Volume 152 — New York Appellate Division Reports

<p>Appeal by the defendant, William R. Montgomery, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 21st day of February, 1911, convicting him of grand larceny in the first degree, and also from an order denying the defendant’s motion for a new trial.</p>

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

<p>Appeal by the defendant, The National Surety Company 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 8th day of February, 1912, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury, and an order denying a motion for a new trial in an action upon a burglary insurance policy.</p>

Appeal by the defendant, Sewall & Alden, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Husband and wife — action to annul marriage of lunatic evidence — proof of lunacy.</p> <p>In an action by the committee and relatives of a wife to annul her marriage on the ground of insanity, evidence examined, and held, insufficient to overcome the presumptions of sanity and validity of the marriage. The provisions of sections 1743 and 1747 of the Code of Civil Procedure do not authorize the annulment of a marriage on proof merely that one of ■ the parties at times had insane delusions or hallucinations on other subjects. It must be satisfactorily shown that the party in whose interest or right the action is brought was mentally incapable of understanding the nature, effect and consequences of the marriage.</p> <p>McLaughlin, J., dissented.</p>

Appeal by the defendant, Lucia Di Mattia Salzano, an infant, 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 upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by Florence M. Morton from a final decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 15th day of February, 1912, settling an account.

Appeal by the defendant, The Farmers’ Loan and Trust Company, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff ^nd certain of' the defendants, entered in the office of the clerk of the county of New York on the 8th day of April, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, construing the will of Simon Frankel, deceased.

<p>Submission of a controversy upon an agreed statement of fact pursuant to section 1219 of the Code of Civil Procedure.</p>

Appeal by the defendant, Benjamin Wexler, from a judgment and order of the Court of General Sessions of the Peace in and for the county of New York, entered on the 31st day of January, 1912, adjudging him a disorderly person and requiring him to furnish money for the support of his wife.

Appeal by the defendant, The New York Central and Hudson River Railroad Company from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of New York on the 27th day of December, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Paul Stamm, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of April, 1912, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the International Giant Safety Coaster Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of February, 1912, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 9th day of February, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Attorney at law disciplined — contract with, witness —compensation dependent upon outcome of litigation.</p> <p>It is serious professional misconduct prejudicial to the administration of justice for an attorney to make a contract with a witness whom he expects to call in a judicial proceeding, whether the witness he an expert or not, by which compensation for the testimony is made dependent upon the outcome of the litigation.</p> <p>Such contract makes an attorney unfit to remain a member of the profession.</p> <p>The court suspends an attorney from practice for one year for making such contract, instead of inflicting the extreme penalty of disbarment, in consideration of the fact that the offense was committed prior to a certain decision as to such misconduct.</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—practice — acceptance of answer after time for service has expired — remedy where answer failed to comply with order.</p> <p>Where after a defendant’s time to serve an amended answer had expired the plaintiff received and retained such answer and accepted the payment of costs and disbursements by the defendant, he cannot thereafter return the answer on the ground that it did not comply with the order directing its service.</p> <p>Under such circumstances the proper practice is to retain the answer and move to strike out the portions which do not comply with the order.</p>

Appeal by the defendant, John Kaufman, 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 April, 1912, denying the defendant’s motion to change the place of trial for the convenience of witnesses.

Appeal by the defendant, John Kaufman, 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 April, 1912, denying the defendant’s motion to change the place of trial for the convenience of witnesses.

<p>Appeal by the defendant, William A. Faulhaber, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 31st day of March, 1910, convicting him of the crime of grand larceny in the second degree and sentencing him to the Elmira Reformatory.</p>

Appeal by the defendants, William A. Prendergast, as comptroller of the city of New York, and others, from an order of the Supreme Court, made at the New York Special Terffi and entered in the office of the clerk of the county of New York on the 20th day of May, 1912, grantingthe relator’s motion for a peremptory writ of mandamus.

Appeal by Sidney J. Cowen, as committee, etc., from part of a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of June, 1911, and also from two orders made at the New York Special Term and entered in said clerk’s office on the same day, and from an order entered on the 27th day of October, 1911.

<p>Appeal by The City of New York and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of June, 1910, confirming the report of commissioners of estimate and assessment herein.</p>

<p>Corporations—corporate assets—trust fund for payment of debts — wrongful transfer of property — liability of directors to creditors.</p> <p>Corporate assets constitute a trust fund for the payment of corporate debts, and when two directors of a stock corporation transfer all the corporate property to a third director for a nominal consideration they commit a breach of duty toward creditors, and become personally liable for existing claims.</p> <p>The third director is also liable on the additional ground that he received, with notice and without consideration, property of the corporation which was impressed with a trust for the payment of the corporate debts.</p> <p>Where two of the three directors of a stock.corporation transferred all of them stock to the third director to be paid for from the funds of the corporation, but such payment did not impair the capital stock and the assets remained more than sufficient to pay all of its liabilities, the transaction was proper and legitimate, and did not render the two directors personally liable to creditors, although the corporation was subsequently dissolved.</p>

<p>Appeal by the plaintiff, Frank V. Strauss & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York-on the 1st day of November,. 1911, upon a dismissal of the complaint at the opening, by direction of the court upon a trial before the court and a jury at the New York Trial Term.</p>

Appeal by the defendants, Charles I. Hudson and another, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February, 1912, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on thé same day denying the defendants’ motion fór a new trial.

Appeal by the plaintiff, Lillian Nordica Dome, from an order of the Supreme Court, made at the New York Special Term and entered in the office. of the clerk of the county of New York on the 23d day of April, 1912, dismissing the complaint for failure to prosecute.

Appeal by the plaintiff, Charles M. Russell, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of May, 1912,. dissolving an injunction and denying a motion for an injunction pendente lite.

Appeal by the defendant, Nederland Israelitish Sick Fund, 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 19th day of March, 1912, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff rendered on the 22d day of May, 1911.

Appeal by the relator, Michael J. Moriarty, 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 April, 1912, denying the relator’s motion for an alternative or peremptory writ of mandamus to compel the respondents, who constitute the municipal civil service commission of the city of New York, to accept his application and to permit bim to enter a competitive examination to be…

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

Appeal by the plaintiff, Thomas Donoghüe, 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 25th day of May,'1912, denying the plaintiff’s motion for the production, discovery, and inspection of a certain bottling machine.

