Volume 150 — New York Appellate Division Reports

Appeal by the defendant, The Mathews Slate 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 5th day of October, 1910, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 4th day of' October, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the relators, Mary G-. Staples 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 Albany on the 11th day of September, 1911, denying the relators’ application for a writ of mandamus.</p> <p>The petition of relators shows that they are the owners of certain property in the annexed district of the city of New York, formerly in the town of Westchester, Westchester county, known and described as follows: “ All that certain lot, piece or parcel of land situate, lying and being in the Borough of the Bronx, City, County and State of New York, known as Lot No. 66 on certain map entitled ‘Map of Unionport,’ made by Bonnet & Sayery, Civil Engineers, dated November 1, 1852, and filed in the office of the Register of Westchester County, August 23rd, 1854, as Map No. 29.” That in 1859 the then Comptroller attempted to sell said property for unpaid taxes for the year 1855, and that in 1862 the Comptroller executed and delivered to a certain party a deed purporting to convey the following premises: “The following tract, piece or parcel of land situated in the County of Westchester, viz.: One-fourth of an acre of land to be laid out at the expense of the party df the second part, being lot No. 66 in the Village of Unionport, which said described piece or parcel of land was sold by the said Comptroller at the said sale under and by virtue of the said act. ” Said deed was recorded in Westchester county in 1863. Relators claim that said sale and deed are void on account of the land being imperfectly described in the assessment rolls for the year 1855, and also for the reason that the description of the premises in the deed is indefinite, insufficient and does not identify any ascertainable plot of ground, although it constitutes a cloud upon their title. ' Relators further state that they have offered the present Comptroller an amount in excess of said amount for which said premises were sold with interest and have requested him to cancel said sale and deed. The application of relators was without notice and the Comptroller submitted no affidavits in opposition.</p>

<p>Election Law — designation of candidate for State committeeman —- judicial review — Election Law, section 56, construed—jurisdiction — appointment of senatorial committee.</p> <p>Upon February 16, 1913, the Democratic State committee for the thirty-third senatorial district provided, pursuant to section 55 of the Election Law, as amended by chapter 4 of the Laws of 1913, that, there being no senatorial committee, the State committeeman should be elected by representatives selected by each of the county committees, and on the 5th day of March, 1913, the designation of John Anderson, Jr., was filed with the Secretary of State. Thereafter, upon the same day, the designation of John B. Trombley was filed, purporting to have been made by the members of a senatorial committee regularly appointed at the senatorial convention held in 1910. The Secretary of State gave notice that, as the nomination of John Anderson, Jr., had been first filed, he would place his name upon the primary ballot. Upon a proceeding under section 56 of the Election Law to review the determination of the Secretary of State and the validity of the designation of a State committeeman,</p> <p>Held, that the right of review given by said section is summary and the section should not be so construed as to render it ineffectual;</p> <p>That since all the parties interested reside in the fourth judicial district and all the transactions out of which the controversy arises have taken place therein, a judge in such district has jurisdiction, although the-action of the Secretary of State is claimed to have occurred in the third judicial district;</p> <p>That, upon the affidavits, and after an examination of the opinion of the court pursuant to rule 3 of the General Rules of Practice, a senatorial committee was regularly appointed in 1910 and hence the designation of John B. Trombley should be approved.</p> <p>Kellogg and Houghton, JJ., dissented; the latter in memorandum.</p>

<p>Tax—special franchise—certiorari—burden of proof—valuation of special franchise — net earnings rule — equalizing assessments.</p> <p>Certiorari to review the assessment of a special franchise tax upon relator’s railroad running through Park avenue in the city of Hew York. Statutes, conveyances and evidence examined, and held, that relator’s lessor did not have a right of way through Park avenue prior to the use or opening of such avenue as a public street so as to exempt it from assessment;</p> <p>That the Legislature permitted the relator to occupy the avenue with the consent of the city, and that its rights therein are taxable as a special franchise.</p> <p>The burden rests upon the relator to show satisfactorily that a wrong system of computing the value of the intangible part of a special franchise has been adopted, or that a proper system has been erroneously applied.</p> <p>There is no hard and fast rule by which the value of every special franchise may be determined. The assessors are to ascertain the real value and may avail themselves of all tests within them reach and all information which in their judgment bears upon the value. The net earnings rule, in ordinary cases, may be considered the best method.</p> <p>In the absence of a finding to the contrary, it must be assumed that the relator’s property has been assessed at its actual value and the court should equalize the assessment with that of other property when such other property is not assessed at its full value.</p>

<p>Sale — payment — delivery—waiver of payment on delivery — conversion.</p> <p>Where property is sold and no time of payment is agreed upon, payment and delivery are to take-place at substantially the same time; the vendor need not part with his property until the purchase price is arranged.</p> <p>Defendant sold his wool to N. & Co. to be paid for when delivered on the cars at O. At the request of NT. and H., to whom N. had sold the wool, the railroad company, with the knowledge and consent of the defendant, delivered bills of lading tó N., although some of the wool still remained at defendant’s barn. Defendant received from N. the greater part of the purchase price but refused to complete the delivery or to let the cars go forward until the whole purchase price was paid. Subsequently the defendant, after removing from the car the part of the wool which had not been paid for, consented that the cars go forward. In an action by . the assignee of H. to recover against the defendant for the conversion of the wool removed from the car, evidence examined and</p> <p>Held, that H. was chargeable with knowledge that payment of the purchase price was to precede delivery of the wpol and that defendant, not having waived his right to hold the wool for the purchase price, is not liable for conversion in removing the part of the wool which had not been paid for.</p> <p>Smith, P. J., dissented, with opinion.</p>

Appeal by The People of the State of Hew York from an order of the Surrogate’s Court of the county of Albany, entered in the said Surrogate’s Court on the 28 th day of Hovember, 1911, denying a motion to reopen a final decree, and to vacate and modify said decree.

Appeal by the defendants, John H. Kingsbury and others, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Clinton on the 1st day of November, 1911, permitting the plaintiff to serve a supplemental complaint.

Appeal by the defendant, Arthur E. Lamarohe,' from a judgment of the County Court of Clinton county in favor of the plaintiff, entered in the office of the cleric of said county on the 11th day of March, 1911, upon the report of a.referee. Patrick J. Tierney, for the appellant.

' Appeal by the defendants, William B. Harrison and others, constituting the board of water commissioners, etc., from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of .the county of Ulster on the 11th day of March, 1912, denying a motion to dissolve a temporary injunction.

Appeal .by the plaintiff, Solomon W. Russell, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 25th day of November, 1911, upon the decision of the court rendered after a trial at the Warren Special Term sustaining the defendant’s demurrer to the complaint.

