Volume 151 — New York Appellate Division Reports

<p>Appeal by the petitioner, Myrtle Livingston, 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 20th day of December, 191L</p>

Appeal by William Sohmer, Comptroller of the State of New York, from an order of the Surrogate’s Court of' the county of Kings, entered in said Surrogate’s Court on the 30th day of December, 1910, fixing the transfer tax on the estate of James Jourdan, deceased, and also from an order entered in said Simrogate’s Court on the 21st day of September, 1911, affirming the prior order.

<p>Appeal by the plaintiffs, Cyrus Rheims and Hose M. Began, composing the firm, etc., and others, from an order of the , Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of April, 1909, amending and resettling a prior order denying the plaintiffs’ motion for the continuance of a preliminary injunction pendente lite.</p>

Appeal by the plaintiffs, Jacob Feu and others, copartners, etc., from orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of December, 1911, the loth day of January, 1912, and the 22d day of January, 1912, respectively.

<p>Appeal by the defendants, Philip Simon and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 12th day of May, 1911, upon the decision of the court rendered after a trial at the Nassau Special Term.</p>

<p>Husband and wife — alimony — contempt — defendant beyond jurisdiction.</p> <p>While a party who has failed to pay alimony awarded in a matrimonial action is without the jurisdiction, the court should not grant an order punishing him for contempt by imposing a fine and committing him to custody, for such order would be futile.</p>

<p>Appeal by the defendant, the Laurelton Land Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of July, 1911, upon the decision of the court rendered after a trial at the Queens County Special Term.</p>

<p>Conflict of laws cession of territory to United States — negligence — action under State statute creating action for death, by wrongful act — Labor Law enacted subsequent to cession of territory inapplicable — practice — dismissal of complaint at opening of trial — demurrer — bill of particulars.</p> <p>As the statute of this State creating a cause of action for death caused- by negligence was in force at the"time the lands embraced in the Brooklyn navy yard were ceded to the United States a common-law action may be brought against a master based on negligence resulting in the death of a servant while working in said navy yard.</p> <p>But as the Labor Law of this State was enacted subsequent to said cession of territory no action against the master can be based thereon.</p> <p>Where a complaint is dismissed at the opening of the trial it must be treated as if it had, been demurred to.</p> <p>On a demurrer to a complaint upon the grounds of insufficiency a bill of particulars served by the plaintiff should not be considered as part of the pleading.</p>

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

<p>Debtor and creditor — suit to set aside transfers in fraud of creditors — failure to prove fraud — knowledge of grantee — evidence — suspicion — presumptions — evidence admitted against one of several defendants — subsequent proof of conspiracy.</p> <p>Suit by a judgment creditor to set aside conveyances of property, real and personal, upon the ground that they were made to defraud creditors. Evidence examined, and held, that the conveyances should not be set aside because the evidence was insufficient to show that the transfers were without consideration or that the grantee had knowledge of any fraud.</p> <p>Bare suspicion without evidence to support it is never sufficient to sustain a finding of fraud.</p> <p>•Where a conveyance by a debtor is valid the motive of the grantee in giving a mortgage upon the property is immaterial, for she could give it away if she desired.</p> <p>While a continued use of property by an insolvent debtor who has transferred it is a badge of fraud, it is not necessarily conclusive and the presumption may be overcome by other circumstances.</p> <p>A party who calls his adversary to prove a fact which he must establish and elicits testimony that the fact does not exist, is not entitled to have the jury discredit the evidence of the adversary upon the ground that he is an interested party, and to base upon the assumed falsity of his evidence an affirmative finding of the existence of such alleged fact,</p> <p>■ without any other evidence of its existence or from which it may be inferred.</p> <p>Plaintiff, who contends that evidence originally received against one defendant only is also competent against the others upon the ground that they were subsequently proved to be conspirators, should move for a ruling that the testimony is competent against all, as otherwise the defendants against whom it has not been admitted are justified in relying upon the absence of competent evidence against them. Hirschbbrg-, J., dissented.</p>

Appeal by the defendant, the Fifth Avenue Coach Company, • from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 28th day of March, 1911, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 5th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Robert 0. Wood 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 29th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of June, 1911, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by John Oscar Ball and another from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 29th day of September, 1910, confirming the report and award of commissioners of appraisal in condemnation proceedings, with notice of an intention to bring- up for review a judgment entered in said clerk’s office oh the 14th day of February, 1910, condemning defendants’ property and appointing…

Appeal by the defendant, The New York and North Shore Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 16th day of May, 1911, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 18th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frederick Quatfasel, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 11th day of October, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Queens County Trial Term.

<p>Corporation — injunction to restrain public service corporation from exercising franchise.</p> <p>A domestic corporation organized to furnish light, heat and power and having a franchise, not exclusive, to operate in a certain town is not entitled to a temporary injunction restraining a similar corporation from invading its territory upon the ground that it has failed to get the consent of the Public Service Commission. This, because through its incorporation the defendant has the same franchise rights as the plaintiff, although by not securing the consent of the local authorities and of the Public Service Commission, it has failed to comply with the conditions necessary to the exercise of its franchise.</p>

<p>Appeal by the defendants, the Newburgh Light, Heat and Power Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 27th. day of March, 1911, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 24th day of March, 1911, denying the defendants’ motions for a new trial made upon the minutes..</p>

<p>Vendor and purchaser — suit for specific performance — reformation of deed—damages for failure to convey.</p> <p>In a suit by a purchaser of a building lot to compel the vendor to perform a contract to convey and pay damages for its delay,- it appeared that after the purchaser had performed his part of an agreement of sale the owner tendered a deed containing restrictions as to the character and cost of the house to-be erected, which was refused, as the agreement of sale to the knowledge of the purchaser did not provide for such restrictions. The owner did not deny that the agreement failed to provide for a deed with restrictions, but asked for a reformation of the agreement and then for its performance, claiming that the neglect to provide for the restrictions in the agreement was due to the inadvertence or carelessness of its servants.</p> <p>Held, that a judgment for the plaintiff should be affirmed, and the defendant’s prayer for reformation denied;</p> <p>That damages determined by the legal interest upon $3,500, the reasonable value of the premises during the delay, should not be allowed, as there is no evidence of such value.</p> <p>The court will not reform a contract unless there, is substantial and convincing proof that' it was the intention of both parties to make the agreement as reformation would have it, and that- this intention was frustrated by fraud, accident or mutual mistake.</p>

Appeal by the defendants, the Nassau Electric Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of April, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Husband and wife •— separation — sufficiency of evidence — hearsay.</p> <p>Action by a wife against her husband for separation. Evidence examined, and held, that the judgment for the plaintiff should be affirmed. Evidence that defendant described the plaintiff to friends and neighbors as mentally incompetent is hearsay and should not have been admits ted, but the error is not ground for reversal when the decree is justified by other evidence,</p> <p>Woodward, J., dissented.</p>

Appeal by' the defendant, Gertrude Burt, from, an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Rockland on the 1st day of April, 1912, denying the defendant’s motion to change the place of trial from the county of Rockland to the county of Nassau.

<p>' Mew York city — change of grade of street — facts considered by commissioners in making award — damages to adjoining property — impairment of access.</p> <p>In some eases an award less than the amount of damages testified to by any of the experts called either by the property owner or the city of Mew York, made by commissioners appointed pursuant to Laws of 1901, chapter 466, section 980, as amended by Laws of 1906, chapter 658, section 8, and Laws of 1909, chapter 394, section 3, may be sustained where it satisfactorily appears that the commissioners acted in reliance upon their own view of the premises, made at or about the time when the award was made, and the result does not seem inequitable. But when improper rules have been adopted in arriving at the amount of damages, such variance will afford strong ground for presuming that such adoption has affected the result.</p> <p>The statute does not by express words limit its provisions to buildings abutting upon the street to be graded, and it is not necessary that actual physical injury should result.</p> <p>Hence, the award of commissioners should not be affirmed where they have failed to consider the effect of a change of grade upon buildings adjoining- those abutting upon the street. ■</p> <p>The.fact that there is one way of- access to adjoining buildings does not prevent compensation for the impairment of another way, provided it results in injury.</p> <p>Commissioners are required to estimate the damage as it exists at the time of making them report, unaffected by contingencies which may never arise.</p> <p>Hirschberg-, J., dissented in part.</p>

<p>Contract — municipal contract — grading street — measurement of embankment.</p> <p>A contract with the city of New York for the regulating and grading of a certain street provided that the contractor should be paid “For all embankment, in excess of excavation per cubic yard, the sum of Ninety cents ($0.90),” and that “ no allowance will be made the Contractor for any shrinkage, sinking or settlement.”</p> <p>The assignee of the contractor, claiming that in constructing an embankment across a marsh, the contractor used 85,494% cubic yards of material “in excess of excavation," and the engineer having refused to allow the claim, brought an action against the city to recover therefor at the rate of ninety cents per cubic yard.</p> <p>The question arose as to the interpretation of the provisions of the contract and specifications governing the method of measurement of the material used to form the embankment. The plaintiff claimed that the measurement for purposes of payment should be from the bottom of the embankment, where it foúnd a firm base, to its top, where it reached the general grade of the street, while the city engineer certified only to ■a measurement of the embankment from the former surface of the marsh to the grade of the street as completed. Provisions of the contract and specifications examined, and</p> <p>Held, that the construction placed upon them by the engineer was correct and that the plaintiff could not recover for filling which sank below the marsh level.</p>

Appeal by the defendant, Thomas Finucan, Jr., from a judgment of the County Court of Nassau county, entered in the office of the clerk of said -county on the 13th day of November, 1911, modifying and affirming a judgment rendered against said defendant on the 1th day of October, 1911, by a Court of Special Sessions in the town of Hempstead, Nassau county, New York, convicting him of the crime of assault in the third degree, with notice of - an intention to bring up for…

Appeal by the defendant, The New York and New Jersey Telephone 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 20th day of October, 1911, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant,. Elizabeth A. Hughes, individually and as administratrix, etc., of John J. Hughes, deceased, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 13th day of November, 1911, upon the decision of the court rendered after a trial at a Special Term of said County Court.