Appeal by the petitioner, Bernard Francis Rollo, as foreign committee, etc., and others from part of an order, 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, refusing to appoint the petitioner as committee of the property of Hugh Hamilton Stafford Northcote in the State of New York, and also from part of an order entered in said clerk’s office on the 5th day of April,' 1912, modifying the…

<p>Railroad — negligence — collision with, automobile —? contributory negligence of passenger—negligence of driver not imputable to passenger — evidence—motion to strike out — damages.</p> <p>Where, in an action to recover for the death of plaintiff’s husband due to the alleged negligence of the defendant in the operation of one of its trains at a-crossing, it appeared that the decedent was invited to accompany the driver and owner of an automobile; that at the time of the accident he was engaged in conversation with a third person who occupied the rumble seat; that it was open country and broad daylight, and there was no reason to believe that the driver was not a careful man, it cannot be said as a matter of law that the deceased was guilty of contributory negligence, although he was familiar with the country.</p> <p>The negligence of the driver of the automobile was not imputable to the decedent.</p> <p>Admission of evidence tending to show that decedent was not familiar with the locality was not so prejudicial as to justify a reversal of a judgment.</p> <p>Testimony by a witness that she exclaimed just before the accident, “ Why don’t they blow that whistle ? ” was competent upon the issue as to whether the defendant gave any warning of its approach to the crossing.</p> <p>Where testimony is admitted without objection, it is not error for the court to refuse to strike it out; the remedy is by a request to instruct the jury to disregard it.</p> <p>A verdict of $40,000 is not excessive for the death of a physician who at the age of thirty-five years was earning $5,000 per year.</p> <p>Thomas, J., dissented.</p>

Appeal by the defendants, Abram Wolf and others, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the-county of Nassau on the '20th day of February, 1912, directing the defendants to file a proper return to a writ of certiorari.

<p>Tax — repeal of Gravesend Act — review of assessment — section S90 of the Tax Law and section 906 of Greater New York charter consistent—petition—statement of inequality.</p> <p>The provisions of the Gravesend Act (Laws of 1894, chap. 449, § 13) directing the assessment of lands in Gravesend at their value for agricultural purposes, unless sold or used as building lots, were repealed by implication by the enactment of the Tax Law.</p> <p>' The provisions of section 290 of the Tax Law, providing for the review of assessments by certiorari, are consistent with section 906 of the Greater New. York charter.</p> <p>A petition for review, containing a statement that land is worth only $160,000 for agricultural purposes, and that it is assessed at the large sum given, does not sufficiently indicate an inequality of assessment and • should be'dismissed.</p>

<p>Bail — remission of forfeiture.</p> <p>The discretion, vested in the court by sections 597 and 598 of the Code of Criminal Procedure, to remit the whole or part of a forfeiture should not be exercised except in cases- of extreme hardship. The fact that the surety can ill afford to lose the amount is not a sufficient ground.</p>

<p>Appeals by the plaintiff, McNulty Brothers, and" the defendants, George Weiderman Electric Company and others, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Kings on the 24th day of July, 1911, upon the decision of the court after a trial at the Kings County Special Term.</p>

Appeal by the plaintiff, Harry Heischober, an infant, 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 26th day of February, 1912, granting the defendant’s motion to open his default and restore the case to the calendar for trial. The action is to recover for an alleged false and malicious arrest and imprisonment of the plaintiff, and was on the.

Appeal by the purchaser, the Esseff Realty Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of April, 1912, denying the application of the appellant to be relieved from its purchase at a partition sale.

Appeal by the purchaser, the Esseff Realty Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of June, 1912, denying the application of the appellant for a reference pursuant to section 885 of the Code of Civil Procedure.

Appeal by the plaintiff, Thomas Finley, from a judgment of the County Court of. Westchester county, entered in the office of the clerk of said court on the 5th day of December, 1911, upon the dismissal of the complaint. upon the pleadings at the opening of a trial before the court and a -jury.

Appeal by the defendant, Gertrude S. Higgins, from a judgment of the Supreme Court in favor of the plaintiffs and the defendant Edwin E. Higgins, entered in the office of the clerk of the county of Kings on the 3d day of November, 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 denying the defendant’s motion to resettle the findings of the court in the action.

Appeal by the defendant, Fay Hunt Erecting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the- 22d day of June, 1911, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on tlie same day, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 26th day of August, 1911, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day denying the - defendant’s motion for a new trial made upon the minutes. - '

Appeal by the plaintiff, Rebecca Baff, 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 22d day of June, 1911, confirming the report of a referee, and also from the judgment entered upon said order.

Appeal by William Sohmer, as Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of Putnam, entered in said Surrogate’s Court on the 25th day of March, 1912, fixing a transfer tax upon the estate of Euphemia Kneeland Haight, deceased, and also from an order entered in said Surrogate’s Court on the 13th day of May, 1912, affirming the prior order.

■ Appeal by Byroñ J. Tillman, legatee, from part of a decree of the Surrogate’s Court of the county of Monroe, entered in the office of the clerk of said court on the 15th day of January, 1912, construing certain provisions of the will of Charles E. Turner, deceased.

Motion by the defendants, the Rochester Trust and Safe Deposit Company, as executor, etc., and others, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in- the first instance upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the Monroe Trial Term in October, 1911.

Appeal by the plaintiff, Hugh J. O’Brien, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 22d day of December, 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.

Appeal by the plaintiff, the New York, Ontario and Western Railway Company, from an order of the Supreme Court, made at the Oswego Special' Term and entered in the office of the clerk of the county of Oswego on the 4th day of March, 1912, denying a motion for permission to discontinue and abandon condemnation proceedings. The proceeding was commenced in July, 1910, tó condemn certain lands in the city of Fulton owned by the defendants.

<p>Tax — special franchise tax — maintenance of pipes under highway . with acquiescence of town authorities — estoppel.</p> <p>A foreign public service corporation authorized to do business in this State, which for many years has maintained pipes for the transportation of gas under a public highway, is assessable fora special franchise in said town, ■ where the pipes, although not laid with the express consent of the town officials, were laid with their knowledge and acquiescence.</p> <p>Moreover, where such corporation has never sought any formal consent from the town authorities in order to enable it to enjoy the privileges of a special franchise, it is estopped from asserting that it is not exercising such franchise.</p>

Appeal by the plaintiff, Carroll L. Hook, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on 14th day of February, 1912, upon the decision of the court after a trial at the Monroe Special Term. The judgment dismissed the complaint upon the merits as to certain of the defendants.

