the plaintiff, Leopoldine Schaum, 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 7th day of Hovember, 1896, upon the dismissal of her complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Hew York, and also from an order entered in said clerk’s office on the 29th day of October, 1896, denying the plaintiff’s motion for a…

Appeal by the plaintiff, Joseph McOonkey, 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 12th day of October, 1896, upon the verdict of a jury rendered by direction of the court in an action on a promissory note. This appeal was transferred from the first department to the second department.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of July, 1896, • denying the defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

Appeal by the defendants, Abraham Sindrack and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling their demurrer to the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 22d day of October, 1896, directing the entry of…

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Richmond county in favor of the defendant, rendered on the 25th day of January, 1897, upon the decision of the court sustaining the defendant’s demurrer to an indictment.

Appeal by the relators from three orders of the Supreme Court, made at the Kings County Special Term and entered in the office of tlie clerk of the county of Kings on the 18th day of February, 1897, denying their respective applications for peremptory writs of mandamus directing the respondent to pay them respectively as follows: To the said Charles Goedel the sum of $124, being the amount of his wages for the month of January, 1897, as janitor of the armory of Troop C of…

Appeal by the defendant, Aaron Coon, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 8th day of December, 1896, denying his motion to change the place of trial of the action from the county of Dutchess to the county of Cattaraugus.

Appeal by the defendant, Amelia Ferguson, 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 29th day of October, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling her demurrer to the ¡ilaintiff’s complaint. This appeal was transferred from the first department to the second department.

<p>Appeal by the defendants, Peter Wilkens 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 26th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26tli day of June, 1896, denying the defendants’ motion for a new trial made upon the minutes.</p> <p>This appeal was transferred from the first department to the second department.</p>

Appeal by the defendants, Anthony W. Dimock 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 Hew York on the 12th day of June, 1896, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 10th day of June, 1896, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.

<p>Negligence — injuries from coal undermined during the work —risks of the employment — the foreman a co-employee.</p> <p>While the plaintiff, an employee of the defendants, was, with other employees, engaged, under the immediate direction of a foreman, in shoveling coal from a large pile, the surface of which was frozen, a portion of the coal of the frozen surface, which had been undermined during the progress of the work, fell upon and injured the plaintiff.</p> <p>Held, that there being no reason to apprehend any danger of injury, when work upon the pile was commenced, and the hazard having arisen from the details of the work done by the plaintiff and his co-employees, the defendants were not guilty of negligence on the ground that they had not furnished the plaintiff with a safe place in which to work;</p> <p>That it was a risk which the plaintiff assumed upon entering into the employment; (</p> <p>That the foreman, go far as related to the service in which the plaintiff was engaged, was a co-employee of the plaintiff.</p>

<p>Appeal by the plaintiff, the Tradesmen’s National Bank, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 1st day of June, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing its complaint upon the merits.</p>

<p>Cost price as evidence of value — an attachment of property of a corporation by an assignee of a directm' does not impair the cause of action—• the pi-eference thus-secured over other creditors, how a/voided — costs to defendant.</p> <p>The cost price of goods is some evidence of their value, and in the absence of other-proof thereof is sufficient.</p> <p>Where a director of an insolvent corporation assigns his claim against the corporation and the assignee obtains an attachment and levies upon the property of' the corporation, the fact that these proceedings on the part of the assignee result in an unlawful preference in favor of the director, as against other creditors of the corporation, does not constitute a defense to the cause of action.</p> <p>The remedy in such a case is to move to vacate the attachment and to set aside, the execution.</p> <p>Where the defendant in an action obtains a judgment upon the ground that the contract upon which a cause of action is based is invalid, such a judgment effectually disposes of that cause of action and the defendant is entitled to costs.</p>

<p>Constitutional law — subject of a private or local act, when expressed in its title.</p> <p>Chapter 178 of the Laws of 1896, amending section 69 of the County Law, by adding a provision applicable only to Queens county, entitled “An act to amend chapter six hundred and eighty-six of the laws of eighteen hundred and ninety-two, entitled ‘An act in relation to counties, constituting chapter eighteen of the general laws,’ as amended by "* * * relating to authorizing towns to borrow money,” assuming that it is to be regarded as a local law, sufficiently conforms to the requirements of section 16, article 3 of the Constitution of the State of New York, which declares that no private or local bill shall embrace more than one subject, and that that shall be expressed in its title.</p>

<p>Appeal by the plaintiff, Nicholas Pearson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 16th day of June, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing his complaint upon the merits.</p>

<p>Declarations of trust of like date — the legal title prevails—if not of like date the prior equity prevails —proof that the money of one furnished the consideration gives him the preference.</p> <p>Where each of two parties claim the same mortgage, which was held by a third person who had received money for investment for each of them, if the equitable rights of the parties thereto are absolutely equal, so far as the declarations of trust in respect thereto are concerned, the party to whom an assignment of the mortgage has been made, having the legal title, will prevail.</p> <p>Semble, that if a declaration of trust had been made to one, prior to the date at which it was made to the other, the prior equity of the former would prevail over the legal title in the latter.</p> <p>The title of the party whose money is shown to have furnished the consideration for the mortgage will prevail over both the prior declarations of trust and the legal title as contained in the written assignment.</p>

<p> Amendatory statute — mechanics lien—its enforcement in equity against sureties on a bond, giren to discharge the lien — a prior judgment against the contractor is unnecessary. </p> <p>In construing an amending provision of a statute, reference may be had to the other provisions of which it becomes a part to ascertain its object and purpose In that relation.</p> <p>Section 1836 of chapter 410 of the Laws of 1882, as amended by chapter 605 of the Laws of 1895, which provides that a lien upon funds due a contractor or a sub-contractor may be discharged “by giving an undertaking with at least two sureties, * * * to the effect that the person or persons from whom the amount set forth in the notice of lien shall be claimed to be due, or to grow due, will pay on demand to the claimant or claimants named in such notice of lien, the amount of any judgment which may be recovered in an action upon the claim or demand, specified in such notice of lien, against such person or persons, not exceeding the sum specified in the undertaking, with interest and costs,” does not necessarily require that a recovery be primarily had in an action against the contractor alone, as all that is requisite within the purpose of the statute in that respect may be accomplished in an action in equity in which he and the sureties may be parties defendant.</p> <p>Semble, that the right to go into equity in the first instance does not, however, deny to the claimant the right to proceed by action at law against the contractor, and, after the recovery of judgment against him, to proceed by further action to charge the parties upon the undertaking.</p>

Appeal by the plaintiff, The J. & A. McKechnie Brewing Company, from a judgment of the Supreme Court in favor of the defendants,'entered in the office of the clerk of the county of Ontario on on the 26th day of June, 1895, upon the report of a referee. This appeal was transferred from the fourth department to the third department.