Appeal by the■ plaintiff, Wan' Winter, 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 21st day of Wovember, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Kings County Trial Term.

Appeal by the relator, Sadie Wilson, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of March, 1912, dismissing a writ of habeas corpus and remanding the relator to custody.

Appeal by J. Ward Hamblett, Jr., from 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 12th day of December, 1911, requiring him to complete his purchase of certain real estate.

Appeal by the plaintiff, John J. Hopper, from a judgment of the Supreme Court in favor of the defendants, entered in in the office of the clerk of the county of Kings on the 25th day of April, 1912, upon the decision of the court rendered after a trial at Special Term.

Appeal by the defendants, the New York Christian .Missionary Society and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 3d day of November, 1911, upon the decision of the court rendered after a trial at the Chautauqua Special Term.

<p>Appeal by the plaintiff, the Columbia Distilling Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 16th day of November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Railroad — negligence —injury to person riding on pass — exemption from liability — exemption not effective as against employees — Interstate Commerce Act—manager of traffic association is employee — Barnes Act, application — facts justifying finding that plaintiff was traveling on business of railroad — evidence — expert opinion — harmless error.</p> <p>While a passenger on a railroad riding gratuitously on a pass which, by its terms, relieves the railroad from liability for negligence, cannot recover for personal injuries received during a collision, yet he may recover if he is an employee of the raihoad and the pass was delivered pursuant to the contract of employment.</p> <p>Under the latter circumstance the pass is not free but founded upon a good consideration, and the railroad has no right to insert a clause . exempting it from liability for negligence, that being against public policy.</p> <p>It seems, that the amendment to the Interstate Commerce Act prohibiting a .comm on carrier from issuing an interstate free pass except to employees . and their families, etc., applies even to prior existing contracts for carriage which were valid when made.</p> <p>It will be presumed that a pass was issued and used lawfully pursuant to the Interstate Commerce Act rather than in violation thereof.</p> <p>The chairman and executive head of an unincorporated association, supported by the contributions of many railroad companies, and organized for the purpose of classifying and adjusting freight rates for their common benefit, who received a fixed salary, expenses, and was to be furnished with annual transportation overall the railroads represented, is an employee of the railroads. When injured through the negligence of one of the railroads while traveling on a pass issued by it he may recover, although the pass in express terms exempted the railroad from liability.</p> <p>It seems, that section 42a of the Railroad Law, commonly called the Barnes Act, is designed to protect only persons actually engaged in operating a railroad, and has no application to the manager of a traffic association who while riding in a ear as a passenger was injured, for he was not exposed to perils incident to the physical operation of the road itself.</p> <p>The jury may find said manáger of the traffic association to have been traveling on the defendants’ business at the time of the injury, although he was riding from his business headquarters to stay two or three days at. a place where his family-was spending the vacation season, and, hence, he may recover,- although his pass provided that it was not good for regular or daily travel between residence and place of business.”</p> <p>In such action it is improper to allow a physician to give an expert opinion as to the disease from which the plaintiff was suffering after the accident if he does not disclose to the jury the facts upon which his opinion is based.</p> <p>But such error is harmless where the physician subsequently testifies that he made other physical examinations of the plaintiff, who stated to bim ' his symptoms, and that his opinion' was based on observation and-personal examination of the plaintiff, etc.</p>

<p>Costs — award of costs by Court of Appeals—practice — entry of final judgment on remittitur — when no power to disallow costs previously awarded.</p> <p>Where the Court of Appeals in its discretion awards or disallows costs its determination applies to costs in that court only.</p> <p>The remittitur of the Court of Appeals is its mandate to the court below and the directions contained therein must be strictly followed in the final judgment which is to make the decision effective.</p> <p>Where the remittitur of the Court of Appeals affirms in part and reverses in part the judgment in a suit in equity “without costs,” the court below in entering final judgment cannot strike out costs previously allowed in the lower court.</p> <p>If there be any uncertainty as to the effect of language employed in a remittitur of the Court of Appeals, Or if there has been any oversight or inadvertence in its decision, the remedy is lodged exclusively with that court, for its remittitur must be strictly construed.</p>

Appeal by the defendants, Arthur 0. Probst 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 .

Appeal by the defendants, Charles M. Crouse and others, from an order of the Supreme Court, made at the Oneida Special .Term and entered in the office of the clerk of the county of Onondaga on the 8th day of February, 1912, denying the said defendants’ motion, to have the court pass upon certain proposed findings of fact and law.

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the County Court of Oswego county in favor of the plaintiff, entered in the office of the clerk of said county on the 13th day of March, 1911, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 16th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Incompetent person—application to compel committee to pay debts.</p> <p>An application by a judgment creditor of an incompetent for an order compelling the committee of the incompetent to pay a judgment, although entered more than ten years prior to the date of the application, should be granted, where it appears that the committee has sufficient funds, that no payments on the judgment have been made, and that there are no other claims.</p>

<p>Appeal by the defendants, The Buffalo Loan, Trust and Safe Deposit Company and others, from a judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 15th day of January, 1912, upon the decision of the court rendered after a trial at the Erie Special Term.</p> <p>Also an appeal by the plaintiff, Harlow W. Bailey, from so much of said judgment as awards to the defendant, The Buffalo Loan, Trust and Safe Deposit Company, a certain sum by way of commissions, and also from so much of said judgment as allows costs to certain of the defendants; also from that part of the judgment which allows to the plaintiff and adjudges that the defendant trust company pay to him only five per cent interest from July 1, 1911, on the sum adjudged by the said judgment to be paid to him by the defendant trust company, instead of six per cent.</p> <p>The controversy is over a certain clause of the will of Daniel E. Bailey, late of the city of Buffalo, Erie county, deceased, which is attacked upon the ground that it violates the statute against perpetuities.</p> <p>The will, after directing the payment of the testator’s debts and making provision for his wife and sister, provides by the clause in question as follows:</p> <p>“Fourth. I direct that bonds of the Toledo Consolidated Street Railroad to the amount of Sixty Thousand Dollars be deposited in trust with the Buffalo Loan, Trust and Safe Deposit Company of Buffalo, N. Y., as trustees, and in case at the time of my decease, I should not be possessed of the above bonds, then the same amount in cash or other good securities be placed in the hands of said Buffalo Loan, Trust and Safe Deposit Company, as a trust fund, the income of which, after paying the expenses of such trust, I direct to he paid as follows: Fifty dollars permonth to my brother, Alanson C. Bailey, of Toledo, Ohio, during his natural life; Thirty dollars per month to Mrs. Mary A. Swain, of Buffalo, N. Y., during her natural life, and the remainder of said income to my son, Harlow W. Bailey, during his natural life, or until the trust shall terminate, as hereinafter stated. And in case of the death of either my said brother, Alanson 0. Bailey, or Mrs. Mary A. Swain, then their proportions of said income shall be paid to my said son Harlow W. Bailey, and in case of the death of my said son Harlow W. Bailey, then I direct that his share of said income shall be added to the principal sum of said trust. The principal of said trust fund of Sixty Thousand Dollars, I direct to be held in trust by the said Buffalo Loan, Trust and Safe Deposit Company for the children .of my said son, Harlow W. Bailey, and I direct that each child of my said son Harlow W,. Bailey, shall have and receive his or her proportion of said trust fund upon his or her arriving at the age of twenty-one years, and then to take such proportion of said principal sum as the number of children then living and minors, shall bear towards the principal sum then undivided, so that if there be three children living when the oldest becomes twenty-one years of age, such oldest child shall receive one-third of said principal sum of said trust fund, and if another child shall be born after the oldest child has become twenty-one years of age, and shall have received his or her proportion of said trust fund, then the second child shall, upon becoming twenty-one years of age, have and receive one-third of the remaining principal of said trust fund.</p> <p>“And in case there be no children of my said son, Harlow W. Bailey, living at the time of my decease, or in case the children then living shall die before arriving at the age of twenty-one years, then I direct that the trust hereby created shall continue for twenty-five years from the date of this will, and if at that time there be no children of my said son, Harlow W. Bailey, living, I direct that the trust hereby created shall céase and be determined, and I hereby direct that the principal of said trust fund shall then be paid to my said son, Harlow W. Bailey, and the same shall be his property absolutely, and forever, and if at that time my said son Harlow W. Bailey shall not be living, then I direct that the principal of said trust fund shall be divided and paid over, share and share alike to the heirs of my said sister, Caroline E. Blair, of Madison, Ohio. But if there be a child of my said son, Harlow W. Bailey living twenty-five years from the date of this will, though born after my decease, then said trust hereby created shall continue for the benefit of such child.”</p> <p>Then follows the general residuary clause under which the plaintiff claims, as follows: “All the rest, residue and remainder of my estate, whether real or personal, I give, devise and bequeath to my said son Harlow W. Bailey.”</p> <p>The will appoints the plaintiff and the defendant trust company executors of the will. It is dated February 16,1894, and was probated March 22, 1894, the testator having died March 3, 1894. The plaintiff and the trust company qualified as executors and acted as such until on or about January 23, 1899, when they were discharged by a decree of the Surrogate’s Court of Erie county, the plaintiff in conjunction with the trust company having theretofore set aside and turned over to the trust company the $60,000 in bonds referred to in the will, in accordance with the provisions of the 4th clause, and the income has been distributed by the trust company without objection, as therein provided, until the validity of the clause in question was challenged by the commencement of this action, in May, 1911.</p> <p>The judgment declares that the clause in question attempts to suspend the absolute ownership and power of absolute alienation of the personal property therein referred to as a trust fund for a period beyond the determination of two lives in being at the death of the testator, and is illegal and .void; and adjudges the said fund to be the property of the plaintiff, the residuary legatee under said will, and directs the payment thereof to him, after making certain deductions and the payment of costs and certain allowances.</p>