<p>Contract —building contract—failure to make floors of building level — burden of proof.</p> <p>A contractor, suing to recover a balance alleged to be due for the construction of a house built under specifications which required level floors to be furnished, is under the burden of shoving that a sinking of the floors, causing some of them to be three-quarters of an inch out of ' the level, was not due to any failure of performance on his part or to his failure to put in the full number of supporting columns called for by the contract.</p> <p>The contractor, having' failed to sustain said burden of proof, should be charged with the expense of making the floors level so as to conform to the contract.</p>

Appeal by the plaintiff, Frank T. Dunston, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of-the clerk of the county of Erie on the 18th day of April, 1912, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the defendant’s demurrer to the complaint. .

<p>Civil rights — penalty for refusing negress aocommodatioixs in theater — evidence — preference of public as to theater seats.</p> <p>A negress who after having been sold a seat in the orchestra chele of a theater was called from her seat by the manager and ordered to take another seat in the gallery or to leave the theater, for the sole reason that she was a negress, is entitled to recover the penalty prescribed by section 41 of the Civil- Rights Law. This is true although the other seat offered to the plaintiff was equally available for the purpose of witnessing the performance.</p> <p>Evidence examined, and field, that the jury were justified in finding that the defendant did not afford the plaintiff full and equal facilities for observing the performance as required by section 40 of the Civil Rights Law.</p> <p>In an action for such penalty it is not error to exclude evidence as to whether there is a greater demand by the public for seats in the front row of the balcony than for orchestra seats, as it is immaterial.</p>

Appeal by the plaintiff, Joseph Klinczyk, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of March, 1911, upon the dismissal of the complaint by direction of the court on a trial at the Erie Trial Term.

Motion by the plaintiff, Giovanni Banchetti, as administrator, etc., for a new trial upon a case containing exceptions ordered to be heard in the Appellate Division in the first instance upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial before the court and jury at the Monroe Trial Term in April, 1911.

Appeals by the plaintiff, Clarence E. Costello, an infant, and the defendants, John H. Costello, Jr., and another, 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 Erie on the 16th day of May, 1911, upon the report of a referee.

Appeal by the plaintiffs, Magdalena Fronckowiak and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 1st day of April, 1912, upon the decision of the court rendered after a trial at the Erie Special Term. The judgment adjudged that the defendants are the owners of certain premises, and that the plaintiffs are barred from all claims in said lands.

Appeal by the defendant, Maria H. Mascelli, 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 Monroe on the 2d day of October, 1911, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 20th day of March, 1911, denying the said defendant’s motion for a new trial.

Appeal by the plaintiff, the Village of Medina, from a judgment of the Supreme Court in favor of the defendant, the Title Guaranty and Surety Company of Scranton, Pennsylvania, entered in the office of the clerk of the county of Orleans on the 8th day of August, 1911, dismissing the complaint upon the report of a referee appointed to hear, try and determine the issues.

Appeal by the plaintiff, John W. Glennan, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 20th day of December, 1911, upon the verdict of a jury, rendered after a trial at the Monroe Trial Term, dismissing the plaintiff’s complaint -upon the merits, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon…

Appeal by the defendants, James Williams and others, from an interlocutory judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 17th day of January, 1912, in an action for partition.' The facts are agreed upon. On the 27th day of September, 1897, William J. Williams, a resident of Chautauqua county, died seized in fee of the lands described in the complaint.

Appeal by the plaintiff, Christopher C. Werner, 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 Monroe on the 10th day of October, 1911, upon the decision of the court, 'rendered after a trial at the Monroe Special Term, dismissing the complaint.

Appeal by the plaintiff, the State Bank of Brocton, from a judgment of the Supreme Court in favor of the defendant Campbell, as trustee, entered in the. office of the clerk of the county of Chautauqua on the 9th day of April, 1912, dismissing the complaint upon the report of a referee appointed to hear, try and determine the issues.

Appeal by the plaintiff,. Cornelius Dorr, Jr., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Qnondaga on the 13th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Onondaga Trial Term, and also from the order entered in said clerk’s office on the 20th day of October, 1911, dismissing the complaint.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure, for the purpose of having determined questions which have arisen as to the constitutional validity of an act of the State Legislature, which became a law July 28, 1911, being chapter 842 of the Laws of 1911, entitled “ An act creating a railway terminal station commission of the city of Buffalo, defining its powers and authorizing said city to issue its…

Appeal by the relator, Fay Sheldon, from an order of the County Court of Orleans county, entered in the office of the clerk of said court on the 29th day of April, 1912, dismissing a writ of habeas corpus and remanding the relator to custody.

Appeal by the defendant, Walter H. Curtis, from' a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 4th day of November, 1912, convicting the defendant of committing and maintaining a public nuisance, -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, Henry CL.Lein, from a judgment of the Supreme Court, rendered against him on the 19th day of April, 1910, convicting him of the crime of grand larceny in the first degree.

Appeal by Eliza T. Williams, claimant, from a decree of the Surrogate’s Court of the county of Monroe, entered in said -Surrogate’s Court on the 21th day of September, 1909, disallowing and rejecting her claim as a creditor against the estate of William Williams, deceased.

<p>Appeal by the plaintiff, Henry Finck and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 26th day of June, 1911, upon the decision of the court rendered after a trial at the Chautauqua Special Term, and also from an order entered in said clerk’s office on the 29th day of June, 1911, granting an extra allowance to the defendant Lamphere,</p>

Appeal by the plaintiff, Henrietta Simon, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 7th day of December, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Nassau Trial Term. •

Appeal by the plaintiff, Adam Danner, from a judgment of the Supreme Court' in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 20th day of February, 1912, upon the decision of the court, rendered after a. trial at the Westchester Special Term, dismissing the complaint.

Appeal by the defendant, the Pittsburg Contracting Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of December, 1911, upon the verdict of a jury for $1,750.

Appeal by the defendant, the Southern Pacific Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the' office of the clerk of the county of Kings on the 2d day of March, 1909, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

<p>Appeal by the defendant, The Waterbüry 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 11th day of December, 1911, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by George-W. Loft, claimant, from part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 25th day of July, 1911.

Appeal by the defendant, Norman A. Sly,, and by Emma S. Thompson, assignee, etc., from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 15th day of April, 1912.