Appeal by the defendant, Theodocius Fenton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 7th day of October, 1896, upon the verdict of a jury; also from an order entered in said clerk’s office on the 26th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clei'k’s office on the 1st day of October, 1896,…

<p>Attachment — vacated as to all hut one of several partners, it ceases to he a lien on the firm assets.</p> <p>Where, after an action has been begun against three persons, as partners and joint debtors, by service of process upon one of them, another action is commenced against the same persons, and an attachment, granted against all of them, and levied upon the firm property, is subsequently vacated as to two of them, such attachment is no longer a lien upon the firm property; and an execution, issued in the action first begun, against the personal property of the joint debtor previously attached in that action (and, if that were insufficient, against the partnership property of all the joint debtors), will have precedence in payment from the firm property over an execution subsequently issued under a judgment recovered in the action in which the attachment was sustained only as against one of the partners.</p>

Appeal by the claimant, the Lakeside Paper Company, from the award of the Board of Claims of the State of New York, entered in the office of the clerk of said board on the 8th day of October, 1896, upon the decision of the board rendered after a trial duly had before it.

Appeal by the plaintiff, The Ulster County Savings Institution, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the 15th day of April, 1895, upon the dismissal of its complaint upon the merits, directed by the court after a trial at the Ulster Circuit, and also from an order entered in said clerk’s office on the 15th day of April, 1895, dismissing the complaint upon the merits.

Appeal by the defendant, Horace G. Young, as executor, etc., of Thomas Cornell, deceased, 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 19th day of December, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Ulster Circuit, and also from an order bearing date the 10th day of December, 1895, and entered in said clerk’s office, denying the defendant’s…

<p>Motion by the respondent, Isaac Rosskam, to dismiss an appeal pending in the Appellate Division of the third department.</p>

Appeal by the defendant, John J. Riley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 23d day of May, 1896, upon the verdict of a jury, and also from an order bearing date the lltli day of May, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes. The judgment entered in this action was for the sum of $500 damages, and $148.54 costs.

Appeal by the defendant, The Kingston City Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Ulster on the 20th day of August, 1896, upon the decision of the court rendered after a trial at the Ulster Special Term.

Appeal by the defendant, L. Ogden Wadleigh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 8th day of May, 1896, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 26th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the defendant, William H. Bilbrough, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 27th day of November, 1896, denying his motion to vacate an order granting the plaintiff an extra allowance. The plaintiff’s complaint is for money loaned, and demands judgment for $4,580, with interest from the 3d of June, 1896.

Appeal by the defendant, Thomas C. Salisbury, 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 29th day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John E. McElroy, as executor of Philip Moore, deceased, 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 23d day of November, 1896, upon the report of a referee.

Appeal by the defendant, The Central Vermont 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 Franklin on the 15th day of May, 1896, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 11th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Metropolitan Life Insurance Company, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 9th day of November, 1896, upon the decision of the court affirming a judgment in favor of the plaintiff for fifty-eight dollars and seventy-three cents damages and costs rendered by a justice of the peace of the city of Troy.

<p>Mre insurance — mistake — surrender of a policy, conditional upon the issue of a new policy.</p> <p>In an action brought to recover upon a policy of insurance,- it appeared that the plaintiff owned a “ home farm,” and also another farm, a mile distant, known as the “Knapp farm,” the latter being insured by the defendant at the Owego agency of the company, and the former by another company at the Montrose agency. The plaintiff built a new barn on the “home farm,” and, by mistake, applied to the defendant’s agent to insure it. The agent, who thought the new barn was on the “Knapp farm,” on August twelfth wrote a new policy to cover all the buildings on that farm and delivered it to the plaintiff, who paid the premiums and promised to return the old policy, which was canceled by the agent upon his books.</p> <p>The plaintiff subsequently discovered the error, mailed the agent the new policy, asked him to let the old policy stand and to issue a further policy upon the new barn, and retained the old policy. The agent agreed to issue another policy, but had not returned any premium nor issued this policy when the new barn was burned.</p> <p>Held, that the policy of August twelfth remained in force, as the plaintiff did not send it to the agent for cancellation, except upon condition that he should issue a policy upon the new barn and reinstate the old policy, conditions which were never performed by the agent.</p>

Appeal by the defendant, Charles F. Whitcher, from a judgment of the County Court of St. Lawrence county in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 20th day of February, 1896, upon the decision of the court affirming a judgment rendered by a justice of the peace.

<p>Negligence — of milage trustees in allowing wagons to stand by the side of a street —. they are not objects likely to frighten gentle horses.</p> <p>The action of the authorities of á village, having a population between 4,000 and 4,500, in allowing two lumber wagons to stand in front of a wagon shop, upon the side of a street three rods wide, notwithstanding the fact that there is a by-law of the village under which it could have compelled the removal of the wagons, does not constitute negligence which will make the village liable to one whose horse, while going at a “ stiff gait,” is frightened by coming upon these wagons at night, and -while the street is unlighted, except by lights in the buildings and, to some extent, by the moon.</p> <p>It seems, that ordinary wagons are not objects which have a tendency to frighten gentle and well-trained horses.</p>

<p>Appeal by the plaintiff, Amelia 0. Smaldone, 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 16th day of October, 1896, upon a nonsuit granted by the court, at the close of the plaintiff’s case, after a trial at a Trial Term of the Supreme Court held in and for the county of Saratoga.</p> <p>The action was brought to recover the loss by fire upon a building insured by the defendant. The policy was in form the standard fire insurance policy of the State of New York.</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, J. Francis Murray, an infant, by Catherine C. Murray, his guardian ad litem, 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 5th day of February, 1896, upon a nonsuit granted by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Albany.