Appeal by the defendant, Elbert Hubbard, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of January, 1912, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, the Utica Gas and Electric Company, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 14th day of August, 1911, upon the decision of the court rendered after a trial at the Oneida Special Term. , This is an action in equity commenced on the 12th day of November, 1910, to compel the continued specific performance by the defendant of two certain contracts during the…

Appeal by the defendants, The City of Buffalo 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 Erie on the 10th day of October, 1910, upon the decision of the court, rendered after a trial at the Erie Special Term, awarding a mandatory injunction and damages, and also from an order entered in said clerk’s office on the 20th day of January, 1908, substituting the present plaintiffs in the place of…

<p>Decedent’s estate — decree of Surrogate’s Court determining the ownership of fund — appeal by administratrix.</p> <p>A creditor appointed administratrix of an intestate is hot a “party aggrieved ” by a decree of the Surrogate’s Court directing the residue of the estate to be paid to the next of kin instead of to an illegitimate son of the intestate who claimed the whole residue by virtue of an alleged gift and, hence, cannot appeal from said decree.</p> <p>Nor has such administratrix a right of appeal on the theory that she is trustee for the son under the alleged gift, for, even if the gift were established, the trustee would have no direct personal interest in the disposition of the fund, that being a matter of concern to the cestui que trust only.</p> <p>In any event the administratrix cannot appeal from said decree in- a representative capacity only.</p>

<p>Appeal by the plaintiff, the Buffalo Electro-Plating Company, from an order of the ¡Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of' Erie on the 22d day of August, 1911, vacating and setting aside the service of a summons in the action.</p> <p>The motion was made by the defendant upon the ground that the plaintiff’s attorney had not proper authority for bringing the action.</p>

Appeal by the plaintiff, John M. Provoost, as ancillary administrator, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 15th day of April, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Erie Trial Term.

Appeal by the defendants, Alan 0. Fobes, as mayor, etc., and others, constituting and composing the board of contract and supply of the city of Syracuse, N. Y,, from an order of the Supreme Court, made at Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 26th day of July, 1910, granting a peremptory writ of mandamus, and also from a judgment of the Supreme Court in favor of the relator, entered in the said clerk’s office on the…

<p>Habeas corpus — answer to return not supported by evidence — appeal — stipulation as to facts made after appeal brought — constitutional law — statute prohibiting unlawful assessments for fraternal associations.</p> <p>Section 2039 of the Code of Civil Procedure, providing that a prisoner produced upon the return to a writ of habeas corpus may controvert the return, etc., does not authorize the Special Term to accept as true statements of fact contained in his answer to the return without evidence to support them.</p> <p>Where the relator on habeas corpus gave no proof of allegations in his answer to the return in the court below, the Appellate Division will consider the case as if disposed of upon the return alone and will not give effect to a stipulation made since the appeal was brought to the effect that the relator’s allegations of fact are true.</p> <p>Hence, a person imprisoned for a violation of section 936a of the Penal Law forbidding the levying of unlawful dues or assessments in fraternal associations does not raise the question of the constitutionality 'of said section as impairing the obligation of contracts by a mere allegation in an answer to the return stating “ That an agreement has teen entered into in writing between your-relator and said Order,” as such allegation does not show that the contract was made before the statute was enacted.</p> <p>The Legislature, under its authority to regulate the business of life insurance in this State, whether carried on by domestic or foreign corporations, individuals or associations, has power to enact the section aforesaid.</p>

<p>Insurance" — delivery of life insurance policy by agent with knowledge that applicant is ill — waiver binding upon insurer — conflict of laws — trial — erroneous nonsuit.</p> <p>Where an application for Ufe insurance was made when the applicant was in good health, but two days thereafter he became ill with the grippe, and the agent of the insurer, having made inquiries as to the health of the .applicant and being informed that he was ill with said disease but that it was not considered serious, there being no concealment, delivered the policy and received the premium, the beneficiary may recover from the insurer, although the insured died of complications following the illness. This is true, although the policy provided that it should not take effect “ unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been issued during my continuance in good" health,” and also provided “ Agents are not authorized to modify this policy or to extend the time for paying a premium.” '</p> <p>The above rule obtains in this State and will be followed by our courts, . although there is a contrary ruling by the Supreme Court of the United States.</p> <p>In an action to recover on said policy the beneficiary is not under the burden of showing that the insured was in "good health within the meaning of the policy at the time the first-premium was paid. By proving the issuance and delivery of the policy and the payment of the first premium, together with compliance with the terms of the policy in respect to proofs of death, she made out a prima facie case.</p> <p>In an action on said policy it is error to grant a nonsuit at the close of plaintiff’s case where the answer alleged that the defendant tendered hack the premium received and renewed said offer, as there was no proof of such tender and the record showing no offer to return the premium it is presumed that defendant retained the same, so as to be estopped from claiming that there was no contract.</p>

Appeal by the plaintiff, The People of the State of New York, from a-judgment and order of the County Court of Saratoga county rendered on the 21st day of November, 1911, sustaining the defendant’s demurrer to an indictment.

<p>State—injury to lands caused by insufficient canal culvert—proof justifying recovery.</p> <p>Action against the State brought in the Court of Claims to recover for injuries .to lands by the waters of a stream which backed up owing to the alleged insufficiency of a culvert maintained by the State beneath the Champlain canal. Evidence examined, and held, that the culvert as originally constructed was not sufficient to carry off waters resulting from rainfalls which might reasonably be anticipated, and that, in addition, the culvert had been allowed to become obstructed by a stump so that the claimant was entitled to recover his reasonable damages.</p>

<p>Will construed—devise with power to sell lands for support—when remainderman takes purchase-money mortgages given upon sale. .</p> <p>Under a will wherein a testator stated “I * * * give and bequeath to my wife aforesaid the use of all my real estate during her natural life and if at any time she thinks more is necessary for her support than the above bequest then she may have the exclusive right to sell and dispose of a portion of said real estate, or so much of same as she may consider necessary * * * leaving all with her to do as she deems best,” with a gift to an adopted daughter of all lands which may remain undisposed of by the wife at the time of her decease, the daughter, upon the happening of the latter event, is entitled to purchase-money securities which the widow accepted in part payment for the sale of lands.</p> <p>The representatives of the deceased’s widow should not be allowed to administer said securities so as to be entitled to commissions thereon; but if any portion of the securities represent income that had accrued which belonged to the widow’s estate, her representatives should be given an opportunity to show the amount thereof.</p> <p>Houghton and Lyon, JJ., dissented, with opinion.</p>

<p>Boarding house keeper—liability for clothing alleged to have been stolen — evidence — guaranty—negligence.</p> <p>In an action by a roomer against the keeper of a rooming house to recover the value of clothes alleged to have been stolen from a locker adjoining his room, it appeared that the plaintiff hired the room and paid a deposit; that the next morning he appeared with a suitcase, and he testifies that he asked the defendant, “ Where can I put my clothes ? ” and that she said, “You can put them in the back locker; ” that he asked her, “ Are those clothes secure ?” that she replied, “Mr. Mahr, I guarantee you for that.” Plaintiff’s room had a lock and contained sufficient hooks for his clothes. The guaranty was absolutely denied by the defendant, and also any knowledge on her part or her daughter’s that the plaintiff’s clothing was in the locker. The questions of guaranty and of whether the defendant was negligent or not in caring for the clothes were submitted to the jury.</p> <p>Held, that a verdict for the plaintiff should be reversed because the weight of evidence was in favor of the defendant, and because there was no question of negligence pleaded or proved.</p> <p>There was no new consideration for the alleged contract of guaranty, hence it was not enforcible.</p>

Appeal by the petitioner, William W. Farley, as State Commissioner of Excise, from so much of an order of the Supréme Court, made at the Albany Special Term and entered in the ' office of the clerk of the county of Albany on the 13th day of November, 1911, as denied an application to revoke a liquor tax certificate because of a violation of subdivision E of section 30 of the Liquor Tax Law.