Appeal by the plaintiff, John Holinski, from a judgment of the County Court of Suffolk county, entered in the office of the clerk of said county on the 3d day of April, 1911. On December 16, 1910, a justice of the peace of the town of Southampton issued a summons in the above-entitled action, returnable on December twenty-seventh following.

Appeal by the defendants, Guiseppa Trimboli 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 30th day of September, 1911, upon the. decision of the court, rendered after a trial at the Kings County Special Term, in an action to recover money paid by the plaintiff to the defendants under the provisions of a contract for the sale and purchase ' of real property which the defendants…

Appeal by the defendant, the American Manufacturing Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 29 th day of March, 1912, denying the defendant’s motion for a bill of particulars.

Appeal by the plaintiff, Adam Bell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 29th 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 Richmond Trial Term.

Appeal by the defendant, Frank Kline, from a judgment of the Supreme Court, rendered against the defendant on the 24th day of February, 1912, after a trial at the Dutchess County Trial ‘ Term convicting him of the crime of rape in the second degree.

<p>Appeal by the defendant, the Central New England Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 28th day of December, 1911, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day, denying the défendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Bennett Williams, 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 15th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 13th day of November, 1911, denying the plaintiff’s motion for a new trial made…

Appeal by the plaintiff, Michael Downs, from a judgment of the County . Court of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 11th day of May, 1911, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said County Court.

Appeal by the defendant, Fannie L. Pierce, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of July, 1911, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the said defendant’s demurrer to the complaint.

Motion by the plaintiff, Kathryne M. Phelps, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Kings County Trial Term in June, 1911.

Appeal by the plaintiffs, Wyllys E. Pettit and another, as executors, etc., from a judgment of - the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of March, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Paul Kaminsky, from a judgment of the Supreme Court in favor of the defendants, entered in the office pf the clerk of the county of Queens on the 23d day of October, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 13th day of December, 1911, denying the plaintiff’s motion for a new trial made…

<p>Appeal by the defendant, Philip P. Wocker, 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 23d day of May, 1912.</p>

<p>Appeal by the plaintiff, Rodman J. Pearson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk' of the county of Dutchess on the 6th day of June, 1911, dismissing the complaint.</p>

<p>Master and servant — negligence — injury by fall of iron superheater — res ipsa loquitur.</p> <p>While defendant’s servants were placing putty where blocks had been in contact with an iron superheater, it fell injuring plaintiff’s hand. Held, that since everything was in complete order and strength, and the master could not have used greater diligence, the doctrine of res ipsa loquitur did not apply.</p> <p>That doctrine puts the master to an explanation of his conduct only, so that it may appear whether he has fulfilled his duty.</p>

<p>Crime—receiving stolen brass — evidence — proof of guilty knowledge.</p> <p>Prosecution of a junk dealer for receiving brass valves, knowing that they had been stolen. Evidence examined, and held,, sufficient to sustain a finding that defendant received and sold the brass valves; but that the proof of his knowledge that they had been stolen was so slight that the conviction should be reversed for errors in the admission of evidence.</p>

<p>Master and servant — Labor Law — what constitutes “scaffold.”</p> <p>Planks, laid along a trestle for a way on which workmen pass to and fro . and on which they stand as necessity and convenience require to raise up and set in place constructing material, do not constitute a ‘ ‘ scaffold, ” ■ • within the meaning of the Labor Law.</p> <p>Where one of such planks tipped and let a workman fall, a recovery cannot be had under the provisions of the statute.</p> <p>Woodward, J., dissented.</p>

<p>Will construed — contingent remainders — effect of death, of remainderman before life tenant — when child provided for in will of mother.</p> <p>A testator devised lands to his wife for life and provided that at her death during the lifetime of any of his children the lands should revert and be divided between a son, J., and a daughter, K., and that the portion belonging to any deceased child should revert to the next of kin. Both children died before the widow, the son, J., dying first. The daughter, If., left a will whereby she made her husband life tenant and gave the remainder to her two children, If. and H., the latter being a half-brother.</p> <p>Held, that M., who survived the life tenant, took' the remainder and that H., her half-brother, did not inherit, as the land came from her ancestor;</p> <p>That H., who died before M. and was born after K. made her will, although not mentioned in the will, came under the word “ issue ” and' was vested with an undivided half of K.’s estate which was subject to be divested by his death before his father, so that provision was made for him within the meaning of section 36 of the Decedent Estate Law;</p> <p>ThatH., dying before M., lost said estate so that Ef. inherited nothing from him.</p>

Appeal by the People of the. State of New York from, part of an order of the County Court of. Kings county, entered in the office of the clerk of said county on the llth day of April, 1912, remitting in part the forfeiture, named in a bad. bond.

<p>Railroad —negligence—death of conductor crushed by backing trolley car — verdict against weight of evidence.</p> <p>Action to recover for the death of the conductor of a trolley car who, while standing behind the ear after the rear truck thereof had left the main track and gone upon a siding, and while walking backward with his eyes upon the feed wire upon which he had just replaced the trolley, was killed when the car backed up and crushed him against a vehicle which had driven up behind. Evidence examined, and, held, that while ■ it was error to set aside a verdict for the plaintiff upon the ground that there was no evidence from which the intestate could be found to be free from contributory negligence, an order setting aside the verdict upon the ground that it was against the weight of evidence would have been proper.</p>

Appeal Tby the defendants, William H. Hanking and others, assessors of the town of Clarkstown, Rockland county, 1ST. T., from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Rockland on the 11th day of February, 1911, confirming the report of a referee.

<p>Damages—injury to oyster bed — measure of damages.</p> <p>The measure of damages to oyster beds"where oysters have been destroyed and profits prevented by the' dredging operations of the defendant, is, in addition to the value of the oysters in existence and which were actually destroyed, the usable value of the premises; that is to say, the sum a prudent man would be willing to pay for the opportunity of using the property in its normal state during the period that it was withheld from the owner.</p> <p>It is improper to allow compensation for loss of profits on oysters which might have been grown by planting them.</p>

Appeal by the defendant, Frank Seaman, from a judgment of the Supreme Court, rendered against the defendant, and entered in the office of the clerk of the county of Dutchess on the 24th day of February, 1912, convicting him of the crime of rape in the second degree.