<p>An assignment of a bond and mortgage, acknowledged before one of the assignees, is a nullity—its record is invalid — a subsequent assignee bound by the defect—want of possession of the bond and mortgage.</p> <p>An assignment of a bond and mortgage, acknowledged by the holder thereof before one of the assignees, is a nullity; the instrument, although in fact recorded, is not legally entitled to he recorded, and does not constitute constructive notice of its existence, and one, claiming under such assignees, being presumed to have examined the assignment to her assignors, is not a bona fide purchaser as against a person to whom the holder had assigned the same bond and mortgage, for value, by an assignment made prior, but recorded subsequently, to the assignment whose acknowledgment is thus invalid.</p> <p>In such a case the fact that through the fraud of her assignors the holder of the prior assignment has not possession of the bond and mortgage, does not affect the right of the mortgagor to pay to her the amount thereby secured to be paid.</p>

<p>The New York, Lake Erie and Western R. R. Co. must issue mileage hooks — Laws of 1892, chap. 565, § Hi, fixing rates of fare, applies to it — Laws of 1895, chap. 1027, § 1, is valid—it does not apply to interstate commerce.</p> <p>It was the intent of the Legislature to include, within the classifications of section 37 of chapter 565 of the Laws of 1890, as amended by chapter 676 of the Laws of 1892, fixing the rates of fare which may be charged by railway corporations, every railroad corporation of the State of New York, except the New York Central Railroad Company, and this section prescribes the only rule which governs the entire subject.</p> <p>The New York, Lake Erie and Western Railroad Company, as reorganized under chapter 430 of the Laws of 1884, is amenable to the provisions of subdivision 5 of said section 37, providing that “in all other cases (there may he charged) three cents for every such mile or fraction thereof, with a right to a minimum single fare of not less than five cents,” and it is, therefore, subject to the penalty imposed by section 1 of chapter 1027 of the Laws of 1895 upon a “railroad corporation operating a railroad in this State, the line or lines of which are more than one hundred miles in length, and which is authorized by law to charge a maximum fare of more than two cents, and not more than three cents. per mile,” which refuses to “issue mileage books entitling the holder thereof to travel one thousand miles on the line or lines of such railroad,” a service for which the corporation may charge a sum not to exceed two cents per mile.</p> <p>The right given by section 14 of chapter 324 of the Laws of 1832 to the New York and Brie Railroad Company, of which the New York, Lake Erie and Western Railroad Company is the successor, “to fix, regulate and receive the tolls and charges by them to be received for transportation of property or persons,” is not preserved to it by section 181 of chapter 565 of the Laws of 1890, providing that the repeal of a law (specified in the schedule annexed to the act) should not affect or impair any act done or right accruing, accrued or acquired under and by virtue of the law so repealed, as that section was itself repealed by chapter 676 of the Laws of 1892, and the provision on the same subject, section 31 of chapter 677 of the Laws of 1892, known as the Statutory Construction Act, is limited by section 1 of that law, which provides that the act “is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law, indicate that a different meaning or application was intended from that required to be given by this chapter.”</p> <p>Chapter 1027 of the Laws of 1895 does not violate the commerce clause of the Federal Constitution, as to the New York, Lake Erie and Western Railroad Company, although that railroad starts in the State of New Jersey and runs for more than 100 miles in each of the States of New Jersey, Pennsylvania and New York, as the act does not, in terms, interfere with the carriage of passengers outside of the State of New York and may be construed as intended to refer only to such railroads as operate within that State a line or lines more than 100 miles in length, and to limit the use of mileage hooks to such lines; and in this view may he considered as applying solely to commerce within that State.</p> <p>Apart from the question of interstate commerce, the Legislature has power to „ compel a railroad company to issue mileage books, and it seems that the fact that the use of mileage hooks may cause inconvenience to the corporation, while it may present a question for the consideration of the Legislature, does not present one to the courts.</p>

Appeal by the defendants, Winslow M. Bell and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Ulster on the 4th day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of March, 1896, denying the defendants’ motion for a new trial made upon the minutes.

<p>The Commissioners of the Land Office—reference to a committee thereof of cm. application for a grant of lands under water — their exercise of discretionary powers cannot be reviewed — they may disregard their own rules — order in which the parties may be heard — a particular description controls a generad one — ownership of land in Hempstead harbor.</p> <p>Under the provisions of section 9 of chapter 317 of the Laws of 1894, known as the Public Lands Law, giving to the Commissioners of the Land Office power to inquire summarily into the rights of a person who applies for a grant of lands under water, “on such proof as, by regulation, they prescribe,” the commissioners may refer the hearing of an application for such lands to a committee of its members; and, if a majority of the committee is present at the hearing, and all parties are given a full and free hearing, with an opportunity for a further hearing before the commissioners at a regular meeting, especially where an objection taken to the jurisdiction of the committee is not taken on the hearing before the commissioners, the proceedings are regular.</p> <p>It is not material whether the applicants or the remonstrants against the granting of the application are heard first.</p> <p>The general rule relative to conveyances is that, ii there is a particular description and a general one, the particular one must prevail.</p> <p>The question as to whether the town of Oyster Bay owns the land within the limits of Hempstead harbor, considered, and a decision of the Commissioners of the Land Office to the effect that the proof did not establish such ownership, sustained. Presumptively the lands under tidewater belong to the State. The Commissioners of the Land Office arc given discretionary powers in making grants of land under water, and their determination in the exercise of such discretion is not reviewable.</p> <p>The commissioners may waive or modify their own rules, and may, on an application for a grant, accept the affidavit of one of the assessors of a town, although their rules require that the affidavit should he made by two assessors.</p>

<p>Appeal by the defendants, The Board of Health of the City of Troy and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 25th day of August, 1896, granting a peremptory writ of mandamus requiring the defendants to reinstate the plaintiff in the position of registrar of vital statistics to the board of health of the city of Troy.</p>