Appeal by the plaintiff, Mary Clara Wilcox, from an order of the Supreme Court, made at the Onondaga Trial Term and entered in the office of the clerk of the county of Onondaga on the 1st day of March, 1910, granting the defendant’s motion to set aside a verdict in favor of the plaintiff and for a new trial made upon the minutes. This case was transferred from the Fourth Department to the Third Department of the Appellate Division.

Appeal by the defendant, the Chasm Power Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Franklin on the 11th' day of July, 1911, upon the decision of the court, rendered after a trial before the court without a jury at the Franklin Trial Term, awarding a permanent injunction against the defendant.

Appeal by the defendant, Eugene Van Wagenen, town clerk, etc., and others, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Ulster on the 23d day of December, 1911, directing the counting of certain ballots upon the question of local option rejected by the board of inspectors as void.

Appeal by the plaintiff, Frank G-. Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 2d day of October, 1911, upon the decision of the court, rendered after a trial before the court without a jury at the Albany Trial Term, dismissing the complaint upon the merits.

<p>Public health — revocation of dentist’s license—fraud in preliminary examinations — hearing by Board of Regents—“unprofessional or immoral conduct ” — criminal prosecution unnecessary — notice and hearing — procedure for revocation of license — due process of law.</p> <p>Where the Board of Dental Examiners finds that a dentist procured his license by fraud, and that his affidavit that he passed the preliminary examinations was false, in that he had procured another to impersonate him on such examinations, and they recommend the revocation of his . license to the Board of Regents, that board must grant a hearing, as to the punishment to be inflicted, it having the power to follow or rej ect the recommendation of the trial board. A refusal to grant such hearing is reversible error.</p> <p>The practicing of fraud in the procuring of a license to practice a profes-' sion is “unprofessional or immoral conduct” within the meaning of section 201 of the Public Health Law and is ample ground for the revocation of a license.</p> <p>Power to revoke a license exists without prosecution and conviction of a criminal offense.</p> <p>A licensee should be given notice of the presentation of charges against ■ him and accorded an opportunity to be heard concerning them.</p> <p>The proceeding for the revocation of a license may be summary and not subject to the strict rules of evidence; but the board while acting in such capacity is quasi judicial in character and so meets the constitutional requirement, if there be any necessity therefor, of according the licensee due process of law in the revocation of his license.</p> <p>Smith, P. J., and Kellogg, J., dissented.</p>

Appeal by the plaintiff, Effie M. Ainsworth, as administratrix, etc., from a judgment of the Supreme Court in favor of the défendant, entered in the office of the clerk of the county of Albany on the 9th day of Hay, 1911, upon the dismissal of the complaint at the close of plaintiff’s case by direction of the court on a trial at the Albany Trial Term, and also from an order entered in said clerk’s office -on the same day, directing the dismissal of the complaint.

Appeal by the plaintiff, Willard E. Clarke, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 27th day of December, 1910, upon the decision of the court rendered after a trial at the Albany Special Term.

Appeal by the plaintiff, Orville C. Bucher, 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 Chemung on the 28th day of November, 1910, upon the decision of the court, rendered after a trial at the Chemung Trial Term, certain questions of fact having been submitted to a jury, dismissing the complaint on the merits; and also from an-order entered in said clerk’s office on the 18th day of November,…

<p>Master and servant — negligence — Labor Law — fall from ladder not properly placed — ladder, when “ways.”</p> <p>A ladder about twelve feet long, securely made, was placed so that one end rested against the top of a dredge and the other upon the ground about six feet from the dredge. The ground was so uneven that a block was placed under one leg of the ladder. There was no fastening at the top or bottom of the ladder, and it had been used in the same place for a week or two by from fifty to one hundred men going to and from their work on the dredge.</p> <p>The plaintiff was directed by the defendant’s foreman to go upon the dredge and do some caulking. When descending with his tools the ladder slipped from the block at the bottom and plaintiff jumped of fell backwards when he was about eight feet from-the ground and sustained injuries for which he sues the defendant.</p> <p>Held, that upon the evidence the jury would have been justified in finding that the defendant did not furnish a ladder so placed as to give protection to the life and limb of its employee as provided by section 18 of the Labor Law, and it was error to dismiss the complaint;</p> <p>That the ladder having been used in the same place and in the same position for one or two weeks for the defendant’s employees to pass from the ground to their work, it might have been considered a part of the “ways” of the defendant under section 300 of the Labor Law. Houghton and Betts, JJ.,"dissented.</p>

Cross-appeals by the plaintiff, George S. Kidder, and the defendants, Port Henry Iron Ore Company of Lake Champlain and another, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Essex on 24th day of August, 1911, granting the defendants’ motion to strike out parts of the third amended complaint, and denying their motion that the same be made more definite and certain as to some of the allegations.

Appeal by the plaintiff, Celia Mtifphy, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 28th day of June, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Washington Trial Term.

Cross-appeals by the plaintiff, William E. Murphy and the defendant, the John Hofman Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 4th day of December, 1911, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the defendant, Bertha L. Weisburg, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the .26th day of December, 1911, affirming a judgment of the City Court of Albany in favor of the plaintiff.</p>

<p>• Appeal by the defendants, Herbert F. Stanley 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 Warren on the 21st day of November, 1911, upon the decision of the court rendered after a trial at the Warren Special Term.</p>

Appeal by the claimant, Charles A. Johnson, as executor, etc., from a judgment of the Court of Claims of the State of New York, entered in the office of the clerk of said court on the 7th day of June, 1909.

Appeal by the claimant, the United States Badiator Corporation, from a judgment of the Court of Claims of the State of New York,' dated the 9th day of January, 1911, and entered in the office of the clerk of said court dismissing the appellant’s claim.

A ppm at, by the defendant, Annie B. Cavanaugh, individually and as executrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rennselaer on the 23d day of January, 1911, upon the decision of the court rendered after a trial at the Rensselaer Trial Term, certain questions having been submitted to the jury, and also from an order entered in said clerk’s office on the 20th day of February, 1911, denying…

Appeal by the plaintiff, William E. Young, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 7th day of February, 1912, upon the report of a referee dismissing the plaintiff’s claim.

Appeal by the defendant, the Glens Falls Gas and Electric Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 31st day of October, 1911, upon the verdict of a jury for $500, and also from an order' entered in said clerk’s office on the 28th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Village of North ville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 13th day of January, 1911, upon the verdict of a jury for $300, and also from two orders entered in said clerk’s office on the same day, one denying the defendant’s ■ motion for a new trial made upon the minutes, and the other granting the plaintiff an extra allowance of costs.

Appeal by the plaintiff, Bellman and Sanford, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 14th day of November,, 1911, affirming a judgment of the City Court of Albany in favor of the defendant, which dismissed the complaint.

Appeal by the defendant, Benjamin E: Valentine, from a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county of Queens on the 10th day of March, 1911, upon the decision of the court rendered after a trial at the Queens County Special Term.

Appeal by the defendant, the American Sugar Refining Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of December, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 5th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Alexander J. McCollum, 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 13th day of September, 1911, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 12th day of September, 1911, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Long Island Railroad Company, from so much 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 3d day of April, 1912, as denies plaintiff’s motion for permission to enter immediately upon the real property sought to be condemned in this proceeding.

Appeal by the relator, Edward Lindgren, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of April, 1912, denying a motion for a peremptory writ of mandamus.

Appeal by the defendant, the Yonkers-Garden City 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 Nassau on the 26th day of Hay, 1911, upon the decision of the court rendered after a trial at the Nassau Special Term.

Appeal by the defendant, Edna N. Ullman, 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 25th day of July, 1911, upon the decision of the court rendered after a trial at the Richmond Special Term, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion to be given the custody and care ¿f the child of the parties to this proceeding.

Appeal by the defendant, the New York Military Academy 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 Orange on the 2d day of January, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 5 th day of February, 1912, as resettled by an order entered in said clérk’s office on the 10th day of February, 1912, denying the defendants’ motion for…

Appeal by the defendant, Welz and Zerweck, 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 13th day of January, 1912, 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 January, 1912, denying the defendant’s motion for a new trial made upon the minutes.

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

Appeal hy Rose Abraham and others, as executors, etc., of Ahraham Abraham, deceased, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 23d day of December, 1911, fixing the transfer tax upon the property of the deceased, and also from an order of said court, entered on the 8th day of March, 1912, affirming said order of assessment.