<p>Corporation — action to enforce liability of resident stockholders of foreign corporation — defense — Statute of Limitations — appeal.</p> <p>In an action, maintained in this State as a matter of comity, to enforce the liability of resident stockholders of an Ohio corporation, which has been dissolved pursuant to the laws of Ohio, a provision of the Ohio statutes, that an action upon the liability of a stockholder can only be brought within eighteen months after the debt or obligation shall become enforcible against stockholders, is available as a defense under section 390a of the Code of Civil Procedure.</p> <p>Where the trial has proceeded upon the theory that such a defense was before the court, it cannot be claimed upon appeal that it was not fairly within the pleadings.</p>

<p>Appeal by the plaintiff, , Grace P. Staley, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Fulton on the 19th day of June, 1911, Upon the decision of the court rendered after a trial before the court without a jury at the Montgomery Trial Term.</p>

Appeals by the defendants, Emma A. Robinson, as trustee, etc., James M. Falsey and others, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chemung on the 21st day of December, 1911, authorizing the plaintiff to serve an amended. and supplemental complaint. Motion by the plaintiff, The Onondaga County Savings Bank, to dismiss the appeal taken by the said defendants.

Appeal by the defendant, William W. Penfield, 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 April, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 27th day of May, 1910, upon the verdict of a jury, and also affirming an order of said City Court denying the defendant’s motion for a…

<p>Appeal by the plaintiff, the Millard Construction 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 22d day of December, 1910, upon the verdict of a jury rendered by direction of the court at the close of plaintiff’s case, 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>

Appeal by the plaintiff, The City of New York, 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 defendant, entered in the office of the clerk of said court on the 6th day of March, 1911, Upon the dismissal of the complaint.

<p>Replevin.—action to recover property held by receiver in supplementary proceedings—pleading — defense by way of avoidance—adjudication in supplementary proceedings — effect of plaintiff’s failure to reply — order — refusal to order receiver to turn over property — when no adjudication as to title.</p> <p>Where a receiver appointed! in supplementary proceedings being sued in replevin for the recovery of a promissory note alleges as defenses byway of avoidance, first, that he took and holds possession of the note as receiver, and, second, that in the supplementary, proceedings there was a determination that the plaintiff was not entitled to possession of the note, the plaintiff by failing to serve a reply to said defenses as ordered by the court pursuant to section 516 of the Code of Civil Procedure merely admits the facts set forth in the defenses. There is no waiver of his right to attack the defenses as insufficient in law.</p> <p>A receiver appointed in supplementary proceedings while entitled to the possession of the property of the judgment debtor is not entitled to hold, as against the true owner, property which in fact does not belong to the debtor. As against the receiver the true owner of the property has the same remedies that he would have against any other individual who refused to restore the property on demand.</p> <p>A third person having in possession property of a judgment debtor can only be required to turn it over to a receiver in supplementary proceedings, pursuant to section 2447 of the Code of Civil Procedure, where the debtor’s right to the property is not substantially disputed.</p> <p>Where the title of the debtor is disputed an order denying a motion to compel the third party to deliver the property to a receiver in supplementary proceedings is not an adjudication as to the ownership.</p> <p>So, too, the refusal of the court in a supplementary proceeding to order the receiver to summarily turn over the property to one claiming title is not a final adjudication as to ownership, nor does it prevent the claimant from maintaining an action of replevin against the receiver. Clarke, J., dissented.</p>

Appeal by the plaintiffs, Justus Von Lengerke and another, copartners, etc., from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of June, 1910, as dismisses the complaint by direction of the court after a trial at the New York Trial Term • as to the defendants Otto M. Eidlitz and another, individually and as copartners..

<p>Reference — when examination of- long account not involved.</p> <p>A referee should not be appointed to hear and determine an action brought by a contractor against a city to recover for the removal of snow and ice at certain sums per cubic yard, dependent upon the locality from which the snow was taken, for although a large recovery may be demanded, the amount thereof is a matter of mere computation, even though many witnesses may be required to show the number of yards removed.</p> <p>It is not sufficient to uphold a compulsory order of reference to show that there is a possibility that the examination of a long account will be involved; that fact must be shown with reasonable certainty.</p>

<p>Intoxicating liquors — crime — obstruction of window giving view of bar—liability of certificate holder for acts of servant — intent immaterial.</p> <p>The holder of a liquor tax certificate is properly convicted of a misdemeanor for screening the windows giving a view of his bar from the street during the hours when traffic in liquor is forbidden, contrary to the statute, although the obstruction was placed in position by his employee during his absence. A conviction for such violation of the Liquor Tax Law does not depend upon criminal intent.</p>

<p>Appeal by the relator, Stella Burke, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1912, dismissing a writ of habeas corpus and remanding the relator to custody.</p>

<p>Real property — Vendor and purchaser — collateral agreement to fill in creek—inability of vendor to perform through, lack of title—when no breach of contract — damages.</p> <p>A written indorsement on a contract to convey lands by which the vendor promised within three years to fill in “free to lot buyers” a .certain creek, which did not abut upon the land but was 600 feet distant from it, is a collateral independent agreement not connected with the contract to convey. '</p> <p>Hence, where the vendor was unable to fill in the creek at the date to which the passing of title had been adjourned owing to the fact that it had been judicially decreed that he did not have title to the creek, the vendee cannot maintain an action to recover damages for a breach of the contract to convey.</p> <p>Even if such agreement to fill in the creek be deemed a part of the contract to convey, when the vendbr who contracted in good faith was unable to perform because it had been judicially determined that he had no title, the vendee’s measure of damages is merely the amount paid upon the contract with interest and reasonable disbursements for examination of title.</p>

Appeal by the defendant, Vanderveer Crossings, Incorporated, 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 November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Theodore Mayer and another, from part 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 28th day of February, 1912, granting the plaintiff’s motion for a bill of particulars.

Appeal by the defendant, Solomon Schlanger, 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 December, 1911, granting the plaintiff’s motion for judgment on the pleadings.

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 1st day of July, 1910, confirming the report of commissioners of estimate herein and denying the motion of the city to confirm the report of the commissioner of assessment and returning said report to the said commissioner of assessment for revision and correction.

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 9th day of June, 1911, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 6th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Alexander Thain, 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 17 th day of February, 1912, as denies the defendant’s motion to have the causes of action in the complaint separately stated and numbered and to have the complaint made more specific and certain in certain respects and to have certain parts thereof stricken out as irrelevant,…

<p>Reference — findings — compliance with, order of reference.</p> <p>Where, in a proceeding by a client to substitute attorneys, an order of reference merely empowers the referee to determine the amount due to the attorney from his client for legal services and disbursements, and the referee finds that the attorney, by neglect and misconduct, has forfeited his lien, and “is entitled to no relief herein and must be left to the pursuit of his remedy by an action at law,” and for this reason omits to find whether or not the client was indebted to the attorney for legal services or disbursements, the findings are not in accordance with the order of reference and should not be approved.</p>

Appeal by the plaintiff, John B. Jones, 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 18th day of April, 1911, upon the verdict of a jury rendered by direction of the court. ' . .

Appeal by the defendant, Joseph P. Day, from a judgment of the Supreme Court .hi favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of November, 1911, denyingthe defendant’s motion fora new trial made upon the minutes.