Appeal by the City of New York 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 Westchester on the 14th day of October, 1911, as resettled and amended by an order entered in said clerk’s office on the 1st day of November, 1911, confirming an award of $380,000 for certain parcels of land in Westchester county taken for the purpose of a water supply for New York city.

Appeal by the Peekskill Ice Company 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 Westchester on the 6th day of September, 1911.

Appeal by the relator, Robert 0. Whitten, 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 10th day of April, 1912, denying a motion for a writ of certiorari.

Cross-appeals by the relators, William H. Hotchkiss and another, and by the defendants, John Smith and another^ constituting the hoard of elections of Putnam county, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Putnam on the 9th day of October, 1912.

Appeals by the plaintiffs, William Rasquin, Jr., and another, as executors, etc., and by the defendants, William Pitt Mason and others, from various parts of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Queens on the 25th day of August, 1911, upon the report of a referee. Judgment affirmed, with costs, on the opinion of James L. Bishop, Esq., Referee.

Appeal by the defendant, The T. A. Gillespie Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 13th day of February, 1912, upon the verdict of a jury for $5,000, and also from two orders entered in said clerk’s office on the 1th and 9th days of February, 1912, respectively, denying the defendant’s motions for a new trial made upon the minutes.

Appeal by the defendants, Edward J. Doyle 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 Columbia on the 24th day of August, 1911, upon the report of a referee appointed to hear and determine the issues.

<p>Indians — act relative to purchase of lands by State for benefit of Cayuga Indians — said act mandatory—mandamus to'compel action thereunder.</p> <p>When the Legislature enacted chapter 255 of the Laws of 1909, directing the Commissioners of the Land Office to adjust the claim of the Cayuga Nation of Indians against the State and to report to the Legislature whether lands should be leased or purchased for the benefit of said Indians out of the profits made by the State from lands previously acquired from them, it knew that said Indians had no claim in law or equity enforcible against the State. Hence, said act is a legislative mandate to the Commissioners of the Land Office, requiring them to attempt an adjustment with' said Indians and to investigate and report as to whether suitable lands can be purchased for them, and mandamus lies to compel such action.</p> <p>Betts, J., dissented.</p>

Appeal by the defendant, Browning, King & Company, 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 2d day of March, 1912, granting judgment to the plaintiff upon the pleadings.

Appeal by the plaintiff, Leroy Tellock, 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 Saratoga on the 16th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of' plaintiff’s case on a trial at the Saratoga Trial Term.

<p>Appeal by the defendant, the Empire Brick and Supply Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 2d day of March, 1912, upon the verdict of a jury for $130,- and also from an order entered in said clerk’s office on the 1st day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Washington county, entered in the office of the clerk of said county upon the decision of the court made on the 2d day of February,. 1912, allowing a demurrer to an indictment charging the defendant with a violation of the Liquor Tax Law.

<p>Master and servant—negligence — death of brakeman through act of teamster when teamster, employed to draw material, is independent contractor.</p> <p>Action to recover for the death of the brakeman of a train whose head was struck by a plank which a teamster had placed on the top of a car which he was unloading. The teamster owned his own horse and wagon "which he used for his own benefit. Evidence examined, and held, that, under the circumstances, the teamster was, at the time, not the servant of the defendant, but was an independent contractor.</p>

<p>Labor Law—violation, of eight-hour law by municipal contractor — report of Commissioner of Labor not final determination — certiorari.</p> <p>The determination of the Commissioner of Labor that a municipal contractor is violating section 3 of the Labor Law, prescribing the wages payable to laborers on municipal contracts for eight hours’ work, is not a final determination, and hence certiorari does not he to review it. Under the provision of section 21 of the Labor Law requiring the Commissioner of Labor to report such violation to the officer, department or board having charge of the work, the functions of the Commissioner are merely advisory to the contracting municipality, and the contractor is not concluded by the result of his examination.</p>

Motion by the defendant, Oyr Herbert, to dismiss an appeal taken by the People of the State of New York from a determination of the Recorder’s Court of the city of Albany, entered on the'26th day of March, 1912, dismissing the information herein upon the ground of insufficiency.

Appeal by William Sohmer, as Comptroller of the State of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 8th day of April, 1912.

<p>Eminent domain — construction of barge canal — compensation for maintenance of railroad bridge.</p> <p>Where the State constructs the barge canal through a railroad right of way consisting of a solid earth embankment so that the railroad company is required to build a bridge over the canal which will necessitate expenditures for maintenance and subsequent renewals, the award to the railroad company should include a sum for the maintenance and renewal.</p> <p>Betts, J., dissented.</p>

Appeal by the plaintiff, Robert A. Beatty, 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 Ulster on the 12th day of December, 1911, upon the decision of the court, rendered after a trial at the Ulster Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Charles P. Boland Company, from that portion of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 27th day of May, 1912, which strikes out the said defendant’s answer as against its codefendant, the Emma Willard School.

Appeal- by the defendant, Edwin R. Bryant, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 20th day of January, 1912, upon the decision of the court rendered after a trial at the Franklin Trial Term before the court without a jury.

Appeal by the plaintiff, Elbert F. Holsapple, from a judgment óf the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 16th day of November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of October, 1911, denying.the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by Joseph A. Powers from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Rensselaer on ■ the 12th day of April, 1912, denying the appellant’s motion to vacate and set aside a petition and an order to show cause why the Hassam Paving Company of New York should not be dissolved.</p>

Appeal by the plaintiff, The People of the State of New York, 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 8th day of November, 1911, upon the decision of the court, rendered after a trial at the Albany Trial Term, a jury having been waived, dismissing the complaint.

<p>Certiorari issued out of the Supreme Court and attested on the 9th day of March, 1912, directed to Stephen M. Howard and others, constituting the board of supervisors of Franklin county, commanding them to certify and return to the office of the clerk of the county of Franklin a copy of the relator’s bill against the county of Franklin for services and disbursements as county clerk of said county, together with all and singular the proceedings of the relator with reference to said bill and account.</p>

Appeal by Levi Tarter, Sr., and Alfred D. Bumps, interveners, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Washington on the 22d day of January, 1912, directing a resubmission to the electors of the town of Hartford, in said county, of the four local option questions designated in section 13 of the Liquor Tax Law (Consol.

Appeal by Thomas Carmody, Attorney-General, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 14th day of April, 1911, confirming the report of commissioners in a proceeding for the abolition of a toll bridge and awarding to the bridge company taxable costs and an additional allowance.