<p>Eminent domain—condemnation for additional water supply, city of Mew York—allowance of counsel fees to landowner — statute construed — amount of fees allowable.</p> <p>Under the statute authorizing the city of New York to condemn lands to provide for an additional water supply, the court has power to make an allowance for counsel fees in excess of $3,000 to an owner whose lands have been taken and who has appeared in the proceeding to protect his rights.</p> <p>The first part of section 33 of the so-called Water Supply Act relates to the counsel fees incurred by landowners whose property is sought to be acquired, while the latter part relates to the fees of counsel designated to appear for the city.</p> <p>An award of counsel fees to landowners is not restricted to the award to the guardians of incompetent persons or attorneys appointed by the court to protect the interests of parties who have not appeared as provided for in section 13 of the statute.</p> <p>The provisions of said statute relating to counsel fees are not affected by chapter 725 oí the Laws of 1905 which is not in express terms either amendatory or supplementary thereto and which does not work a repeal by implication.</p> <p>While section 33 of the Water Supply Act, relating to counsel fees, provides that the allowance shall not exceed the limits prescribed by section 3353 of the Code of Civil Procedure, which is five per centum upon the sum recovered or claimed, etc., the following section of the Code, limiting the aggregate to $3,000, is not applicable and an amount in excess of said sum may be allowed.</p> <p>Hirschberg, J., dissented.</p>

Appeal by the City of New York from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of September, 1911, granting a peremptory writ of mandamus directing commissioners of appraisal in this proceeding to convene and hear certain testimony and to determine certain claims for damages.

Appeal by William J. Dreeland 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 18th day of April, 1912, enjoining the appellant from trafficking in liquors at 1Y1 Myrtle avenue, Brooklyn, New York. This proceeding was instituted pursuant to section 28 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1909, chap. 281).

<p>Eminent domain — failure of defendant to answer in condemnation proceedings—award of immediate possession unauthorized.</p> <p>Where the defendant in a proceeding to condemn land for railroad purposes has appeared but failed to answer and a judgment of condemnation has been entered, it is the same as though an answer had been interposed and a trial had of the issues raised.</p> <p>But where the defendant failed to answer, the court is without power to award the condemnor immediate possession on giving security, pursuant to section 3380 of the Code of Civil Procedure.</p> <p>Section 3380 of the Code of Civil Procedure provides only for cases in which an answer has been interposed.</p> <p>Hirschberg, J., dissented.</p>

Appeal by the relator, McWalter B. Sutton, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of March, 1912, dismissing a writ of habeas corpus.

<p>Corporations—lease between street railway corporations — action by lessee for breach of contract by lessor to advance funds — accord and satisfaction — demand — admissions by answer—validity of contract between two corporations executed by common officers —ratification of voidable contracts — fraud—mistake — pleading accord and satisfaction— executory contract —matter in defense or avoidance deemed controverted—findings of referee — evidence or defense available in suit in equity competent in action at law—interest—common-law rule.</p> <p>The defendant, a street railway corporation, while engaged in converting its road into an electric system, leased it to the plaintiff, another corporation, under an agreement whereby the plaintiff was to continue the work of conversion, and the defendant was to issue and dispose of a certain amount of its capital stock and bonds at the request of the plaintiff to defray the expense of conversion. The plaintiff was to deposit $4,000,000 upon the transfer of-the property as a guaranty for the performance of the lease. This action was brought to recover an alleged unexpended portion of $6,000,900, which the defendant agreed to furnish for conversion purposes.</p> <p>The defendant claimed that a, tripartite agreement executed by certain officers of the Long Island Traction Company, of the plaintiff and of the</p> <p>• defendant constituted an accord and satisfaction of every matter upon which the plaintiff relied to sustain its recovery.</p> <p>Held, that there was no accord and satisfaction, since the officers of the plaintiff who executed the agreement were largely interested in the stock of the defendant, and that their illegal acts have not been ratified by stockholders or otherwise validated, and that, since there had been no general accounting between the parties, the agreement did not constitute a final settlement;</p> <p>That since the plaintiff’s claim was unliquidated an award of interest thereon was improper and should be deducted from the recovery;</p> <p>That the foreclosure of a mortgage executed by the plaintiff to procure money for conversion purposes did not divest the plaintiff of its cause of action.</p> <p>A demand or request by the plaintiff for an advancement of money to carry on the work of conversion before bringing the action was unnecessary, since the plaintiff was under the control of officers and directors acting for the defendant, and since the answer admitted the making of a demand and the evidence showed that a demand would have been useless.</p> <p>The admission by the defendant in its answer that the defendant made a demand for further advancements was conclusive, notwithstanding the referee found that no demand was made.</p> <p>The defendant was not entitled to deduct from the $6,000,000 the money expended between the time the lease was executed and the time of its taking effect.</p> <p>Since the officers of the lessee were largely interested in the stock of the lessor and would be greatly benefited by a default in the performance of the lease, it was improper for them to be active in the control and management of the lessee, even though there was no suggestion of actual fraud.</p> <p>The stockholders of a corporation may ratify an act which they or the corporation might avoid; but the act of ratification must be founded upon knowledge of the situation or upon acquiescence in the action after knowledge or in the retention of benefits derived from the voidable action. Where no public interest is involved, ratification may be inferred from circumstances.</p> <p>To constitute an accord and satisfaction it must appear that the parties intended to make a settlement of claims either admitted or in dispute.</p> <p>' If the partios reach a conclusion upon such question and the same is founded upon a good consideration and is subsequently executed by performance, the transaction wiil be upheld as a valid accord and satisfaction. As such settlement is mutual it must operate in binding force upon the parties to it.</p> <p>An agreement procured by fraud, or executed under a mutual mistake of fact, cannot operate as an accord and satisfaction.</p> <p>Where the facts constituting an accord and satisfaction are pleaded, effect should be given thereto, although the instrument is not expressly designated an accord and satisfaction.</p> <p>Where a "party relies upon an executory contract to support a cause of action or sustain a defense he is required to allege and prove fulfillment upon his part of the covenants which he was obligated to perform.</p> <p>Matter set up by a defendant by way of defense and avoidance is deemed controverted by the plaintiff without affirmative pleading.</p> <p>Admissions in pleadings need not be made part of the findings of a referee. The findings of a referee upon any issue not referred to him, are without force and effect.</p> <p>Any defense and any evidence which would be available to defeat and set aside an instrument in a suit in equity is equally available when the same instrument is set up as a defense in an action at law.</p> <p>The common-law rule that interest is not allowed unless the amount of the principal is actually ascertained and liquidated has been modified so that, if the amount due is capable of being ascertained by mere computation, the allowance of interest is proper.</p>

<p>Foreclosure—burden of proof — failure to prove ownership.</p> <p>A plaintiff suing to foreclose a mortgage must prove his ownership of the bond and mortgage in order to recover.</p> <p>Suit to foreclose a mortgage. Evidence examined, and held, that the plaintiff, having assigned the bond and mortgage, failed to establish ownership by virtue of a subsequent reassignment and that the complaint was properly dismissed.</p> <p>Carr and Woodward, JJ., dissented.</p>

<p>Husband and wife — separation agreement — provision in lieu of dower — election between pecuniary provision and dower — rescission of separation agreement — complaint in action for dower.</p> <p>A wife entered into a separation agreement with her husband in and by which he agreed to pay her the sum of $5,200 per annum during her life or until her remarriage, and that he would provide by his will for the payment of said sum to her yearly after his death if she survived him. The wife covenanted that at the request of her husband she would unite with him at any time in the execution of deeds of any real property he then owned or might thereafter acquire, “without compensation or payment other than hereinbefore provided,” and such covenant, with all other provisions of the agreement, is to apply to and be binding upon the heirs, etc., of the parties. The husband executed his will pursuant to the agreement.</p> <p>Held, that the agreement extinguished the wife’s right of dower;</p> <p>That the wife, having received and retained the pecuniary provision provided in the agreement for a period of six years, and not having returned or offered to return the same, elected to accept it in lieu of dower.</p> <p>A wife, when asking for the rescission of such a contract must, as a condition precedent, return or offer to return any balance of such payments remaining in her hands unexpended for her support, or allege extraordinary circumstances excusing such return.</p> <p>Complaint alleging fraud in the execution of a separation agreement and claiming dower, examined, and held, to be insufficient.</p> <p>Motion for leave to appeal to Court of Appeals denied.</p>

Appeal by the plaintiff, G-jemld Olsen, from a judgment of the Supreme Court in favor of the defendant Edward Roche, entered in the office of the clerk of the county of Kings on the 24th day of November, 1911, pursuant to an order made at the Kings County Special Term and entered in said clerk’s office on the 22d day of November, 1911, dismissing the complaint upon the merits as to said defendant, and also from the said order directing the dismissal of the complaint.

<p>Husband and wife — disorderly person — abandonment — evidence.</p> <p>Proceeding to adjudge a husband a disorderly person in having abandoned his wife and child.. Evidence examined, and held, insufficient to sustain a finding that the husband neglected to support his wife and child, or that they were in danger of becoming a burden upon the public.</p> <p>Carr, J., dissented.</p>

Appeal by the defendant, Buckley Newhall Company, from a judgment of the Stipreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 24th day of November, 1911, upon the verdict'of .a jury for $1,000, and-also from an order entered in said clerk’s office on the 29th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by'the defendant, Laura Biggar, 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 April, 1910, upon the verdict of a jury for $75,000, which was reduced by stipulation of the plaintiff to $50,000, and also from an order entered in said clerk’s office on the 5th day of April, •1910, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Margaret Matthews, 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 27th day of May, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the same day dismissing the complaint upon the merits.