<p>Appeal by the plaintiff, Catharine Foley, from so much of- a judgment of the Supreme Court in favor of the defendant, John Foley, entered in the office of the clerk of the county of Warren on the 25th day of September, 1896, upon the decision of the court rendered after a trial at the St. Lawrence Special Term, as awards the said defendant, John Foley, damages for repairs, improvements and taxes, and awards the defendant interest upon such repairs, improvements and taxes, and interest upon the interest which said defendant paid for plaintiff, and denies costs to the plaintiff; also from an order made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Warren on the 6th day of ISTovember, 1896, denying the plaintiff’s motion to amend said judgment, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in the Warren county clerk’s office on the 26th day of December, 1895.</p> <p>This action was brought to set aside an absolute conveyance of premises, executed by the plaintiff to the defendant, who is her son, upon the 17th day of October, 1892.</p> <p>The plaintiff claims that she intended, upon that day, to execute to the defendant a mortgage to secure him for certain moneys advanced by him to pay interest for her; and that he, instead of a mortgage, fraudulently procured to be drawn up and executed by her the absolute conveyance in question.</p> <p>The defendant answered, conceding that he held the premises and claimed to own them absolutely under the deed in question, and denying all the other averments of the complaint. Upon the trial at Special Term the court found the facts as follows: That on the 17tli day of October, 1892, it was agreed between the plaintiff and the defendant that she should give to him security upon the premises described in the deed for the amount of interest money that he had, at her request, paid upon three certain mortgages then existing against the premises, and also to secure him for any interest money which he might thereafter pay thereon; that the deed was executed by the plaintiff in pursuance of such agreement, she at the time supposing it to be a mortgage or a security for the moneys so paid or to be paid for her; that the plaintiff did not know at the time she executed the deed that it was an absolute deed conveying the title to said premises, but supposed that it was a mortgage; that the same was so executed by her and received by the defendant by a mistake of fact; that both parties intended that such deed should be a security to the defendant for the interest money which lie had or might thereafter pay upon the aforesaid mortgages.</p> <p>As conclusions of law, the court found that the deed so executed was a mortgage to secure to the defendant all sums of money so paid and to be paid by him. The decision also directed that an order of reference be granted to ascertain and report the. amount which the defendant had paid as interest upon such mortgages, .prior to and since October 17, 1892, “ and for repairs, improvements and taxes; and also to ascertain and report the amount of payments, if any, and offsets thereto which the plaintiff may have against the defendant, John Foley, for use and occupation of said premises or any part thereof.”</p> <p>The decision also further directed that an interlocutory judgment be entered accordingly, “ with the costs of this action.”</p> <p>An interlocutory judgment was entered accordingly, wherein a referee was appointed to take the proofs therein provided for. Such referee took proof of the amount advanced by the defendant for interest and ascertained it to be $456.54. He also ascertained the amount paid by defendant for repairs and improvements to the premises to be the sum of $443. Such payments for both interest and.for repairs and improvements were made at different dates and in different amounts, and the referee allowed interest upon each amount from the date it was advanced to the date of the judgment entered upon his report. He also found that the defendant had had the use and occupation of a portion of the premises for a period of twenty-two months, and that a reasonable compensation therefor was the sum of $152. Upon this report, an application was made at á Special Term held by the same justice before whom the action was tried, for final judgment, and judgment was thereupon ordered by him fixing the amount which the defendant had advanced for the payment of interest upon the mortgages referred to in the decision, with interest upon such payments at the sum of $644.23 ; also, fixing the amount paid by defendant for repairs and improvements, together with interest thereon, at the sum of $501.74; also, fixing the amount chargeable against the defendant for use and occupation of the premises, together with the interest thereon, at the sum of $162.12; also, adjudging that the just and proper amount which the defendant was entitled to receive from the plaintiff for the redemption of the premises was the sum of $983.85, with interest thereon from the date of the decree.</p> <p>It further adjudged that, upon the payment of such sum by the plaintiff to the defendant, within ninety days from the date of the decree, the defendant should convey to the plaintiff the premises in question, and further providing that, in default of such payment within the ninety days aforesaid, the plaintiff be “ forever barred of and from all equity of redemption in said premises * * * and on and from all right, title, interest, claim or demand in law or equity in, of and to said premises and every part thereof.”</p> <p>Such judgment also further decreed that no costs of this action be allowed to either party as against the other.</p> <p>Upon the entry of such judgment, the plaintiff’s attorney made application to said justice at a Special Term for an order amending and correcting such judgment in the following particulars: By striking out the provision that no costs be allowed to either party and by inserting in lieu thereof proper provisions for allowing costs to the plaintiff and against the defendant. Also, by disallowing interest on the sums advanced by defendant to pay interest and fixing the amount thereof at $456.54 instead of $644.23. Also, by striking out of said judgment the amount awarded to defendant for repairs and improvements upon the premises, and for interest upon the amount so advanced. Also, changing the amount adjudged to be due from the plaintiff to the defendant to the sum of $296.42 instead of the sum oi $983.85. Also, striking out from such judgment the provisions for a conveyance of said premises to the plaintiff and for the foreclosing of the plaintiff’s interest therein. And also, asking that the interlocutory and final judgments be made to conform to the decision of the court.</p> <p>This application was denied at Special Term, and from the order there entered an appeal has been taken to this court.</p> <p>The plaintiff also appealed to this court from that part of the judgment which awarded to the defendant “ damages for repairs, improvements and taxes; ” and also from that part which awarded interest upon such repairs, improvements and taxes, and interest upon the interest which the defendant paid for the plaintiff ; also, from that part of the judgment which denied costs to the plaintiff.</p> <p>The notice also states that upon the appeal plaintiff will review the interlocutory judgment granted in the action.</p>

Appeal by Catharine Ann Cornell and another from the following portions of a decree of the Surrogate’s Court of the county of Ulster,, entered in said Surrogate’s Court on the 8th day of September, 1896: From the said decree in so far as the same overrules the objections to the said accounts filed by the said Catharine Ann Cornell and Nellie L. Carpenter.

<p>Appeal by the defendant, Martin R. Sackett, as treasurer of the county of St. Lawrence, from au order of the Supreme Court, made at the St. Lawrence Special Term and entered in the.office of the clerk of the county of St. Lawrence on the llth day of June, 1896, reversing the decision of the county treasurer of St. Lawrence county, refusing to issue a tax certificate to the relator, and directing that such certificate, issue.</p> <p>The order was made in a proceeding upon certiorari under section 28 of chapter 112 of the Laws of 1896, commonly known as the Liquor Tax Law.</p>

Appeal by the defendant, Julius W. Walter, from a judgment of the County Court of Broome county in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 26th day of March, 1896, as modified by an order entered in said clerk’s office on the 23d day of April, 1896, affirming a judgment in favor of the plaintiff rendered by a justice of the peace.