Appeal by the defendant, The Fidelity Mutual Life Association of Philadelphia, Pennsylvania, 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 January, 1912, resettling a judgment entered upon a remittitur from the Court of Appeals, and also from . an interlocutory judgment entered in said clerk’s office on the 30th day of January, 1912, pursuant to the said order appealed…

<p>Contract — agreement to erect building — privilege of owner to finish, building on default of contractor — effect of acceptance of work done.</p> <p>Where a contract for the erection of a building provided in substance that on a failure of the contractor in performance being certified by the architects, the owner might terminate the contractor’s employment and finish the building at its own expense, in which case if the unpaid balance under the contract exceeded the expense incurred by the owner in completing the work the excess should be paid to the contractor, but if the expense of completion exceeded the unpaid balance the contractor should pay the difference to the owner, the latter having terminated the con- ■ tract and taken possession on the ground that the contractor had built portions of the wall of solid brick instead of hollow brick as required by the contract, must pay to the contractor the balance of the contract price, if in fact the owner expended no moneys in remedying the defect but used the building as it stood.</p>

Appeal by the defendants) Hans' Triest 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 26th day of December, 1911, as resettled by an order entered in said clerk’s office on the 9th day of January, 1912, granting the plaintiff’s motion for judgment on the pleadings.

<p>Motion for a reargument of an appeal by the defendant, the Postum Cereal Company, Limited, or, in the alternative, to certify questions to the Court of Appeals.. (¡See 149 App. Div. 143.)</p>

<p>Prohibition—jurisdiction of Appellate Division to grant writ.</p> <p>An application, pursuant to section 2093 of the Code of Civil Procedure, for an absolute writ of prohibition to enjoin a further hearing upon a writ of habeas corpus, originating and pending in the county of Kings, which is in the Second Department, should be made to the Appellate Division of such department and not to the Appellate Division of an adjoining department where, at the time the alternative writ of prohibition was ordered, five justices of the Second Department were in attendance at the court house ready to attend to any court business presented, although the court had taken a recess but had not adjourned.</p>

<p>Master and servant—negligence — injury by “jointer ” machine — failure to guard knives — Employers’ Liability Act—assumption of risk—practicability of guarding machine danger not to be anticipated — erroneous charge.</p> <p>In an action by a servant under the Employers’ Liability Act to recover for injuries sustained because of the alleged negligence of the master in failing to guard the knives of a “jointer” machine, the plaintiff’s assumption of the risk is a question of fact for the jury.</p> <p>A master is bound to guard machinery as required by section 81 of the Labor Law only when it is practicable to do so and when danger can reasonably be anticipated from a failure to guard it. Where the duty to guard exists the failure to ¡guard is merely evidence of negligence to be submitted to the jury with the other evidence; it is not negligence as a ’ matter of law.</p> <p>Hence, in an action against a master to recover for injuries received by reason of his failure to guard the knives of a machine it is error to charge that if the jury found it practicable to place a guard upon the machine -the master was negligent in omitting to do so.</p> <p>In such action it is error to refuse to charge that ¡the master owed no . duty to guard the machine if in'the exercise of reasonable care he could not have foreseen that the accident would have occurred in the manner in which it happened.</p> <p>Miller and Laughlln, JJ.„ dissented, with opinion; " "</p>

Certiorari issued out of the Supreme Court and attested on the 8th day of May, 1911, directed to Joseph P. Hennessy and others, composing the board of assessors of the city of Mew York, 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 regard to the petition of the relators to be awarded damages for a change of grade.

Certiorari issued out of the Supreme Court and attested on the 17th day of January, 1910, directed to Antonio Zucca and others, composing the board of assessors of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in determining the damage to be awaisded to the relators for a change of grade.

Motion by' the plaintiff, the Cranford Company, for a new trial upon a case containing exceptions, ordered to he heard at the Appellate Division iin the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term in May, 1909,

<p>Appeal by the plaintiff, Charles J. Breck, as trastee, etc.,, 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 5th day of January, 1912, upon the dismissal of the complaint at the close of plaintiff’s case by direction of the court, and also from an order entered in said clerk’s office on the 2d day of January, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Stanislava Cholódnicka, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of February, 1912, granting the defendant’s motion to vacate an order of arrest.

Appeal by the defendant, William E. Parsons, Jr., 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 31st day of October, 1911, upon the decision of the court rendered after a trial at the Hew York Special Term.

<p>Appeal by tile defendant, The Texas 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 February, 1912, modifying an order entered in said clerk’s office on the lfth day of October, 1911, which required the plaintiff to furnish a bill of particulars, by striking out certain parts of said order.</p>

Motion by the defendants, William Hammerstein and others, to dismiss an appeal by the plaintiffs from a judgment herein. Charles Ooldzier, for the motion.

<p>Appeal by Benjamin F. Gerding, as executor, etc., 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 23d day of December, 1910, confirming the report of commissioners of estimate and as ¿essment herein.</p>

Appeal by the defendant, Louis Reichenbach, 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 January, 1912, as resettled by an order bearing date the 9th day .of February, 1912, and entered in said clerk’s office, denying a motion to dismiss the complaint herein for failure to prosecute the action.

<p>Practice — examination of officer of corporation before trial — form of order — scope of examination.</p> <p>Although an order for the examination of the president of a corporation before trial should direct the examination of the corporation by its president instead of directing the examination of the president of the corporation, a mistake in this respect is a mere irregularity which may be cured by amendment.</p> <p>The examination of a party before trial should be confined to the issues raised by the pleadings.</p>

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 1st day of July, 1910, confirming the report of commissioners of estimate herein, and denying the appellant’s motion to confirm the report as to the assessment for benefit, and referring the said report to a new commissioner of assessment for revision and correction.

Appeal by the relator, Alfred A. Isaacs, 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 December, 1911, as resettled by an order entered on the. 16th day of January, 1912, dismissing a writ of habeas corpus.

Appeal by the plaintiff, The David Gilmour Door Company from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk off the county of Mew York On the 30th day of October, 1911, upon the dismissal of the complaint by direction of the court at the opening of a trial at the Mew York Special Term.

Appeal by the plaintiff, Agnes K. M. Mulligan, from a judgment of the Supreme Court in favor of certain of the defendants, entered in- the office of the clerk of the county of New York on the 8th day of December, 1911, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the plaintiff, Gladys M. Peters, 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 March, 1912, requiring the complaint to be made more definite and certain.

<p>Municipal corporations—police officer — facts not justifying dismissal.</p> <p>Certiorari to review the action of the police commissioner of the city of New York in discharging a patrolman for “conduct unbecoming an officer; neglect of duty and insubordination. ” Evidence examined, and held, insufficient to justify the dismissal and that the relator should be reinstated.</p> <p>When an officer receives an order, which is designed to prevent his performance of what seems to be a plain statutory duty, he should not be convicted of insubordination because he stops for a few minutes to consider what course his duty as a policeman requires him to take.</p>

<p>Appeal — after service of Answer from order overruling demurrer — dismissal.</p> <p>Where a defendant, after an Order has been entered overruling his demurrer to the complaint and granting him leave to answer, serves an answer, a subsequent appeal from the order should be dismissed, for the demurrer has been superseded by the answer.</p>

<p>Appeal by the plaintiff, Louis Stolitzky, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 10th day of October, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to a counterclaim of the defendant Peter Linscheid.</p>