Appeal by the plaintiff, William H. Pearce, from a judgment of the County Court of Otsego county, entered in the office of the clerk of said county on the 8th day of December, 1911, upon the decision of the court, rendered after a trial before the court without a jury, dismissing’the complaint upon the merits.

Cross-appeals by the plaintiff, Daniel B. McCoy, and the defendants, Gas Engine and Power Company and others, from, parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 26th day of August, 1911, upon the decision of the court rendered after a trial at the Westchester Special Term, as amended by an order of said court dated September 23, 1911.

Appeal by the plaintiff, Archibald Bowman, from a judgment of the Supreme Court in favor of the defendant Percy N. Furber, entered in the office of the clerk of the county of Kings on the 27th day of December, 1911 (as amended by an order entered in said clerk’s office on the 11th day of January, 1912), upon the' decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint herein.

<p>Appeal by the plaintiff, Francesco Caccioppoli, 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 8th day of August, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.</p>

Appeal by the plaintiff, Joseph Kwiatkowski, 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 9th day of October, 1911, upon the dismissal of the complaint, at the close of plaintiff’s case by direction of the court, on a trial at the Queens County Trial Term.

Appeal by the defendants, Lillian T. Peterson and another, individually and as executrices, etc., and another, from a final judgment' of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 6th day of February, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes, and also from an order entered in…

Appeal by the defendant, the Central New England Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 6th day of February, 1911, upon the report of a referee, and also from an order entered in said clerk’s office on the same day granting the plaintiffs an extra allowance.

<p>Appeal by the plaintiff, Theodora B. Frost, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 16th day of October, 1911, upon the decision of the court after a trial at the Kings County Special Term dismissing the complaint.</p>

<p>False imprisonment — action against justices of Municipal Court — admission that defendants were judicial officers — power of Municipal Court to punish, criminal contempt — process —• waiver of defects — continuance of jurisdiction — burden of proof.</p> <p>Where a plaintiff, suing to recover damages for false imprisonment under a complaint alleging that the defendants, who had issued an order to show cause why he should not be punished for contempt and had adjudged him guilty and imposed a fine, were without jurisdiction, subsequently admits at trial that the defendants were justices of the Municipal Court of the city of New York when he appeared before them, his complaint should be dismissed. This because the general allegations as to the defendants’ lack of jurisdiction are limited by the subsequent admission.</p> <p>The Municipal Court of the city of New York has statutory authority to punish for a criminal contempt.</p> <p>The preliminary notice required by the Municipal Court Act in a proceeding to punish for a criminal contempt may be made in the form of an order to show cause; the provision for the issuance of a warrant in the first instance is not mandatory.</p> <p>Moreover, where the party upon whom such order to show cause has been served appears in court in response thereto, and submits to a consideration of the matter on its merits, he waives any defect which may exist in the preliminary process and confers jurisdiction upon the justice. Where a justice adjudging a person guilty of a criminal contempt and imposing a fine has jurisdiction both of the person and of the subject-matter of the controversy, he is not civilly liable for false imprisonment unless jurisdiction was subsequently divested. And even in the latter event, liability can only be based upon actual malice.</p> <p>Where in such action the jurisdiction of the inferior court has once been established it need not be affirmatively shown that it was not subsequently lost.</p>

Appeal by the defendant, Turner Construction Company, from an order of the Supreme Court, made at the Richmond Trial Term and entered in the office of the clerk of the county of Richmond on the 18th day of April, 1912, granting the plaintiff’s motion to set aside the dismissal of the complaint and for a new trial.

<p>Master and servant — negligence—injury to stevedore while loading vessel — erroneous charge — evidence justifying nonsuit.</p> <p>In a common-law action by a servant against his master to recover for personal injuries alleged to be due to the furnishing of improper skids for the protection of the work, on which issue the evidence is conflicting, it is error to refuse a request to charge that the defendant was not bound to provide instrumentalities other than those furnished merely at the request of the servant, and that it was immaterial that there are better or different appliances, so long as those provided were reasonably safe.</p> <p>In such action it is error to refuse to charge that if the plaintiff knew that the lights were inadequate, that the number of skids was insufficient, and that his fellow-workmen were intoxicated he cannot recover as he assumed the risk.</p> <p>Where on the trial of suoh action there is no proof that the person superintending the work and alleged to have been intoxicated at the date of the accident was in the employ of the defendant, or under its control, it is error to refuse to charge that the failure of the defendant to produce said person as a witness raised no presumption that his testimony would be unfavorable.</p> <p>Action against a master to recover for injuries received by a servant, a stevedore engaged in loading a vessel. Evidence examined, and held, that a nonsuit should have been granted.</p>

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

<p>Malicious prosecution — termination of prosecution in plaintiff’s favor essential — indictment after discharge by magistrate — pleading — reply.</p> <p>An action for malicious prosecution cannot be maintained, although the plaintiff, having been arraigned before a borough magistrate in the city of New York, was subsequently discharged and the complaint dismissed, if, in fact, the complainant immediately thereafter procured Mm to be mdicted by the grand jury for the identical offense.</p> <p>Under such circumstances the proceedings alleged to have been maliciously instituted have not been terminated m the plamtiff’s favor, that being essential to the maintenance of the action.</p> <p>Where in such action the defendant alleged the subsequent indictment of the plaintiff as a distinct and complete defense, the ■ court in its discretion should require the plaintiff to reply thereto.</p>

Appeal by the defendant, The Nassau Electric 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 13th day of February, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 6th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles T. Wills, Incorporated, 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 31st day of January, 1912, upon the verdict of a jury for $12,000, and also from orders entered in said clerk’s office on the 27th day of January and the 31st day of January, 1912, respectively, denying the defendants’ motions for a new trial made upon the minutes.

Appeal by the defendant, Santoro Trippi, from a judgment of the Court of Special Sessions of the city of New York, rendered against the defendant on the 18th day of March, 1912, convicting him of a violation of section 484 of the Penal Law.

Appeal by the defendants, Belle Terre Estates, Incorporated, 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 Suffolk on the 25th day of April, 1912, upon the decisión of the court rendered after a trial at the Suffolk Special Term.