Appeal by the defendant, Thomas G-. Ellsworth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of June, 1911, upon the report of a referee.

<p>Appeal by Minnie R. Kallman, as receiver, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 16th day of February, 1912, denying an application for an order to compel one Madalena Sisia to turn over the sum of $180, being the rent of certain premises.</p>

Appeal by William Sohmer, 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 21st day of February, 1912, modifying and amending an order of said court entered on the 16th day of June, 1911, fixing and assessing a transfer tax.

Appeal by the relator, Arthur E. Keating, 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 Queens on the 22d day of April, 1912, denying the relator’s motion for a peremptory writ of mandamus commanding the respondent to accept payment of certain unpaid taxes upon lands described in the petition and to cancel the record of sale of said lands.

<p>Evidence — action on quantum meruit for work, labor and materials — refreshing recollection of witness — method of proof.</p> <p>• In an action to recover on a quantum meruit for work, labor and materials furnished in the moving of certain houses owned by the defendant, the answer put in issue the value of the work and materials sued for and set up the defense of payment. On a trial before a referee it appeared that the plaintiff was not familiar from his own observation with the progress of the work from day to day; that he made entries in his books according to the reports of his men of the amount of time consumed in the work, but did not produce these men as witnesses; that, although he had ho personal recollection of the details of the labor performed and the time consumed, he was allowed to refresh his recollection from an abstract of his book, and that no testimony was given to show that the items of labor performed were necessary and proper.</p> <p>Held, that the plaintiff failed to make out aprima facie case and that his complaint should have been dismissed.</p> <p>A paper which does not contain facts within the original knowledge of the witness cannot be used by him to refresh his recollection.</p> <p>The usual method of proving such a case is to give evidence of the actual work performed, and then expert evidence as to its reasonable value as a whole.</p>

<p>Husband and wife — counsel fees, when allowed — reformation of separation agreement.</p> <p>Although the necessity for granting counsel fees in an action affecting the marital relation must appear, the mere fact that the wife has some money or property under her control, even though it may be sufficient in amount to defray counsel fees if the whole were applied thereto, does not necessarily compel the denial of her application.</p> <p>As the granting of such an application depends upon equitable considerations, all the circumstances should be taken into consideration, not alone the amount of such money and property, but also the reasonably probable claims that may be made thereon, and, under certain circumstances, the source from which it was derived.</p> <p>Evidence examined, and held, that an allowance of counsel fees should be granted..</p> <p>Woodward, J., dissented.</p>

Appeal by the defendant, William Seymour, from a judgment of the County Court of Westchester county in favor of the. plaintiff, entered in the office of the clerk of said county on the 8th day of May, 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, the Bush Terminal Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, .entered in the office of the clerk of the county of Kings on the 24th day of June, 1911, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the 26th day of June, 1911, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Colwell Lead Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of May, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, barring and foreclosing all rights and liens of the appellants in certain mortgaged premises.

<p>Appeal by the defendant, Ealph T. Allcutt, individually and as trustee, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of May, 1912, denying the defendant’s motion for judgment, and also from an order entered in said clerk’s office on the 6th day of May, 1912, resettling the prior order and granting plaintiff leave to file an answering affidavit nunc pro tunc.</p>

<p>Return of a writ of habeas corpus.</p>

<p>Executors and administrators —: failure of executor to appeal’ upon accounting by coexecutors — waiver of right to object to decree — right to commissions.</p> <p>An executor who, although cited, does not appear on an accounting by two coexeeutors until after the report of the referee overruling objections to the account has been affirmed by the surrogate, and then appears upon the settlement of the decree before the surrogate for the sole purpose of securing commissions, although, so far as the record shows, he has not received or disbursed any of the moneys of the estate, is not entitled to open the decree entered upon the report of the referee.</p> <p>Ah executor or trustee is only entitled to commissions upon acting as such in receiving and paying out moneys of the estate.</p>

Appeal by William R. Willcox and others, constituting the Public Service Commission of the State of New York for the First District, as successors to the Board of Rapid Transit Railroad Commissioners, from certain parts of an order of the Supreme Court, ma.de at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of May, 1911.

<p>Railroad — negligence — injury to trespasser crossing tracks — when railroad hot liable.</p> <p>The fact that the employees of a railroad company crossed its tracks at various times to reach the shops where they were employed does not ' create an invitation or license to the public to cross, where there are no Streets intersecting the tracks, nor any highway between the tracks and the company’s shops, which it maintains on its own land.</p> <p>Hence, there can be no recovery for injuries received by a boy who was run down by a railroad train while attempting to cross the tracks, he being a trespasser, if no wanton or reckless conduct bn the part of the defendant’s employees "be shown.</p> <p>Under the circumstances the defendant cannot be held negligent for a failure to maintain a fence between its tracks and a highway running parallel thereto.</p> <p>Under the conditions the railroad had the superior right of way on its tracks, and its employees in operating trains or switching cars were not required to be actively vigilant in discovering trespassers.</p>

<p>Attorney at law censured.</p> <p>Attorney at law severely censured, for certifying to the acknowledgment in this State of instruments signed by persons when they were without the State, and who did not appear before him.</p> <p>The discipline is limited to censure, as under the circumstances there was no intent to injure or defraud,' but if such offense be repeated, the court will act with great severity.</p>

Appeal by the defendant, Frederic J. Swift, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1911, upon the verdict of a jury rendered by direction of the court, arid also from an order entered in said clerk’s office on the 19th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

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

<p>Appeal by the plaintiff, Louis Oppenheimer, 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 April, 1912, vacating an order for the examination of the defendants before trial.</p>

Appeal by John J. Kennedy, State Treasurer of the State 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 a preference to the Treasurer of the State of New York as a depositor in and creditor of the Carnegie Trust Company.

Appeal by the plaintiff, Robert Reis and 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 28th day of October, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.

Appeal by the defendant, 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 22d day of December, 1911, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff.

Appeal by the defendant, 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 22d day of December, 1911, affirming'a judgment of the Municipal Court of the city of New York in favor of the plaintiff.

Appeal by the plaintiff, Mae Weil, 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 .February, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint in an action to annul a marriage, and also from an order entered in said clerk’s office on the 4th day. of March, 1912, denying the plaintiff’s motion for a new trial or…

Appeal by defendant, Patrick A. Whitney, as commissioner, etc., from, an order of the Supreme Court, made at New York Special Term and entered in the office of the clerk of. the .county of New York on the 26th day of April, 1912, granting the relator’s motion for a premptory writ of mandamus.

<p>Appeal by the defendant, Charles Burkelman, individually and as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the comity of New York on the 18th day of March, 1912, granting the plaintiff’s motion for judgment on the pleadings.</p>

Reargument of an appeal by the plaintiff, the Central Trust Company, ■ as trustee, from part of a judgment of the Supreme Court entered upon the report of a referee, and from an order denying a motion for an extra allowance. (See 149 App. Div. 941.) ' •

<p>Appeal by the defendant, James A. Miller, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes;</p>

Appeal by the plaintiff, Anna Bookowitz, an infant, from an order of the Supreme Court, made at the New York Special Term and entered hi the office of the clerk of the county of New York on the 27th day of May, 1912, denying the plaintiff’s motion to strike out an answer as sham or to have the same made more definite and certain.

<p>Contract — agreement by executors holding stock of insolvent company to purchase property thereof.</p> <p>The plaintiffs, as executors, holding and owning certain bonds and capital stock of an insolvent corporation known as the “Fisheries Company,” entered into an agreement in writing with Gustave R Tuska, individually, and with the defendant, a corporation, both of whom also owned bonds and stock in the said company. This agreement contemplated the purchase from the creditors’ committee of said insolvent company of certain property in exchange for their stock and bonds of said company, and provided that the title to the property thus acquired should be taken in the names of James B. Heller and Adolph Hirsch, who had been succeeded by the' defendant, in trust, however, for the three parties to the agreement, whose proportionate interests were therein stated and were approximately three-fifths for the defendant and one-fifth for each of the other parties. The property was to be preserved and managed by the trustees until sold by them or transferred to the parties in interest, or to corporations to be formed for the purpose of disposing of and distributing it to their advantage. It was further provided that the net proceeds of a sale of the property should . be divided among the three parties in proportion to then- holdings of bonds, and that upon demand of the defendant and one of the other beneficiaries the property should be conveyed by the trustees to corporations “to be created for the purpose of distributing the interests of the several beneficiaries, but not to carry on business.” Later a corporation was formed to take over the business and dispose of the property acquired. A sale was effected and a question arose as to the disposition of the proceeds under the above contract and other subsequent agreements between the parties.</p> <p>In an action to recover moneys alleged to have been received by the defendant to. the use of the plaintiffs, contracts construed, and field, that a judgment for the plaintiffs should be affirmed.</p>