Appeal by the defendants, John F. Foley and another, as executors, etc., 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 12th day of June, 1911, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 9th day of May, 1911, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendants, The City of New York 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 14th day of July, 1911, upon. the verdict of a jury for $1,000, and also an appeal by the defendant, The City of New York, from an order entered in said clerk’s office on the 25th day of July, 1911, denying said defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the Brooklyn Telegraph and Messenger Company, from a judgment of the County Court of Kings county in favor of the plaintiffs, entered in the office of the clerk of said county on the 9th day of August, 1911, upon the special verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of August, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal — effect of failure of trial court to make findings of fact — deed — delivery in escrow — evidence — cross-examination to show complete transaction.</p> <p>Where in a suit in equity to compel the delivery of a deed the trial court makes no findings, a judgment dismissing the complaint is not on the merits, but merely one of nonsuit and brings up for review questions of law only.</p> <p>The question of the delivery of a deed is one of intention to be ascertained from the surrounding circumstances.</p> <p>Where an owner of lands directed attorneys to draw a deed to a certain grantee which she subsequently executed, except that the space for the consideration was not filled in, and left the deed with the attorney with an understanding that she and the grantee would subsequently return and close the transaction, which they faded to do, there was no delivery, even if it be assumed that the attorney was agent of the grantee. Under such circumstances the attorney merely held as bailee to await the happening of a future event.</p> <p>Where the plaintiff seeking to compel the delivery of the deed calls the attorney who drew the deed as her own witness, the defendant on cross-examination may show what conversation took place between the attorney and -herself when she executed the deed and left it with him. As the plaintiff showed but part of the transaction the defendant on cross-examination was entitled to have the whole appear.</p>

Appeal by the defendant, Autocar Sales- 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 November, 1911, upon the verdict of 'a jury for $2,200, and also from an order entered in said clerk’s office on the 13th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 9th day of May, 1911.

Appeal by the defendant, F. W. Wool worth & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 13th day of June, 1911, upon the verdict of a jury for §2,000, and also from an order entered in said clerk’s office on the 9th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by tbe plaintiff, Hugh Lennon, from a judgment of the Supreme Ooiurt in favor of the defendant, entered in the office of the clerk of the county of Queens on the lith day of November, 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 Queens County Trial Term.

Appeal by the plaintiff, James M. Anderson, committee, 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 13th day of March, 1911, granting the defendant’s motion to vacate a judgment for the annulment of a marriage.

Appeal by the defendants, August Belmont and others, from an order of the Supreme Court, made at the Nassau Special Term, and entered in the office of the clerk of the county of Nassau on the 9th day of February, 1912, denying the said defendants’ motion for judgment on the pleadings.

Appeal by the plaintiff, Josephine Friedel, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 24th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

<p>Husband and wife — separation agreement — suit to reform agreement so as to increase allowance — power of court of equity to grant counsel fees.</p> <p>The Supreme Court may entertain a suit in equity brought by a wife to reform a separation agreement executed between herself and husband when living apart so as to increase the sum the husband agreed to pay for her maintenance.</p> <p>.In such suit a court of equity has inherent jurisdiction, independent of the statute, to allow the wife counsel fees payable by her husband.</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 City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of October, 1911, upon the verdict of a jury for $300, and also from an order entered in said clerk's office on the 25th day of November 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, John Friel and another, in the first above-entitled action, and by the plaintiff, Edward Cade, in the second above-entitled action, from respective judgments 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 December, 1911, upon the dismissal of the complaint by direction of the court at the- close of plaintiffs’ case on a trial at the Kings County Trial Term.

<p>Costs — new trial — verdict contrary to evidence.</p> <p>Where a trial judge grants a new trial upon the ground that the verdict is contrary to the evidence, costs should not be imposed upon the litigant to whom the relief is afforded unless the judge determine that there has been fault or omission on the part of said litigant.</p>

<p>Appeal by the defendant, The Mack Paving and 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 Westchester on the 9th day of March, 1911, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 10th day of March, 1911, as amended by an order entered on the 20th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Blossie A. Hanan, as surviving executrix, etc., of Marcus Hanan, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of January, 1912, which by its terms takes the place of a prior order entered in said clerk’s office on the 11th day of December, 1911, granting the defendant’s motion to discharge a judgment.

<p>Debtor and creditor — suit to set aside conveyance as fraudulent — bankruptcy.</p> <p>Suit by a trustee of a bankrupt corporation to set aside a transfer of its property alleged to have been made in fraud of creditors. Evidence examined, and held, that the conveyance was not fraudulent in that the transferor received an adequate consideration in stock which it subsequently sold to third parties.</p>

Appeal by the plaintiff, George P. Horn, 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, 27th day of June, 1911, upon the dismissal of the complaint, by direction of the court, upon the pleadings and upon the opening on a trial at the Kings County Trial Term.

Appeal by the plaintiff, Stephen T. Byrnes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of June, 1910, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

Appeal by the defendant, the Mew York Evening Journal Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of July, 1911, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 3d day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James Talcott, 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 14th day of February, 1911, upon the report of a referee, and also from an order entered in said clerk’s office on the same day granting the plaintiff an extra allowance.

Appeal by the plaintiff, Daniel Magee, from a judgment of the City Court of Yonkers, entered in the office of the clerk of said court on the 25th day of January, 1912, upon the decision of the court dismissing the complaint upon the merits.

Appeal by the defendant, William Zwingmann, 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 29th day of December, 1911, denying a motion of the corporation counsel to vacate an order entered in said action on the .5th day of October, 1911.

Appeal by the plaintiffs, Ashbel H. Barney and another, as executors, etc., and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk’ of the county of Hew York on the 2d day of March, 1911, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.

<p>Charges of professional misconduct by the Association of the Bar of the City of Hew York against the respondent, an attorney at law.</p>

Appeal by the defendant, the Autographic Register 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 3d day of April, 1912, placing the case upon the special calendar for preferred and short causes.

Appeal by the defendant, William J. Chamberlain, from a judgment of the Supreme Court in favor of the plaintiff, entered iii the office of the clerk of the county of New York on the 27th day of January, 1912, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 22d day of January, 1912, denying the defendant’s motion for a new trial.

Appeal by the defendant, Benjamin P. Ducas, 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 21st day of February, 1912, upon the decision of the court, rendered after- a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the plaintiff, the Kalt Lumber 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 oh the 25th day of March, 1912, denying the plaintiff’s motion for leave to amend the complaint.

Appeal by the defendant, Rafael Toledo, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered against the defendant on the 28th day of March, 1911, convicting him of the crime of subornation of perjury.

Appeal by the plaintiff; Arthur B. J. Sauerbrunn, 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 19th day of March, 1912, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 20th day of March, 1912, denying the plaintiff’s motion for a new trial; and an appeal by the defendant,' The Board of Education of the City of New…

Appeal by Hamilton M. Dawes, as trustee in bankruptcy of JohnF. Cockerill, one of the defendants, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1912, denying a motion in surplus money proceedings.

Appeal by the defendants, Isabel Lucchesi GruiUemin and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 20th day of June, 1911, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the relator, Morris Cohen, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 1-st day of May, 1911, dismissing a writ of habeas corpus and remanding the relator.