Appeal by the plaintiff, George A. Waldorf, from a judgment of the County Court of Sullivan county in favor of the defendants, entered in the office of the clerk of the county of Sullivan on the 21st day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of January, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ignatz Boskowitz, as trustee for The Mechanics and Traders’ Bank, 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 December, 1896, denying his motion to require the respondent, a purchaser at a sale under the judgment of foreclosure in the action, to complete his purchase and relieving him therefrom.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the defendant, Edward Gustaveson, entered in the office of the clerk of the county of New York on the 5th day of May, 1896, upon the decision of the court rendered :after a trial at the New York Special Term.

<p>Appeal by the defendants, Archer Y. Pancoast and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of November, 1896, upon the verdict of a jury rendered by direction of the court.</p>

<p>An action against a city, brought by a husband Rr the loss of his wife’s services—it is one "for damages for personal injuries, within Laws 1886, chap. 572, § 1 — it must be brought within a year, and notice of an intention to sue must be given.</p> <p>An action, brought by a husband .to recover for the loss of his wife’s services, Occasioned by injuries alleged to have been caused by the negligence of the city of New York, and also to recover for expenses which have been incurred by reason of such injuries, is an action which comes within the provisions of section 1 of chapter 572 of the Laws of 1886, providing that an action shall hot be maintained against a city “ for damages for personal injuries ” unless it is commenced within a year after the cause of action accrued, and unless notice of an intention to commence the action, and of the time and place at Which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after the cause of action shall have accrued.</p>

Appeal by the plaintiff, Giacomino Vitto, from an order of the Court of Common Pleas for the city and county of Hew York, entered in the office of the clerk of said court on the 30th day of December, 1895, granting a new trial upon the minutes of the court after a trial before the court and a jury and a verdict rendered for the plaintiff.

<p>Appeal by the defendants, The Yew York Elevated Railroad Company and another, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 19th day of January, 1897, denying their motion for a stay of proceedings pending an appeal to the Court of Appeals.</p>

<p>Fraudulent conveyance by a corporation — set aside to enable a levy to be made under an execution.</p> <p>A judgment creditor of a corporation may bring an action in equity, before the return of executions, issued upon judgments recovered against the corporation, based upon the liens thereby secured upon the property of the corporation, to set aside an alleged fraudulent general assignment, and a chattel mortgage, and transfers of personal property, made in fraud of creditors, both before and after the general assignment.</p> <p>He is not entitled, however,' to the appointment of a receiver, and the relief granted must be limited to a judgment setting aside the assignment, mortgage and transfers only as to the plaintiff, and only so far as they relate to or affect the specific property upon which his executions were liens when he commenced his action, as his action is not one brought, after an execution has been returned unsatisfied, to sequestrate the property of the corporation, under section 1784 of the Code of Civil Procedure, a proceeding in which a receiver may be appointed, but in which all the creditors of the insolvent corporation are entitled to come in and share equally in the distribution of its assets.</p>

Appeal by the plaintiff, William Broadbelt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 2d day of July, 1896, upon the decision of the court rendered after a trial at the Mew York Special Term.

Appeal by the defendant, the Union Dime Savings Institution, 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 July, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Henry Hentz, 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 January, 1897, denying his motion for leave to serve an amended complaint.

Appeal by the defendant, Alfred Carr, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ETew York on the 8th day of May, 1896, upon the decision of the court rendered after a trial at the ETew York Special Term overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the defendant, The Richmond Railway and Electric 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 9th day of November, 1896, upon the verdict of a jury rendered by direction of the court.

Motion by the defendants, Marcus T. Ward and another, 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 directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York on the 27th day of November, 1896.

<p> Discharge of a patrolman —found sitting down on a box, with a pail of beer near him. </p> <p>A member oí the police force of Mew York city was found by an inspector, during his tour of patrol duty, sitting on a box on a dock, which was within his beat, with a pail of beer beside him, in company with another patrolman, who was eating oysters.</p> <p>The policeman testified that he sat down because he felt the effects of a wound received in the discharge of his duty. There was no evidence that he sat there for any length of time or drank the beer.</p> <p>Held, that such facts did not justify a finding of neglect of duty or his removal from the force.</p>

Appeal by the defendants, Herbert Booth King 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 21st day of January, 1897, denying their motion to open their default and for leave to interpose a proposed answer.

<p>A debtor may pay one bona fide creditor to the exclusion of others — specific denial of a numbered paragraph.</p> <p>A creditor has a right to transfer to any particular debtor property sufficient to pay his debt, although he thereby puts it out of his power to pay his other creditors, and as long as his object is simply to pay a bona fide debt and that is the only result accomplished, the transaction is not fraudulent as to other creditors.</p> <p>A statement in an answer specifically denying a particular numbered paragraph of the complaint, is a good denial of that paragraph, and the mere fact that the answer, after specifying the number of the paragraph which it is intended to deny, repeats the allegations of the paragraph, does not make it any the less a denial of the allegations contained therein.</p>

<p>Negligence — action of a motorman in a position of peril — error of judgment.</p> <p>In an action in which negligence was charged against a street railroad corporation, it appeared that all of a group of children who attempted to cross the tracks of an electric street railroad in front of an approaching motor car, succeeded in doing so in safety, except one, whose foot became caught between the rail and a plank so that she was unable to move ; that as soon as it became apparent that the child was in danger, the motorman applied the brake, and succeeded in stopping the car before the wheels had passed over the child, hut not before the car had struck her.</p> <p>Held, that it did not appear that the railroad company was guilty of negligence ; That the mere fact that there was another appliance upon the car, by the use of which, if it was not rendered useless by reason of its sudden application (which was not improbable) the motorman might have stopped the car quicker than with the brake, did not alter the case;</p> <p>That the motorman’s position being one of peril, if he in good faith considered the use of the brake safer than the use of the other appliance, his error, ’if any, was one of judgment for which the railroad company was not liable.</p>

Appeal by the plaintiffs, Thomas P. Fitzsimons 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 Few York on the 18th day of January, 1897, canceling a notice of the the pendency of the action.