<p>Appeal by the defendants, William R. Craig 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 8th day of November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of November, 1911, denying the defendants’, motion for a new trial made upon the minutes.</p>

<p>Appeal.by the defendant, William E. Grace, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’,^ demurrer to the complaint.</p>

<p>Motion to dismiss an appeal or to declare the same abandoned.</p>

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

<p>Pleading — suit for an accounting — complaint—parties defendant — demurrer.</p> <p>Where in a suit to compel individual defendants to account to the plaintiffs for secret profits on the sale of the capital stock of a corporation in which the plaintiffs and one of the individual defendants were stockholders, no misconduct on the part of the purchaser of the stock is alleged other than a general statement that it “is chargeable with knowledge of and responsibility for ” the particular misrepresentations practiced upon the plaintiffs, but the facts upon which this conclusion is based are not stated, and it is not alleged that the purchaser received any of the profits for which the plaintiffs demand an accounting, a demurrer to the complaint by the purchaser should be sustained on the ground that there was no authority for making it a party defendant.</p>

<p>Crime—burglary—witnesses — cross-examination of policeman who arrested defendant and of character witness — evidence — former convictions.</p> <p>Upon .the trial of a defendant for breaking and entering a cigar store and stealing cigars, etc., the testimony of the police officer who made the arrest, that the defendant had his hand upon the shaft of a surrey when he first saw him, was inconsistent with the statement of the officer entered upon the police blotter that both the defendant and B.“were found emerging from the hallway of the Southwest corner of 70th Street and First Avenue with two boxes of cigars, one box of cigarettes and various other things which they could not satisfactorily account for, also one horse and wagon which is apparently stolen.” The only evidence tending to connect the defendant with the burglary was that he ■was in charge of the horse and surrey and that some of the property from the store was found in the surrey.</p> <p>Held, that cross-examination of the officer on this point should have been permitted to a reasonable extent;</p> <p>That it was error for the district attorney upon cross-examination of a character witness to ask her if she knew.that defendant “has lately been associated with a thief named Block,” where the only evidence that B. was a thief was that he had been arrested with defendant, and where it appeared that he had been acquitted.</p> <p>Where a defendant offers himself as a witness, it is competent to show former convictions to discredit his testimony.</p> <p>Where a defendant is indicted for burglary as a second offense, evidence of a former conviction is material on the question of sentence, but is no proof that he committed the burglary in question.</p>

Appeal by the defendant, The Morris European and American Express Company, Limited, 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 28th day of November, 1911, affirming a' judgment of the City Court of the city of New York in favor of the plaintiff, and also affirming an order of said City Court denying the defendant’s motion for a new trial.

Appeal by the defendants, E. Gr. Potter Company 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 19th day of February, 1912, denying the said defendants’ motion to vacate an order for their examination before trial and for the production of books and papers upon such examination.

Appeal by the defendant, the Godwin .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 blew York on the 1st day of December, 1911, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William F. Cannon, 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 1.0th day of February, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.

<p>Contract—time of payment not specified — parol evidence to vary writing.</p> <p>A written agreement, which provides for the performance of certain work to be completed before a certain date, but does not specify the time of payment, constitutes a complete and enforeible contract, and the law declares that payment shall be made upon the completion of the work. Such contract cannot be varied by evidence of an oral agreement specifying a different time of payment. '</p>

<p>Appeal by the plaintiffs, Henry L. Doherty and others, partners, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of June, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer to the complaint.</p> <p>An appeal from an order denying a temporary injunction was argued and is decided herewith (151 App. Div. 942).</p>

Appeal by the defendants, Mary Patterson and another, as administrators, 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 29 th day of April, 1912, denying the defendants’ motion for judgment on the pleadings.

Appeal by the defendant, Daniel Byrne, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of March, 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 defendant, Henry E. L. Buttner, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of March, 1912, granting the plaintiff’s motion for judgment on the pleadings.

<p>Appeal by the petitioner, Carll S. Burr, Jr., from an order of the Surrogate’s Court of the county of Hew York, entered in the office of the clerk of said court on the 9th day of May, 1912, dismissing a petition and all proceedings thereon instituted under section 2621a of the Code of Civil Procedure.</p>

<p>Municipal corporations — certiorari to review trial of member of fire department of New York city — unfair trial.</p> <p>Where on certiorari to review the trial of an honorably discharged soldier and his dismissal from the fire department of the city of Hew York on the ground "that he made a false statement on á former trial, it appears that he was tried before the same deputy who presided at his former trial; that such deputy had personal knowledge of the fact in dispute; that much irrelevant evidence was admitted and some relevant evidence excluded; that the relator’s witnesses were examined and excused in his absence, and that the hostile attitude of the trial deputy pervaded the entire record, the determination should be annulled and a new trial granted before another officer.</p>

Appeal by the defendant, Harry H. Galinger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1912, overruling the defendant’s demurrer to the complaint, and also from an order entered in said clerk’s office on the 29th day of March, 1912, resettling the first order.

Appeal by the plaintiff, Sadie Rosen, 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 15th day of January, 1912, 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, and also from an. order entered in said clerk’s office on the 29th day of January, 1912, denying the plaintiff’s motion for a new trial made upon…

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

<p>Process — subpoena — foreign resident in this State not exempt from service.,</p> <p>Defendant, a non-resident of this State, voluntarily came to the city of New York on October 3,1911, to plead to an indictment against him in the Federal court, and on the same day was served with a subpoena from the Federal court requiring him to testify in the city of New York on October third. He obeyed the subpoena and at the direction of the district attorney appeared again on October fourth, when he was directed to appear again on October eleventh. He then departed from the State, but returned on October eleventh for the sole purpose of obeying the subpoena, and after being excused from further attendance was served with a summons in a civil action.</p> <p>Held, that since the defendant was in this jurisdiction under compulsion by means of a subpoena, he was not exempt from service.</p>

<p>Appeal by the defendant, the New York Press Company, Limited, 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 27th day of May, 1912.</p>

<p>Appeal by the plaintiff, Madison Trust Company, as substituted trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 27th day of December, 1911, upon the decision of the court, rendered after a trial at the New York Special- Term, with notice of an intention to bring. up for review the decision of the court, entered in the office of -the clerk of the county of New York on the 21st day of December, 1911, in so far as that decision constitutes an order in the action.</p>

Appeal by the plaintiffs, Jesse Wassermann 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 21st day of May, 1912.

<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 27th day of June, 1910, confirming the report of commissioners of estimate and' denying a motion to confirm the report of the commissioner of assessment and returning said report to the said commissioner for revision and correction.</p>

Appeal by the plaintiff, The City of Elmira, from a judgment of the County Court of Chemung county in favor of the defen'dant, entered in the office of the clerk of said county on the 28th day of March, 1912, affirming a judgment of the City Court of the city of Elmira dismissing the complaint.

Appeal by the plaintiffs, Frank N. Freeman and another, individually and as executors, etc., from an order of the-Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of St. Lawrence on the 23d day of March, 1912, vacating an injunction theretofore issued herein enjoining the defendant from interfering with certain supports, ladders, etc., during the pendency of the action.

<p>Crime — assault, third degree — waiver of trial by jury — consent to trial by five jurors — finding by court.</p> <p>Where a defendant charged with the crime of assault in the third degree elects to be tried by a Court of Special Sessions, and consents to a trial by five jurors, he waives his right to a jury trial, so that a finding by the court, not in any way based upon the conclusion of the jury of five, that “The court finds the defendant guilty as charged and in my opinion is not entitled to mercy,” is sufficient to sustain a judgment of conviction. Kellogg and Betts, JJ., dissented, with opinion.</p>

<p>Appeal by the plaintiff, Emma A. Robinson, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Che-mung on the 6th day of January, 1912, upon the" decision of the court rendered after a trial at the Chemung Special Term.</p>

Appeal by the plaintiff, Henry Y. Canfield, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 14th day of January, 1911, upon the report of a referee.

Appeal by the defendant, Ellery Hoke, from a judgment of the Supreme Court, rendered against the defendant on the the 25th day of April, 1911, convicting him of the crime of violating the Liquor Tax Law.

Appeal by the plaintiff, William A. Davidson, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of said county on the 19th day of December, 1911, reversing a judgment of a justice of the peace in favor of plaintiff, rendered on the 13th day of March, 1911.

<p>Appeal by The City of New York from an order made by a justice of the Supreme Court and entered in the office of the clerk of the county of Ulster on the 15th day of March, 1912; appointing a referee to take evidence and report as to the validity of the claimant’s claim.</p>

Appeal by the defendant, George E. Ostrander, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 13th day of December, 1911, upon the decision of the court, rendered after a trial at the Washington Special Term, decreeing the right to condemn real property for railroad purposes.

Appeal by the defendant, Buick Motor Company, from that portion of a judgment of the Supreme Court in favor of plaintiff which is against the said defendant, entered in the office of the clerk of the county of Albany on the 13th day of -October, 1911, upon the verdict of a jury rendered after a trial at the Albany Trial Term.