Appeal by the defendant, Ellen Connell, from a judgment óf the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1911, upon the decision of the court rendered after a trial at the New York Special Term. The action was to set aside certain deeds upon the ground of fraud and false representations.

Appeal by the plaintiff, Edward B. Kelley, 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 25th day of November, 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 New York Trial Term;

<p>Attorney and client — power of court to compel attorney to aPPly moneys received on account toward payment of costs and disbursements.</p> <p>Where it is expressly agreed between an attorney and his client that a certain sum paid on account shall be applied primarily to the payment of the costs and disbursements of the litigation, and that the surplus, if any, shall be applied on account of services and that the balance of the attorney’s compensation shall be contingent upon ultimate success, and the case is finally decided against the client, with costs, the court may compel the attorney to repay the money received by him or to apply it on account of said costs and disbursements.</p>

<p>Appeal by the plaintiff, Wiliam Otten, 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 20th day of January, 1911, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint.</p>

Appeal by the plaintiff, Justus N. Williams, 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 5th day of December,… Held: and providing for his discharge and the cancellation of his bond.

<p>Charges by the Bar Association of the city of New York to discipline the respondent, an attorney at law.</p>

<p>Attorney at law disbarred.</p> <p>Attorney at law disbarred for fraud and deceit in aiding and abetting a witness in the commission of perjury and in commencing an action for personal injuries without the consent of his client.</p>

<p>Municipal corporation — authority of court to review action of commissioners appointed by mayor of city of New York to estimate damages caused by change of street grade — mandamus — certiorari—laches —extension of time of commissioners to hear claims.</p> <p>Where claims for damages, sustained by reason of changes in the grade of streets made in conformity with the provisions of chapter 731 of the Laws of 1887, and filed with commissioners appointed by the mayor of the city of New York, pursuant to chapter 537 of the Laws of 1893 and the act amendatory thereof, were all dismissed by the commissioners between the 18th day of April, 1899, and the 13th day of March, 1902, on motion of the corporation counsel, upon the ground that the commissioners were without jurisdiction to hear the same for the reason that the lands described in the claims were not situated within the area within which grades were changed, as shown on a map filed pursuant to the provisions of chapter 721 of the Laws of 1887, the Special Term has no authority to review the action of the commissioners and vacate their order dismissing the claims.</p> <p>If the action of the commissioners in dismissing the claims was a nullity, then the remedy of the claimants is to apply for a writ of mandamus to compel the commissioners to hear and determine the claims on the merits; if the action of the commissioners constituted a judicial determination on the facts presented with respect to their authority to hear the claims, then it is reviewable by certiorari.</p> <p>The fact that the claimants have been guilty of laches in allowing more than nine years to elapse after the dismissal of their claims before asking for relief is not a bar to their application where it does not appear that the city has been prejudiced by the delay.</p> <p>The authority of the court to extend the time of commissioners appointed pursuant to chapter 537 of the Laws of 1893, to hear claims, is limited to applications made before the time expires.</p> <p>Miller, J., dissented.</p>

<p>Court — Municipal Court, Hew York city — motion to compel filing of transcript from judgment — jurisdiction of Special Term — time of filing transcript.</p> <p>As a county clerk in filing a transcript of a judgment from an inferior ■ court acts as a county officer under the Constitution and not as the clerk of the Supreme Court, the Special Term has no jurisdiction to grant relief on a motion to compel such clerk to file the transcript of a judgment from the Municipal Court of the city of New York.</p> <p>The provisions of section 8017 of the Code of Civil Procedure, limiting the time within which a transcript from a Justice’s Court may be filed to six years after the rendering of the judgment, apply to Municipal Court judgments and transcripts issued thereon, and are not inconsistent with section 281 of the Municipal Court Act, which only provides for a filing of the transcript, and contains no provision as to time.</p> <p>Hence, a transcript of a judgment of the Municipal Court must be filed within six years after the judgment is rendered.</p> <p>Scott and Dowiii&, JJ., dissented, with opinion.</p>

<p>Attorney suspended from practice.</p> <p>Attorney at law suspended from practice for converting to his own use moneys received for a client in settlement of litigation.</p>

<p>Application to discipline an attorney.</p>

Appeal by the defendant, George Hoffman, 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 14th day of December, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff entered on the 23d day of June, 1911, and an order of said City Court entered on the 26th day of June, 1911, and also (as stated in. the notice of appeal) from said judgment and order of the City…

Appeal by the defendant, Ralph Thomas, from a judgment of the Supreme Court in favor of the plaintiff and against said defendant, entered in the office of the clerk of the county of New York on the 22d day of December, 1911, upon the verdict of a jury for $1,500,. and also from an order entered in said clerk’s office on the 22d day of December, 1911, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, George Schuchman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the comity of New York on the 29th day of January, 1912, granting the plaintiffs’ motion for judgment on the pleadings.

<p>Appeal by The City of New York and by Harold Swain from parts 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 27th day of October, 1910, confirming the report of commissioners of estimate and assessment herein.</p>

<p>Appeal by the defendant, Oscar Huttlinger, 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 31st day of January, 1912, as resettled by an order entered in said clerk’s office on the 1th day ©f February, 1912, granting the plaintiff’s motion to withdraw a juror.</p>

Appeal by the plaintiff, John J. Lyons, as treasurer, etc., 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 18th day of December, 1911, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Andrew Long, from a judgment of the Court of General Sessions of the county of New York, rendered against the defendant on the 29th day of January, 1912, convicting him of the crime of rape in the first degree, and also from an order denying the defendant’s motion for a new trial.

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

Appeal by the plaintiff, Caroline J. Taylor, 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 llth day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of May, 1911,. denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Frank Oazenove Jones, as executor, etc., 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 March, 1911, upon the verdict of a jury, and also from ati order entered in said clerk’s office On the 20th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Thomas Madigan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of March, 1912, denying the defendant’s motion tó change the place of trial to the county of Rensselaer.</p>

<p>Judgment by default — motion to open default denied.</p> <p>Appeal from an order setting aside a judgment entered against the defendant by default and restoring the cause to the calendar. Having obtained several adjournments the defendant failed to appear at the time set for trial, and claimed that the judgment taken on his default should be opened on the ground that he was ill. Evidence examined, and held, that an order vacating the judgment by default should be reversed.</p>

<p>Master and servant — negligence—injury to carpenter by breaking timber — evidence — trial — right to recall witness.</p> <p>Plaintiff, a carpenter, brought an action against his employer to recover for personal injuries alleged to have been caused by the breaking of a crosspiece or stringer on which he was piling timbers at the request of the defendant. After describing in detail his injuries plaintiff was asked: “ Q. Mr. Carlson, will you tell the jury just what Mr. Peterson said to you before you started in to pile this lumber?” and “Q. Did Mr. Peterson direct you to pile the beams on this platform there? ”</p> <p>Held, that the questions were proper and the plaintiff should have been permitted to answer, for he had a right to show what the defendant said to him, not only as to doing the work itself, but also as to the manner in which he should do it.</p> <p>The court also erred in refusing to permit plaintiff’s counsel to recall the plaintiff as a witness for the purpose of asking “one further question,” on the ground that the plaintiff had “left the stand.”</p> <p>Unless it appears that a request to recall a witness is not made in good faith, or that he has been fully examined concerning the subject, or the same is immaterial, he should be permitted to take the stand again for ’ further examination.</p>