Appeal by the defendants, Frank Balken and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of January, 1897, upon the decision of the court rendered after a trial At the New York Special Term in an action brought for the foreclosure of a mortgage.

Appeal by the plaintiff, The Barber Asphalt Paving 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 20th day of November, 1896, upon the dismissal of its complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York.

Appeal by the plaintiff, John McKinney, from a judgment of the Supreme Court in favor of the defendant George Green, entered in the office of the clerk of the county of New York on the 31st day of December, 1896, and from a judgment in favor of the defendant Jacob Ruppert, entered in said clerk’s office on the 6tli day of January, 1897, upon the report of a referee dismissing his complaint as against the defendants George Green, Jacob Ruppert and George J. Kraus.

Appeal by the plaintiff, Morris J. Davidow, 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 November, 1896, requiring him to furnish a bill of particulars.

<p>Street railroad — evidence sufficient to sustain a verdict of negligence.</p> <p>In an action Drought against a street railway company to recover damages for injuries sustained by the plaintiff, there was evidence to show that the plaintiff, while attempting to cross a street on or near the crosswalk, in the early evening before dark, after having passed the first of two street railway tracks in safety, and having waited between them for two cars to pass upon the second track, stepped upon that track on which she saw a car approaching, and, just as she had gotten over the last rail, was struck by the car, which gave no signal of its approach, and the speed of which, according to the plaintiff’s testimony and that of other witnesses, was accelerated as it neared the crosswalk. In consequence of the short intervals at which the cars followed each other upon the street in question, there being about two on each block, it was necessaiy for a person attempting to cross the track to pass somewhat closely in front of a street car.</p> <p>Held, that the evidence was sufficient to sustain a verdict of negligence on the part of the defendant.</p> <p>Patterson and Ingraham, JJ., dissented.</p>

Appeal by the petitioners, Daniel Lenobel and Jacob Cohen, 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 13th day of November, 1896, reversing an order of the.

<p>Municipal corporation — action against, for personal injuries — the filing of a notice of intent to sue is a condition precedent— the fact of such filing must he alleged — liability of a city for the negligence of an independent contractor —proximate cause.</p> <p>The filing of a notice of an intention to sue, as prescribed by chapter 572 of the Laws of 1886, is a condition precedent to the existence of a cause of action for personal injuries against the municipalities specified in that act; the fact of such filing must be alleged in the complaint in an action brought to recover damages for personal injuries sustained by reason of the negligence of such a defendant, and unless it is alleged the complaint is defective and demurrable.</p> <p>The complaint in an action brought against the city of New York to recover damages for personal injuries, alleged that, in making a contract for the grading, and improvement in other respects, of a street, the officials of the defendant failed to provide in the contract that the contractor should care for and remove all surface water, sewage and drainage which would be necessarily interfered with, impeded and backed up hy reason of the grading of the street; and that the injuries complained of were caused hy reason of the neglect of the contractor to care for and remove such surface water, sewage and drainage.</p> <p>Held, that the law did not require the defendant to insert in the contract any affirmative provision against the contractor’s being negligent, as it was necessarily implied in the contract that the work should be done in a careful, prudent and lawful manner;</p> <p>That the proximate cause of the injuries being the neglect of the contractor, he alone was liable, and not the city, unless it appeared that there was some neglect of duty on the part of the city which could be said to be the origin of the contractor’s neglect;</p> <p>That, as the complaint failed to allege such neglect of duty, it was demurrable. Seinble, that in such case a city is only liable for injuries occasioned by the negligence of the contractor in doing the work, when the work to he done is such as to be attended with danger, however skillfully it may be done, or where the city has retained control over the manner of doing it.</p> <p>In an action for personal injuries the law looks to tjie proximate cause of the in j ury complained of, and if that proximate cause is the result of the action of some independent person, the law looks no further to find a responsible agent who must answer for the injuries so caused.</p>

<p>Appeal by the plaintiffs, William W. Sharp 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 17tli day of February, 1897, granting the defendants’ motion to strike out the complaint herein upon the ground that it did not conform to the summons and notice.</p>

Appeal by the New York Life Insurance and Trust Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of January, 1897, denying its application for an order that the warrant of attachment issued by it should be levied on the property of the firm of S. F. Myers & Co., now in the hands of a receiver.

Appeal by the plaintiff, James E. Walker, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 25th day of Hay, 1896, upon the decision of the court rendered after a trial' at the Hew York Special Term.

Appeal by the defendants, Bertha A. Deane and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of August, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Equity—jurisdiction to prevent a devastavit.</p> <p>A complaint in an equitable action alleged, among other things, that one José Fernandez, residing in Cuba, an executor of an estate in which the plaintiffs were interested as remindermen, and of which the'greater part was invested in a mortgage upon a plantation in Cuba, had refused to join with his co-executor, also a Cuban, in an action to foreclose the mortgage then past due, and that in consequence of his refusal such foreclosure action was, under the Spanish law, impossible ; that subsequently said José Fernandez, in consideration of a gross sum to be paid annually in lieu of interest, had entered into an agreement with the owner of the plantation for the extension of the payment of the mortgage for a period which was practically indefinite, the agreement making no provision for a guaranty of the amount of the mortgage on the part of the mortgagor, but releasing him from liability in case the improvements on the plantation were destroyed.</p> <p>The complaint further alleged that the agreement was fraudulent and was executed for the personal advantage of José Fernandez, and that, as the plantation was in a country now in insurrection, it was liable to be laid waste and the plaintiffs' interest therein destroyed, and that they had no adequate remedy at law.</p> <p>A demurrer was interposed by the defendant, José Fernandez, upon the ground, among other things, that a cause of action for an account as to the property in the hands of the executors was improperly joined with a cause of action requiring the executors to furnish a bond for the safekeeping of the property intrusted to them, and with one making the demurring defendant liable for any loss occasioned by him to the estate; and that an alleged cause of action against the demurring defendant and the owner of the estate to cancel the extension of the mortgage and to enjoin them from endangering the estate to the injury of the plaintiffs was improperly joined with others.</p> <p>Held, that the demurrer could not be sustained; that the real purpose of the action was to invoke the power of a court of equity to interfere for the protection of the plaintiffs, and to prevent the executor and a debtor of the estate, alleged to be in collusion with him, from despoiling the estate;</p> <p>That the complaint stated but a single cause of action, namely, the protection and preservation of the property in which the plaintiffs were interested as remaindermen, and that it was properly within the jurisdiction of the court, as a court of equity, to protect the beneficiaries of a trust against persons wrongfully and fraudulently dealing with the trust estate.</p>