<p>Eminent domain — condemnation by railroad company of land owned by such company subject to use of surface'by grantor — award to devisees of grantor.</p> <p>In a proceeding by a railroad company to condemn certain lands, it appeared that the plaintiff’s predecessor in title had purchased the parcel in question upon the condition that the grantee would construct and maintain a tunnel thereunder and that the grantors should have the perpetual use of the surface.</p> <p>Held, that the condition in the original purchase was a covenant;</p> <p>That the right which the original grantor retained to use the surface of the land passed to his devisees;</p> <p>.That a judgment, giving, an award to the original grantor’s devisees, based upon the difference in the value of the land with the covenant in .force, and the value with the.covenant abrogated, should be affirmed.</p>

Appeal by the plaintiff, Joseph 0. Eintelen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 20th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of June, 1911, denying the plaintiff’s motion for a new trial, and also, as. stated in the notice of appeal, from a final decree entered on the 15th day of June, 1911. ■ This action…

<p>Appeal by the claimant, the Town of Carmel, from so much of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of January, 1912, as reverses and sets aside an award'of $4,500 to the claimant made to it for the repair and upkeep of guard rails constructed along the new roads.</p>

<p>Appeals by the defendants, Christian Brandlein and another,, from judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 8th day of November, 1911, in each case upon the decision of the court rendered after a trial at the Queens County Special Term canceling certain deeds and directing the repayment of certain purchase money with interest.</p>

Appeal by the defendants, Smith Hoisting 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 14th day of December, 1911, upon the verdict of a jury for $20,000, as amended by an order entered in said clerk’s office on the 19th day of December, 1911, and also from separate orders entered in said clerk’s office on the 9th day of January, 1912, and the 20th day of December, 1911,…

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of December, 1911, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

<p>Appeal by the plaintiffs, Frank T. Staples and another, as ancillary executors, etc., from a portion, and by the defendants Sarah Frances Mead and another, individually and as surviving executrices and trustees, etc., and others, from the whole, of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of December, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing an accounting by the defendants Sarah Frances Mead and another, as executrices and trustees, etc.</p>

Appeal by The City of New York and by Frank Andre and others, the property owners, 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 13th day of March, 1912. Also an appeal by Theodore W. Stemmier from so much of said order as overrules his preliminary objections.

Appeal by the plaintiff, John Wynus, from a judgment of the County Court of Suffolk county in favor of the defendant, entered in the office of the clerk of said county on the 20th day of May, 1911, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of said County Court, both sides having moved for the direction of a verdict, and also, as stated in the notice of appeal, from an order entered on the same day directing such verdict.

Appeal by Jacob Caminez, judgment debtor, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 27th day of May, 1912, adjudging the judgment debtor guilty of contempt of court and punishing him therefor.

Appeal by the plaintiff, Henry Joralemon Davenport, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 24th day of June, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Rehearing, pursuant to a remittitur of the Court of Appeals, . upon a certiorari to -review a determination of the hoard of assessors of the city of New York.

Appeal by the plaintiffs, John F. Pearson and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of November, 1911, upon the dismissal of the complaint at the close of plaintiffs’ case by direction of the court on a trial at the Kings County Trial Term.

Appeal by the petitioner, Alexander de Huber, as consul general, etc., from an order of the- Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 8th day of May, 1912.

Appeal by the defendant, the American Druggists Syndicate, 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 15th day of March, 1912, upon the verdict of a jury for $2,250, and also from an order entered in said clerk’s office on the 15th day of April, 1912, denying the defendant’s: motion for a new trial made upon the minutes.

Appeal by the defendant, James A. Deering, 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 9th day of January, 1909, upon the report of a referee.

Appeal by the claimant, Patrick Byrne, 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 23d day of April,, 1912, denying the claimant’s application for a taxable bill of costs and an extra allowance..

Appeal by the defendant, Henry Clay Pierce, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of tie county of New York on the 15th day of July, 1912, denying, the defendant’s ■ motion to open a default and vacate a judgment.

Appeal by the defendant, Patrick J. McArdle, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of November, 1911, upon the report of a referee, with notice of an intention to bring up for review an interlocutory judgment entered in said clerk’s office on the 30th day of June, 1908, upon the decision of the court rendered after a trial at the New York Special Term, and also the…

Appeal by the plaintiff, Oswald Bachmann, Jr., from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1911, setting aside the verdict of a jury in favor of the plaintiff for $1,500, and granting a new trial upon a motion of the defendants made upon the minutes.

Appeal by the plaintiff, Gr. P. Putnam’s Sons, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1912.

<p>Appeal by the plaintiff, Benjamin F. Sohreiber, as receiver, 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 27th day of May, 1912, denying the plaintiff’s motion to punish the defendant piano company and its president for contempt of court in failing to pay a certain sum to plaintiff, as directed by a judgment of the court.</p>

Appeal by the defendant, Alfred Freund, 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 25th day of July, 1912, substituting the administrator of Alice Davies, deceased, as plaintiff herein and directing final judgment in his favor.

<p>Pleading — motion for further bill of particulars denied.</p> <p>Where a real estate broker suing for.commissions has served a bill of particulars stating approximately the date of his employment and the surname of the defendant’s agent who employed him and has stated approximately the date of other transactions, he should not be required to serve a further bill of particulars stating the first name of the defendant’s agent and the exact dates of the various transactions where his affidavit shows that his memory for dates has been impaired by age and sickness so that he is unable to give the dates more definitely, and the bill of particulars served sufficiently advises the defendant of the facts upon which the plaintiff’s claim is based.</p>

Appeal by the defendant, Lizzie L. Ball, individually and as executrix, etc.,, 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 New York on the 17th day of February, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Melaine Unger, 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 June, 1912, denying the plaintiff’s motion for alimony and counsel fee.

Appeal by the plaintiff, Aida L. Davis, from an order of the Supreme Court, made at the New York Special Term and. entered in the office of the clerk of the county of New York on the 4th day of May,. 1912, denying the plaintiff’s motion for an interlocutory judgment of divorce upon the report of a referee.

Appeal by the defendant, J. Xavier Simon, 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 July, 1912, denying the defendant’s motion to vacate an order for his examination before trial.

<p>Municipal corporations — salary of police matron, city of New York — effect of amendment abolishing position of doorman.</p> <p>A police matron in the city of New York, entitled under section 375 of the city charter to the same salary as a doorman of a station house, which salary is $1,000 per year, is not entitled to the salary of a patrolman because chapter 449 of the Laws of 1912 amended section 276 of the charter so that the rank or grade of doorman is abolished and provided that those then holding the office shall become patrolmen.. This, because, although the position of doorman has been abolished, the salary is still preserved by section 299 of the charter, and this is the only provision which entitles a police matron to any salary whatever.</p>

Appeal by William S. Evans from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1912, requiring-him to pay the petitioner the sum of $150.