Appeal by the defendants, Bella W. Hochstadter 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 16th day of April, 1912, denying the defendants’ motion for an order requiring the plaintiff’s attorneys to receive and accept nunc pro tunc a notice of trial for the Special Term served on behalf of the defendants, and also for a separate trial of the issues raised by the…

<p>Appeal by the defendants, Bella W. Hochstadter 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 16th day of April, 1912, granting the plaintiff’s motion to strike the action from the calendar of the Special Term for trials.</p>

<p>Real property— discharge of lost or mutilated mortgage in city of first class —■ sections 322 and 333 of the Real Property Law construed.</p> <p>In a county embraced wholly in a city of the first class a mortgagor of any person having an interest in procuring the discharge of a mortgage which has been lost, mutilated or destroyed, should upon proof' of the facts apply to the court under section 822 of the Real Property Law for an order dispensing with the production of the original mortgage and should not proceed under section 333 of said law, as added by chapter 574 of the Laws of 1911, which only applies to cases of- willful neglect or refusal to produce the original mortgage, while section 322 covers the ease of inability.</p> <p>The latter section is not in conflict with the former, nor has it repealed expressly or by implication. Both are in pari materia, and are to be construed as equally effective, but applicable to different situations.</p>

Appeal by the defendant, Harry M. Kaiser, as warden, etc., and by the People of the State of New York, from a final 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 February, 1912, as resettled by an order entered in said clerk’s office on the 16th day of April, 1912, discharging a prisoner on habeas corpus.

Appeal by the plaintiff, William M. Fliess, individually and as executor, etc., from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in' the office of the clerk of the county of Hew York on the 18th day. of January, 1912, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the plaintiff’s demurrer to counterclaims set forth in the amended answer of certain of the defendants.

Appeal by the defendant, The Maze Realty 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 10th day of November, 1911, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Sadie Babad, 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 29th day of March, 1912, directing that exceptions be heard in the first instance at the Appellate Division.

<p>Injunction—landlord and tenant — temporary injunction restraining interference with repairs by tenant.</p> <p>Where there is' an issue as to whether a sub-tenant of a portion of a building was authorized by his landlord to make certain structural changes in the building such as could not be made without consent, the landlord should not be enjoined pendente lite from interfering with the proposed alterations of the sub-tenant. Such injunction enabling the tenant to proceed with the alterations substantially decides the controversy before trial. Such injunctions are only upheld where they rest upon facts substantially admitted or fairly and unmistakably proven.</p>

Appeal by the defendants, The New York Elevated Railroad 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 New York on the 15th day of March, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Elections — primary elections — use of party emblem — contest by “independent body.”</p> <p>The provisions of chapter 891 of the Laws of 1911, governing primary elections, relate exclusively to “party” nominations and not to those of “ independent bodies ” which nominate candidates Only by petition and take no part in primary elections.</p> <p>Hence, the provisions of said statute relating to party emblems used in primary elections and the determination of conflicts in regard thereto, do not empower the election board, ór the Supreme Court, to determine the right to the use of a party emblem at the instance of an “independent body.”</p> <p>The court possesses and should attempt to exercise only such power to interfere with the conduct of primary elections as is conferred by statute.</p>

Appeal by the defendant, Samuel Dixon, 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 November, 1911, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendants, Harrison Jeffray Gibb and - another, from a judgment of the Supreme Court in favor of certain other of the defendants, entered in the office of the clerk of the county of New York on the 8th day of January, 1912, upon the report of a referee.</p>

Appeal by the defendant, Thomas Bracken, judgment debtor, 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 March, 1912, denying said defendant’s motion to stay the examination of certain witnesses in supplementary proceedings and to vacate subpoenas.

<p>Practice —penalty for failure to exhibit transfer book of corporation — intervention of trustee in bankruptcy of plaintiff pending appeal — disposition of proceeds.</p> <p>Where, before the entry of judgment in an action against a local transfer agent of a foreign corporation to recover a penalty under section -53 of the Stock Corporation Law (Laws of 1892, chap. 688, as amd. by Laws df 1897, chap. 384) for a refusal to exhibit to a stockholder the stock book and list of stockholders of the corporation, the plaintiff was adjudicated a voluntary bankrupt and a trustee appointed, such trustee, after the entry of judgment in favor of the plaintiff and pending an appeal therefrom, should not be permitted to intervene in behalf of the creditors of the plaintiff.</p> <p>If such judgment should be affirmed, however, the trustee in bankruptcy may test the question as to whether the proceeds of the judgment should . be paid to him for the benefit of creditors or whether the plaintiff is entitled to them.</p>

Appeal by the defendant, the Consumers’ Park Brewing-Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d 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 defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Samuel Rosen, 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 25th day of May, 1910, convicting hixn of the (crime of burglary and also from the indictment.

<p>Attorney — proceedings to discipline attorney — claims of client ' against attorney — repayment.</p> <p>Proceedings to discipline an attorney for malpractice may not be used as a means of enforcing the claim of a client against him. Hence, the court on finding that the charges against an attorney in such proceeding have not been proved will not require the repayment of money to a client as a condition precedent to the dismissal of a charge of misconduct although the client is clearly entitled to it.</p>

<p>Appeal by the defendants, Gordon D. Miller 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 3d day of June, 1911, upon the verdict of a jury; also' from orders entered in said clerk’s office on the 31st day of May, 1911, denying the defendants’ motions to set aside the verdict and for a new trial made upon the minutes, and also from an order entered on the same day granting the plaintiff an extra allowance of $1,200."</p>

Appeal by the defendant, the Texas Central 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 8th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerkte office on the 9th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Isabel Hoyt and another, from so much of a judgment of the Supreme Court in favor of the defendant Dorothy Hoyt, entered in the office of the clerk of the county of' Hew York on the 1st day of March, 1912, upon the decision of the court rendered after a trial at the Hew York Special Term, as directs the plaintiff to pay to the guardian ad litem of the defendant Dorothy Hoyt an extra allowance of $3,000, and that the balance of certain trust funds…

<p>Appeal by the plaintiff, Benjamin Salter, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office óf the clerk of the county of New York on the 23d day of February,' 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint upon the ground of improper joinder of causes of action.</p>

<p>Court—jurisdiction of Special Sessions, city of Mew York — effect of indictment by grand jury — habeas corpus — writ does not lie to question sufficiency of indictment or evidence before grand jury — remedies of defendant.</p> <p>In the city of New York the jurisdiction of the Court of Special Sessions over misdemeanors is ipso facto divested upon the presentment of an indictment by the grand jury before commencement of trial.</p> <p>Where the grand jury of the Court of General Sessions has returned an indictment valid on its face, neither the sufficiency of' the indictment nor the sufficiency of the evidence before the grand jury can be inquired into .upon a writ of habeas corpus.</p> <p>Defendant has an adequate remedy at law by moving to set aside the indictment on the grand jury minutes and such motion having been denied it cannot be reviewed on habeas corpus.</p> <p>Any error of the court having jurisdiction must'be reviewed by appeal from the final judgment, or upon trial by a motion in arrest of judgment.</p>

Appeal by the plaintiff, William L. Johnson, from a judgment of the Supreme Court in favor of the defendant Victoria Chief Copper Mining and Smelting Company, entered in the office of the clerk of the county of New York on the 25th day of October, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing.the complaint upon the ‘ merits as to said defendant.