<p>Appeal by the plaintiff, the National Union Bank, from an interlocutory judgment of the Supreme Court in favor of the defendants Herman G. Kleinwort and Alexander D. Kleinwort, entered in the office of the clerk of the county of New York on the 21st day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term sustaining the demurrer of said defendants to the complaint.</p>

<p>Corporation—action by a stockholder of a corporation to compel its trmtees to account to it — a liberal rule applied in deciding what allegations are material.</p> <p>In an equitable action by a stockholder of a corporation to require the officers or trustees of the corporation to account to it for a breach of their trust, allegations as to the dealing of such officers or trustees with the corporate property are material and proper allegations in the complaint; and, in view of the difficulty under which the plaintiff in such an action labors in obtaining knowledge of the facts in relation to the management of the affairs of the corporation by its officers, where such officers have control and where they are, if false to their trust, interested in concealing the transactions, the court should, before striking out any allegation as to the relations of the officers or trustees of the corporation to it, be careful to see that the allegation cannot be material.</p>

Appeal by the defendant, the Evansville and Terre Haute Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling its demurrer to the complaint.

Appeal by the plaintiff, Jacob Feist, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 29th day of January, 1897, vacating a judgment in favor of the plaintiff entered in said clerk’s office on the 21st day of December, 1896. In this action the summons was dated Yovember 28,1896, and the complaint was verified on the same day.

<p>Principal and surety — the surety may recoup damages sustained by his principal.</p> <p>A surety who has signed, in form as a joint maker with his principal, a note given in payment for chattels is entitled in an action against him thereon to recoup the damages sustained by his principal because of a breach of the warranty under which the chattels were sold.</p>

<p>Bailment — a contract to deliver produce, to be manufactured and sold by another, creates a bailment.</p> <p>Under a contract providing that “the manufacture and sale of all the products of the Long Island Farmers’ Co. shall be done by J. A. Meierdieroks & Sons,” a corporation made up of farmers agreed to deliver, to a firm at a factory previously owned or controlled by the farmers, certain vegetables at specified prices, each farmer to receive, in addition to the specified prices, twenty per cent pro rata according to the produce delivered by him, the manufacture and sale of all produce to be made by the firm, which was to furnish all labor, machinery, etc., the expense of which was to come out of the gross receipts of sales —the contract providing that, if at any time the business of the corporation should cease and the property, including buildings, utensils, etc., should be sold, the corporation guaranteed to the firm thirty-five per cent of the amount realized.</p> <p>The bills of sale by which the product was sold read, one “ J. A. Meierdieroks & Sons * * * agts. Long Island Farmers’ Oo.” and the other “Bought of the Long Island Farmers’ Oo., J. A. Meierdieroks & Sons, Agents,” and the checks therefor were made payable to the company, which refused to give the firm power to indorse them.</p> <p>Held, that the contract was one of bailment and not one of sale;</p> <p>That the title to the produce delivered to the firm remained in the farmers, or in the corporation through which the business was transacted.</p>

<p>Appeal by the relator, William Grady, 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 21st day of October, 1896, denying his motion for a peremptory writ of mandamus, and dismissing an alternative writ theretofore granted,</p>

Appeal by the defendants, James J. Treanor and others, commissioners appointed to lay out and continue Warburton avenue, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 31st day of October, 1896, directing the issuance of a peremptory writ of mandamus to compel them to pay to the plaintiff $15,886 under a contract made between the respondents and appellants in the month…

Appeal by the defendant, The United States Industrial Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of October, 1896, upon the verdict of a jury rendered by direction of the court in an action brought to Tecover upon a policy of life insurance.

<p>Taxpayer’s suit — extra allowance, when excessive.</p> <p>An action by a taxpayer stands in the same position before the court as any other suit.</p> <p>An extra allowance of §2,000 in an action in which only three witnesses were examined, and the trial of which did not occupy an unusual time, although the circumstances constituted a “difficult and extraordinary case,” the court considered should be reduced to §500.</p>

Appeal by the defendant, Isaiah Frazier, 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 16th day of May, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term in an action for the foreclosure of a mechanic’s lien.

<p> Corporate notes, issued in contemplation of insolvency, how avoided—evidence of authority to make a corporate note. </p> <p>The fact that certain promissory notes given by a defendant corporation were executed by it in contemplation of insolvency and with an intent to prefer the payment of a debt due from it to its officers, is no defense in an action brought by the holder of the notes to enforce the maker’s liability thereon. Relief against such a preference must be had either by a motion or by an action brought by the receiver of the corporation to set aside the lien of the judgment or of the execution issued thereon.</p> <p>Proof that a promissory note purporting to be made by a corporation was signed by its president and secretary, does not show that it was the note of the corporation, or prove that it was made by its authority.</p> <p>The by-laws of a corporation, containing a provision that the treasurer may incur indebtedness in the regular course of business for supplies and merchandise to a limited amount, do not authorize that officer to issue promissory notes for such indebtedness, and in order to establish the liability of the corporation upon notes so given, it is necessary to show either acquiescence or ratification by the trustees of the power assumed by the treasurer to issue them, or such a course of dealing hv that officer, and such negligence on the part of the trustees, as would estop the corporation from denying the treasurer's authority. Evidence that the only benefit derived by the corporation from the notes in suit was the satisfaction and discharge of similar obligations of the corporation to other parties, as it is insufficient to show any liability of the defendant on the notes retired, does not prove that the corporation received any benefit from the notes issued to retire them.</p>

Appeal by the defendants, Charles M. Dennison and others, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 23d day of February, 1897, and entered in the office of the clerk of the county of Kings, restraining the defendants from using the firm name of Dennison & Brown, or the name of Brown during the pendency of the action.