Certiorari issued out of the Supreme Court and attested on the 24th day of June, 1911, directed to William Sohmer, as Comptroller of. the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the revision and readjustment of the franchise tax imposed upon the relator for the year ending October 31, 1909.

Appeal by the plaintiff, George W. Wears, from an order of the County Court of Franklin county, entered in the office of the clerk of said county on the 18th day of October, 1911, and also from a judgment entered in said clerk’s office on the same day reversing a judgment of the justice of the peace in favor of the plaintiff, rendered on the 26th day of January, 1911.

Appeal by the Trust and Deposit Company of Onondaga, as executor and trastee, etc., of C. Will Chappell, deceased, and others, ■ from a decree of the Surrogate’s Court of the county of Madison, entered in said Surrogate’s Court on the 18th day of September, 1911, fixing and modifying the inheritance tax on the estate of C. Will Chappell on an appeal from an order of said court made and entered in said court on the 27 th day of December, 1910.

Appeal by .the defendant, the Union Bag and Paper Com-, pany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 12th day of January, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by William L. Lewis, as special guardian of Clara Van Alstine and Lulu Van Alstine, infants, from a decree of the Surrogate’s Court of the county of Broome, entered in said Surrogate’s Court on the 20th day of December, 1911, judicially settling and allowing the accounts of- Susie Merrill and Diar Baker, as administrators, etc., of Orson A. Van Alstine, deceased, with notice of an intention to bring up for review an intermediate order bearing date the 25th day of…

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Washington county in favor of the defendant, made on the 3d day of February, 1912, sustaining the defendant’s demurrer to an indictment.

Appeal by the plaintiff, Joseph La Page, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Franklin on the 23d day of November, 1910, awarding the plaintiff damages upon the verdict of a jury, and the defendant costs and disbursements of the action, and also from an order entered in said clerk’s office on the 21st day of November, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Highway — proceeding to correct error in order for proposed highway — “ orchard ” within meaning of Highway Law — evidence —when decision of commissioners will not he reversed.</p> <p>Where through some error a highway has been laid out so as to pass through two houses, a proceeding to correct the error may be properly entitled “ A Proceeding to Alter an Existing Highway.”</p> <p>Fruit trees planted with the evident purpose of raising difficulties to the laying out of a highway do not constitute an “orchard ” within the meaning of the Highway Law.</p> <p>In a proceeding for the alteration of a highway, evidence as to the value of the land with the highway as originally laid out and as to its value with the proposed altered highway is incompetent where the original highway has not been laid out; but its admission is harmless where it did not eni er into the decision of the commissioners, and where the witness swore on cross-examination that independently of the original highway, the proposed highway would not diminish the value of the property.</p> <p>■ Where commissioners in laying out a highway have assessed damages assuming that there was an existing right of way over the lands crossed by the proposed highway, the court on appeal from an order confirming the report of the commissioners will not reverse them decision because there is nothing in the record to indicate an existing right of way over the lands of one of the owners, where the attorney for such owner fails to claim that no right of way in fact existed.</p>

<p>Appeal by the defendant, Edward E. Dunn, from a final judgment of the. Supreme Court in favor of the plaintiff, entered in the.office of the clerk of the county of Delaware on the 14th day of November, 1911, confirming the report of a referee in a partition action, with notice of an intention to bring up for review an interlocutory, judgment granted on the 5th day of July, 1911, and entered in said clerk’s office. Judgment affirmed, with costs, on the opinion of the referee.</p> <p>All concurred, except Kellogg, J., who favored a reversal as to the plaintiff; Lyon, J., not sitting.</p>

Appeal by the plaintiff, Nancy Catharine Getman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 20th day of November, 1911, upon the decision of the court, after a trial at the Fulton Special Term.

Appeal by the Claimant, Savilla F. Smith, as administratrix, etc., from a judgment of the Court of Claims of the State of New York, entered in the office óf the clerk of said court on the 16th day of October, 1911, dismissing the appellant’s claim.

<p>Attorneys — admission to practice from other States.</p> <p>An applicant from the State of Pennsylvania is' not entitled to be admitted to practice law in this State without examination unless he has been admitted to practice in the Supreme Court of his own State and has practiced there for the required length of time.</p>

Writ op oertiorari issued out of the Supreme Court and attested on the 21st day of November, 1911, directed to William R. Willcox and others, constituting the Public Service Oom- • mission of the State of New York in and for the. first district, and another, commanding said Willcox and others to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the application of the Long Acre Electric Light and…

Appeal by the plaintiffs, Elizabeth Rastetter and others, infants, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York, on the 21st day of February, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

<p>Pleading—action by stockbroker—answer—conversion of stock by broker — amendment changing date and manner of conversion— failure to prove demand or inability of pledgor to deliver stock.</p> <p>A defendant sued by stockbrokers to recover the balance of an áccount who alleges as a counterclaim that the plaintiff having pledged the securities converted them by allowing them to be sold by the pledgee on > a certain date, should not he allowed to amend the counterclaim at trial so as to set out a prior conversion in that the plaintiff commingled the securities with others held by him and allowed them to be pledged for a sum in excess of that owed by the defendant. Such amendment sets out a new and distinct tort.</p> <p>Moreover, the conversion set forth by such amendment is inconsistent with that originally pleaded.</p> <p>A broker who buys stocks for a customer upon margin may pledge them for so much of the purchase price as is owed by the customer. Under such circumstances the broker’s duty is to either have on hand^oiycmdef his control the stocks which he is carrying for the customer,, but he is</p> <p>_ not required to do both.</p> <p>A stockbroker is not guilty of. a conversion ipso faóto by commingling stocks belonging to different customers in order.to obtain a loan on all in excess of the amount due from one of them. ...</p> <p>A recovery against a stockbroker for conversion is not authorized where it does not appear that the customer demanded his stock or offered to pay the balance due thereon, or that, had he done so'j. the broker having pledged the stock' could not have redeemed it and made delivery.</p> <p>Clarke, J., dissented, with opinion.</p>

Appeal hy the defendants, Louis Grossman and another, from a judgment of the Special Term in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of May, 1911.

<p>Partnership — accounting.</p>

Appeal by the defendant from a judgment entered in the office of the clerk of the county of Otsego on the 38th day of June, 1911, and also from an order entered on,the 36th day of December, 1911.

<p>Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 19th day of October, 1910, upon a decision of the court, certain questions having been submitted to a jury, and also, from orders made in said action and entered in said clerk’s office on the 18th day of March, 1911.</p>

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered upon the report of a referee in the office of the clerk of the county of Schuyler on the 17th day of April, 1911.

Reargument of an appeal from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 2d day of November, 1910, settling and allowing the accounts of Charles E. McDermott, as administrator, etc., of John McDermott, deceased. (See 147 App. Div. 934.)

Appeal by the relator from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 29th day of March, 1912, dismissing a writ of habeas corpus.

Appeal by the plaintiff from an order of the Special Term, entered in the office of the clerk of the county of Westchester on the 17th day of April, 1912, changing the place of trial from Westchester to New York county on the ground that the latter was the proper county.

<p>Motion to strike appeal from calendar.</p>

<p>Appeal from an order entered in the office of the clerk of the county of Hew York on the 6th'day of May, 1912, opening default on terms.</p>

<p>Appeal from an order' of the Special Term entered in the office of the clerk of the county of Hew York on the 20th day of April, 1912, fixing the lien of the appellant Hawke, an attorney.</p>

<p>Appeal from an order entered in the office of the clerk of the county of Hew York on the 14th day of May, 1912, denying a motion for a preference.</p>

<p>Appeal from an order entered in the office of the clerk of the county of Hew York on the 29th day of March, 1912, granting an injunction during ;the pendency of the action.</p>

<p>Appeal from an order entered in the office of the clerk of the county of Hew York on the 14th day of May, 1912, granting a motion to vacate an order for the examination of defendants before trial.</p>

<p>Appeal from an order entered in the office of the elerk of the county of Hew York on the 18th day of April, 1912, granting an examination' of defendants’ books; etc.</p>

<p>Condemnation proceedings— award — unknown owners.</p>

<p>Motion by the defendant for an order reducing judgment.</p>

<p>Appeal from an order denying a motion to punish the defendant for contempt for non-payment of alimony.</p>

<p>Motion by the defendant for an order reducing judgment.</p>

<p>Appeal from a judgment entered upon a verdict, and from an order denying motion for new trial.</p>

<p>Appeal from a judgment of the Court of Special Sessions convicting defendant of maintaining a disorderly house.</p>

<p>Appeal from an order denying a motion to punish the defendant for contempt.-</p>

<p>Crime — abandoning child'—proof of fatherhood.</p>

<p>Appeal from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Madison on the 1st day of March, 1911, and also from an' order entered on the 27th day of December, 1911.</p>

<p>Appeal from an order of the Appellate Term, entered February 11, 1907.</p>

<p>Appeal from a judgment of the Supreme Court, entered October 13, 1911, dismissing the complaint.</p>

<p>Appeal from a judgment of the Supreme Court, entered February 29, 1912, granting plaintiff a separation from defendant and awarding alimony.</p>