<p>Appeal by the defendant, Eversley Childs, individually and as sole trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of February, 1912, denying the defendant’s motion for . judgment on the pleadings.</p>

Appeal by the defendant, J. Clarence Rightmyer, 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 February, 1912.

Appeal by the defendant,' William A. Prendergast, as comptroller of 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 5th day of December, 1911, granting a peremptory writ of mandamus.

<p>Appeal by the defendant, The National Nassau Bank, 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 April, 1912, granting a preference in the above-entitled action.</p>

Appeal by the plaintiff, Simon Heilbrunn, from am order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of February, 1912. . ■ - •

Appeal by the defendant, 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 12th day of March, 1912, denying the defendant’s motion for leave to serve an amended answer to the amended complaint.

Appeal by the defendant, Charles J. Holman, as treasurer, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1912, as resettled by an order entered on the 26th day of April, 1912, denying in part the defendant’s motion to¡ strike out certain allegations of the complaint as irrelevant and redundant.

Appeal by Mary F. Turner and another,, parties contestant, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 15th day of ■ March, 1911, granting to Grace Meehan letters of administration de bonis non upon the estate of Frank 0. Meehan, deceased.

Appeal by the defendant, Timothy D. Lehane, 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 May, 1911, upon the verdict of a jury for $250, 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.

<p>Husband and wife — action for divorce —action for (separation pending — demurrer — judgment of separation no bar.</p> <p>In an action for an absolute divorce the defense of another action pending between the same parties for separation on the ground of abandonment and non-support is demurrable for insufficiency. A judgment in a separation action does not bar an action for an absolute divorce.</p>

<p>Husband and wife—libel—action by husband for libel against wife.</p> <p>A husband may maintain an action for damages for the physical illness of his wife due to mental anguish caused by the publication of words •reflecting upon her character, which were libelous per se.</p>

<p>Appeal by the defendants, De Witt C. Bouker, Jr., 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 20th day of April, 1911, overruling exceptions to the report of a referee and confirming said report, and also from a final judgment in favor of the plaintiff entered in said clerk’s office on the 24th day of July, 1911, upon said referee’s report.</p>

Appeal by the defendant, the Hedden Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January, 1912,' upon the verdict of a jury for $525, and also from an order entered in said clerk’s office on the 29th day of January, 1912, denying- the said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the United States Fidelity and Guaranty Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of November, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to certain defenses.

<p>Appeal by the plaintiff, Emma A. Davis, 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.</p>

Appeal by the defendant,. Albert Skinner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, 1912, disallowing and striking from the judgment certain items of costs.

Appeal by Edward B. Hosier 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 April, 1912.'

Appeal by the defendants, The Wabash Railroad Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of January, 1912, upon the decision of the court rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrers to separate defenses set forth in the respective answers of the appellants.

Cross-appeals by the plaintiff, James Pollitz, and the defendants, The Wabash Railroad Company and others, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of January, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer as to certain defenses set forth in the answers of certain of the defendants and overruling the…

Appeal by the defendant, Mary Bagot Hindley, 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 21st day of March, 1911, upon the report of a referee in an action for an absolute divorce.

Appeal by the defendant, the New York Transportation 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 April, 1911, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 2d day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Morris Salomon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of December, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Contract — exclusive sale of asphalt for limited period in limited territory '— public policy — action for breach, of contract -—evidence — contract in partial restraint of trade.</p> <p>The vendee of asphalt insisted as a condition of purchasing that the vendor should not, during the continuance of the contract — a limited period — sell a particular kind or quality of asphalt to any one else to be used for paving streets in Greater New York—a limited territory — and the vendor restricted him to selling the asphalt for use in said city. The city was neither a party to the contract nor bound to pave its streets with this material, and the vendor was not a public service corporation. The vendor did not agree to refrain from submitting proposals for paving in the city of New York.</p> <p>In an action by the assignee of the vendor to recover damages for breach of contract by the vendee, the court refused to admit evidence offered by the plaintiff to show that the vendor did not have a monopoly of the kind of asphalt in question and dismissed the complaint upon the ground that the contract was against public policy and void.</p> <p>Held, that the contract was valid and that the exclusion of the plaintiff’s evidence and the dismissal of the complaint was error.</p> <p>There may lawfully be a partial restraint of trade in a contract for the sale of property, sufficient to protect the interests of a party and not so great as to interfere with the interests of the public.</p>

<p>Libel—publication criticising relations between attorney and client — —nominal damages.</p> <p>An attorney at the request of an owner of a newspaper submitted to an interview concerning himself and his conduct of an action for personal injuries which he had successfully conducted in behalf of a client. The interview as published commended the conduct of the attorney with respect to the case but conveyed the erroneous impression that he was actuated by charitable motives and had “won" $20,000 for his client, ■ when in fact he was to receive one-third for his services. Subsequently, another newspaper without malice toward the plaintiff published several articles commenting on, explaining and constituting in part a reply to the published interview with the attorney.</p> <p>In an action by the attorney to recover general damages alleged to have been sustained by him in his profession by the publication of the latter articles, evidence and alleged libelous articles examined, and held, that the published interview with the plaintiff became a fan- subject for public comment and criticism and that a verdict of the jury for nominal damages should not be disturbed.</p> <p>Miller, J., dissented.</p>

Appeal by the defendants, James Oreelman and others, constituting the municipal civil service commission of 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 Mew York on the 8th day of April, 1912, denying the defendants’ motion for judgment on the pleadings.

Appeal by the defendant, the Transit Development 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 22d day of July, 1911, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 21st day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Leslie Sutherland, as receiver, etc., 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 11th day of May, 1911, and also from an order entered in said clerk’s office on the 12th day of June, 1911, denying the defendant’s motion for a new trial.

<p>Master and servant — negligence — death, of trackwalker on elevated railroad — master’s knowledge of defective structure — evidence — knowledge of coservant not imputable to master.</p> <p>Where, in an action against an elevated railroad company to recover for the death of a trackwalker alleged to have been killed by the turning of a plank on which he was walking, which formed a temporary passage from the track over an opening to an unfinished structure erected by an independent contractor, it appears that the deceased had no duties which necessitated his going upon the new structure, and it does not appear that it was necessary or customary to go upon it to avoid trains, the liability of the defendant, if any, depends not upon the use of the temporary passage by servants on its premises, but, if there was such use, whether the defendant knew it, or in the exercise of due care ought to have known it.</p> <p>Evidence examined, and held, insufficient to justify the conclusion that the defendant in the exercise of due care ought to have known that its servants were accustomed to use the temporary passage.</p> <p>The knowledge of a coservant is not imputable to his master.</p>

Appeal by the plaintiff, Aaron M. Weigert, 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 24th day of July, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

<p>Return of an alternative writ of prohibition, issued on the 8th day of April, 1912.</p>