Cross-appeals by the petitioner and respondents from portions of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 19th day of February, 1897, setting aside the election of directors of the Rapid Transit Ferry Company held in the year 1896, and denying an application to set aside the election of said directors held in the year 1895, and also an appeal by the respondents from an order…

<p>Appeal by the defendants, The Metropolitan Elevated Railway 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 New York on the 3d day of June, 1896, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>This appeal was transferred from the first department to the Second department.</p>

Appeal by the defendant, Livingston Disbrow, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of June, 1896, upon the verdict of a jury, and also from an order bearing date the 16th day of June, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mary L. Engelbrecht, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 4th day of September, 1895, directing the issuance of a writ of prohibition restraining the acting surrogate of Richmond county from taking any proceedings or issuing any order removing the relators from their office as administrators of David H. Journeay, deceased.

Cross-appeals by Abigail Journeay, individually, and Edward Sprague and Abigail Sprague, as administrators, etc., of David H. Journeay, deceased, and also by Mary L. Engelbrecht, from a decree of the Surrogate’s Court of the county of Richmond, entered in said Surrogate’s Court on the 17th day of August, 1895, upon the decision of the acting surrogate of said county in the proceedings instituted by Mary L. Engelbrecht to compel an accounting of the administrators of the…

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. This case was transferred from the first department to the second department.

Appeal by the defendant, Lavinia A. Du Bois, 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 June, 1896, upon the decision of the court rendered after a trial at the New York Special Term. This appeal was transferred from the first department to the second department.

<p>Negligence—horse car driver whipping up the horses just before reaching a crossing — contributory negligence for the jury.</p> <p>The act of the driver of a street car in accelerating the speed of his car by whipping up the horses attached thereto just as it is approaching a crosswalk, as a result of which a person upon such crosswalk is injured, constitutes negligence on the part of the street railway corporation.</p> <p>Where the person thus injured is a boy nine years of age, admitted to be sui juris, who, just at dusk, when the car is at a distance of sixty-five feet from him, starts from the curb towards the track, a distance of about twenty-four feet, and is struck by the horses and injured, the question whether the act of the boy, in continuing on his way when the situation has been suddenly changed by the act of the car driver in whipping up the horses, is negligent, should be submitted to the jury.</p>

Appeal by the plaintiff, John 0. Rodgers, 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 16th day of May, 1896, upon the report of a referee. This appeal was transferred from the first department to the second department.

Appeal by Mary L. Engelbrecht, one of the heirs at law and next of kin of Abigail Journeay, deceased, from a decree of the Surrogate’s Court of the county of Richmond, entered in said Surrogate’s Court on the 19th day of May, 1896, upon the decision of the district attorney of Richmond county, acting as surrogate, owing to the disqualification of the surrogate of said county, admitting to probate papers propounded as the last will and testament and codicils of Abigail…

Appeal by I. Howard Hindi from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of March, 1897, directing that he be committed to the county jail of Westchester county until he deliver the books and papers belonging or appertaining to the office of the commissioner of jurors in Westchester county to John Sells, who, according to the finding of the justice presiding at such…

Appeal by the defendant, Roman Arnold, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8tli day of July, 1896, upon the verdict of a jury, as awards damages in favor of the plaintiff against him for $415.12 and $156.86 costs, and also from an order entered in said clerk’s office on the 13th day of July, 1896, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Robert Boyd, from a judgment of the Supreme Court in favor of the plaintiffs for $3,009.03, entered in the office of the clerk of the county of New York on the 13th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes. This appeal was transferred from the first department to the second department.

Appeal by the defendant, The City of Poughkeepsie, 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 19th day of November, 1896, upon the verdict of a jury, and also, from an order entered in said clerk’s office on the 27th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, B. G. Neff and others, constituting the board of assessors of the city of Brooklyn, from so much of an order or judgment 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 21st day of November, 1896, as orders, adjudges and decrees that the assessment of personal property of the relator at $340,442, is illegal and erroneous, by reason of overvaluation; that the relator has…

Appeal by the defendants, Elijah B. Kennedy and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of February, 1897, granting an injunction restraining the defendants from interfering with the construction of the plaintiffs railroad upon Fifth avenue, between Denyse street and the old Shore Boad, in the city of Brooklyn.

Appeal by the relator, James McCloskey, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of February, 1897, denying his application for a writ of mandamus commanding Theodore B. Willis, the commissioner of city works of the city of Brooklyn, to reinstate him in the position theretofore held by him as foreman of the bureau of street construction and maintenance in such…

Appeal by the defendant, James Weeks, 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 July, 1896, upon the report of a referee. This appeal was transferred from the first department to the second department.

Appeal by the plaintiff, James Y. Cummings, from a judgment of the Supreme Court in favor of the defendant, the Union Blue Stone Company, entered in the office of the clerk of the county of New York on the 8th day of May, 1896, and from a judgment in favor of the defendants Elizabeth' Sweeney and James J. Sweeney, surviving members of the firm of E. Sweeney & Sons, entered in said clerk’s office on the 3d day of June, 1896, upon the verdict of a jury rendered by direction of…

Appeal by the plaintiffs, Morris Arnold and another, comprising the firm of M. Arnold & Co., 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 23d day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of March, 1896, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Arthur W. Palmer, an infant, by Frederick A. Reid, his guardian ad litem, and by the defendants Annette Huldah Pennoyer and Margaret L. Palmer, 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 28th day of May, 1896, confirming the report of a referee as to the amounts to which Hoyes F. Palmer and the defendants, respondents, were entitled hy virtue of their…

Appeal by the defendant, Isaac White, from a judgment of the Court of Common Pleas in and for the city and county of Hew Y orle in favor of the plaintiff, entered in the office of the clerk of said court on the 25th day of Hovember, 1895, upon the report of a referee in a suit to foreclose a mechanic’s lien. This appeal was transferred from the first department to the second department.

Appeal by the defendant, Edward Hunter, 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 25th day of September, 1896, upon the verdict of a jury rendered by direction of the court upon a motion made by the plaintiffs for judgment on the pleadings. This appeal was transferred from the first department to the second department.

Appeal by the defendant, Daniel Woodcock, as general manager and as attorney in fact of the Insurers’ Alliance 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 Orange on the 16th day of July, 1896, upon the decision of the court rendered after a trial at a Trial Term thereof before the court without a jury.