<p>.Railroad — negligence—death of employee struck by train while crossing track — evidence —reasonable care — when employee “connected with or employed upon the railroad.”</p> <p>An employee in the shops of a railroad company located near its tracks in going from his work walked along the tracks 150 feet to avoid a train which was standing on the crossing provided for employees, and in going across in the rear of the train was struck and killed. In an action to recover damages for his death, evidence examined, and held, that the complaint was properly dismissed' as there was no evidence that the defendant failed to exercise reasonable care.</p> <p>An employee in the shops of a railroad company is not “connected with or employed upon the railroad,” within the meaning of section 83 of the Railroad Law, so as to require the company to exercise extraordinary care to protect him while upon its tracks at a place not a regular crossing.</p>

<p>Crime—Penal Law, section. 483—endangering morals of minor child — conviction reversed.</p> <p>Evidence in a prosecution for endangering the morals of a female child in violation of section 483 of the Penal Law examined and judgment of conviction reversed.</p>

<p>Will — vested remainders — power of widow and children to convey marketable title.</p> <p>Where a testator devised all his property to his wife for life with remainder to his children then living, provided, however, if his widow should, marry again she should have only the right to dower, upon the death of the testator remainders vested in his children, subject to be divested as to any child that died before the mother.</p> <p>Hence, the widow and children cannot convey a marketable title in fee.</p>

Appeal by the defendant, Millicent Burton, from part of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of November, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, David Proskey, president, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Kockland on the 10th day of November, 1911.

<p>Appeal by the plaintiffs, J. Bradley Scott and others, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 30th day of June, 1911, denying the plaintiffs’ motion for an injunction pendente lité.</p>

<p>Appeal by the defendant, Mary Hnner, 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 February, 1912, overruling the defendant’s ' demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.</p>

<p>Appeal by the plaintiffs, Catherine Fox and others, from a judgment of the Supreme Court in favor of the defendant, entered in the' office of the clerk of the county of Suffolk on the 10th day of October, 1910, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint on the merits.</p>

<p>Appeal by William Sohmer, as Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 2lth day of October, 1911, exempting the transfer of the residuary estate of the decedent from payment of ¡a transfer tax.</p>

Separate appeals by the relators in the above-entitled actions, William Willett, Jr., Joseph Cassidy and Louis T. Walter, Jr., from respective orders' of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens in the first action on the 29th day of December, 1911, and in the second and third actions on the 20th day of December, 1911, dismissing writs of habeas corpus.

<p>Appeal by the defendant, Yetta Bloom, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of January, 1912.</p>

Appeal by the defendant, the New York Inter-Urban Water 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 Westchester on the 19th day of May, 1910, confirming the report of a referee, directing a sale in partition.

<p>Application to disbar or otherwise punish Robert H. Haskell, an attorney and counselor at law.</p>

Appeal by the defendant, the Mack Paving and Construction Company, from an order of the Supreme Court, máde at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 19th day of October, 1911, granting the plaintiff’s motion to set aside a verdict in defendant’s favor and also for a new trial made upon the minutes.

Appeal by the defendant, Edmond J. Hayes, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 8th day of July, 1911.-

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of October, 1911, upon'the verdict of a jury, and also from an order entered in-said clerk’s office on the 6th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Roman Catholic Church of St. Teresa of ¡North Tarrytown, NT. Y., from a, judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the- county of Westchester on the 18th day of April, 1911, upon the decision of the court rendered after á trial at the Westchester Special Term.

Appeal by the plaintiff, Herman Lazarus, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 21st day of April, 1911, denying the plaintiff’s motion for a new…

Appeals by William Einstein and Augusta. E. Wendt, as administrators, etc., and by the comptroller and chamberlain of the city of Hew York, from parts of an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 25th day of August, 1911, confirming the report of a referee.

Appeal by the defendant, Maurice É. Connolly, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of January, 1912.

Appeal by the defendant, Jacob Euppert; 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 10th day, of July, 1911, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 11th day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Eliza De Loynes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 23d day of May, 1911, upon the verdict of a jury rendered by direction of the court after a trial at the Richmond Trial Term, and also from an order entered in said clerk’s office nunc pro tunc on the 19th day of May, 1911, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Real property—mortgage—interest of life beneficiary and contingent remaindermen in express trust—equitable conversion—construction of will.</p> <p>Where executors are directed by will to sell certain property and apply the proceeds to the payment of a mortgage upon a trust estate created by the same will, the life beneficiary and the contingent remaindermen in the trust estate have not an interest in the property directed to be sold, which they can mortgage.</p> <p>Such á peremptory direction for the sale of real property effects an equitable conversion thereof into personalty.</p> <p>Contingent remaindermen in an express trust to receive the rents and profits of real estate have an interest in such realty which they may mortgage subject to the trust.</p> <p>The intention of a testator, as deduced from the entire will, is the primary canon of construction in determining whether interests are vested or • contingént.</p>

<p>Guaranty and suretyship — dissolution of surety company — rights of creditors —fixed liability on bond.</p>

<p>Conversion — sale of farm and stooJc — resale of farm only.</p>

Appeal by the plaintiff from a judgment entered in the Clinton county clerk’s office May 1, 1911, on a decision of the court setting aside the verdict of a jury as to two questions and granting a nonsuit or dismissal of the complaint.

<p>Practice — appeal.</p>

<p>Appeal from a judgment entered in the Hew York county clerk’s office on the 2d day of August, 1911, upon the award of an arbitrator.</p>

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

<p>Appeal from an order, entered on the 5th day of January, 1912, compel- - ling the purchaser to complete his purchase.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 12th day of March, 1912, denying leave to serve a supplemental answer.</p>

<p>Appeal from an order of the- Special Term, entered in the New York county clerk’s office on the 16th day of February, 1912, denying a motion for leave to serve an amended complaint.</p>

<p> Pleading—supplemental answer. </p>

<p>Application for a stay of proceedings from an order of this court dismissing the writ of' habeas corpus and remanding the prisoner to the State’s "prison pending an appeal to the Court of Appeals, and to admit the prisoner to bail.</p>

<p>Appeal from an order, entered on the 19th day of February, 1912, granting a bill of particulars.</p>

<p>Appeal from an order, entered on the 6th day of May, 1912, granting a temporary injunction. ;</p>

<p>Appeal from an order, entered on the 6th day of May, 1912, denying a motion to vaeate a judgment.</p>

<p>Appeal from an order, entered on the 14th day of July, 1911, setting aside a verdict.</p>

<p>Appeal from an order, entered on the 26th day of April, 1912, denying a motion for the severance of actions.</p>

<p>Appeal from an order, entered on the 18th day of Hovember, 1911, confirming report of a referee.</p>

<p>Real property— cemetery lot— ejectment —proof of title.'</p>

<p>Libel—privilege — court proceedings.</p>

<p>Pleading — bills and notes—complaint.</p>

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

<p>Appeal from a judgment, entered on the 14th day of November, 1911, on a verdict and from an order entered on the same day denying a motion for a new trial.</p>

'-Appeal by the defendant from a judgment, entered on the 5th day of July, 1911, foreclosing the lien of a pledge and directing the sale of the chattel.