Appeal by the defendant, Hollister E. Hessler, as commissioner, etc., from an order of the Supreme Court, made at the Onondaga- Special Term and entered in the office of the clerk of the county of Onondaga on the 14th day of June, 1912, directing the issuance of a peremptory writ of mandamus.

<p>Appeal by the plaintiff, Mary M. Church, from a judgment of the Supreme Court in favor of the- defendants, entered in the office of the clerk of the county of Niagara on the 21st day of February, 1912, upon the decision of the court rendered after a trial before the court without a jury at the Niagara Trial Term.</p> <p>Action for a judicial construction of the Jth clause of the will of Timothy H. Pettit, deceased.' ■</p> <p>Pettit died on the 15th day of July, 1911, leaving a widow and the plaintiff, his daughter, and two other children and five grandchildren, all of whom are parties to this action. He left an estate consisting of personalty to the amount of about $2,000, and real estate of the value of about $15,000. He left a will, made on the 4th day of May, 1904, by which he gave certain specific bequests and legacies, and then disposed of the residue of his estate as follows:</p> <p>“Sixth. I give and bequeath, to my wife, the use of all my real and personal estate, during her natural life — requiring her to keep the buildings in good repair, and keep up the insurance and taxes and if necessary for her comfort, she may use up all the personal property.</p> <p>“Seventh. After the death of my said wife, my surviving Executor, shall sell the remaining property, both real and personal, at such time and price, as his best judgment shall dictate, and within 2 years, after her death, and invest the proceeds, as he may deem wise, and divide each year, the net earnings therefrom, equally between my 3 children, Wm. E. Pettit, Louisa M. Van Horn, and Mary M. Church — during their' natural life. Should either of my children die, leaving no child, of their own body, Their interest, shall go to my remaining child or children, during their natural life. Should they leave child or children of their own body, their interest shall be given to such child or children, on becoming of full age, for their own use and behoof forever, meanwhile, to remain, invested, in the hands of my said Executor, they receiving, annually the net earnings thereof. ”</p> <p>The widow and Frank B. Wilson were named as executors, and were given power “ to convey all my interests necessary to carry out the terms of this will.”</p> <p>On July 25, 1911, before the will had been offered for probate, plaintiff and defendant William E. Pettit, her brother, began an action for partition of the real property left by the testator. The widow and the other daughter, Louisa M. Van Horn, and the wife of the plaintiff William and the two executors named in the will Were the only defendants. The complaint alleged that the 6th and 1th clauses of the will “ are, and each of them is, null and void, and illegal and invalid in law, for the reason that the absolute power of alienation of the said real property is unlawfully suspended thereby, and that the plaintiffs are advised by counsel, and verily believe, that the said Timothy H. Pettit in law died intestate in relation to the said real property and every part thereof, and that the attempted disposition thereof by the provisions and clauses of the said alleged last Will and Testament aforesaid was and is null and void, and illegal and invalid in law. ”</p> <p>The prayer for relief was: “ Wherefore the plaintiffs demand judgment that the attempted disposition and devise of the said real' property in and by the said alleged last Will and Testament and in and by the aforesaid clauses and provisions thereof was and is illegal and void and of no effect, and that in respect to the said real property the said Timothy H. Pettit died intestate, and that the said real property and every part thereof at the death of the said Timothy H. Pettit vested in the plaintiffs and the defendant Louisa M. Van Horn, the only heirs at law of the said Timothy H. Pettit, deceased, entitled thereto, subject to the dower therein of the defendant Mary A. Pettit.” Then followed the usual prayer for partition and division of said real property among the owners thereof. All the defendants were served with process, and on the next day, July 26, 1911, the parties came together and perfected a settlement, which they embodied in a written agreement signed by the widow and the three children of the testator only. This agreement recites the making of the will by testator and his death; that the will had not been presented for probate and the pendency of the partition action to have the will declared void. The widow waives and releases the life estate in the real and personal property given to her by the will and agrees to quitclaim to the remaining executor, Frank B. Wilson, and, in substitution, she is to receive an annuity of $400 per year from the executor. She also renounces her right to act as executor of the will. Plaintiffs in the partition action agree to “ stop said above referred to action in Supreme Court and pay the costs therein made.” All parties consent to the provisions for the widow and agree that the executor may from the property of the estate carry out such provisions and pay to the widow from the income the annuity. Then follows this provision: “And all the parties hereto do hereby each for him or herself, consent and agree that said will of said deceased may be proved and probated without contest or objection, and that they will sign papers giving their consent thereto, and .that the said Frank B. Wilson, as Exr. may and shall now take charge, of all the real and personal property of said deceased, as provided in said will, at the death of the party of the first part.” Then follows a provision by which it is agreed that the executor loan to the plaintiff Mary M. Church $800, to be secured by bond of the plaintiff and her husband,and mortgage upon their homestead.</p> <p>On the same day, July 26, 1911, each of the parties to this agreement signed and acknowledged a waiver of the issuance and service upon them of a citation for the probate of the will, and a consent that the will be admitted to probate forthwith.</p> <p>On July 31, 1911, Wilson, the executor, petitioned for probate of the will,' and on filing the written consents and waivers of citation, the surrogate of Niagara county admitted the will to probate by decree in the usual form, containing no</p> <p>special adjudication as to the construction, validity or legal effect of any of the clauses, or provisions of the will.</p> <p>On August 9, 1911, plaintiff began this action.</p> <p>The $800 loan to plaintiff provided for in the agreement was not made by the executor, for the reason that plaintiff’s husband, who had the legal title to the homestead property, refused to sign the mortgage to secure it.</p> <p>The executor Wilson and the infant child of the plaintiff, who'appears by guardian, and' the children, if any, who may hereafter be born to any of the testator’s' children, for whom, the same guardian has been appointed, are the only defendants who defend this action.</p> <p>ISTothing was done by way of carrying out the written agreement between the parties before this action was begun except the probating of the will.</p>

Appeal by the Grade Crossing Commissioners of the City of Buffalo and others 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 9th day of November, 1911, confirming the report of commissioners of appraisal herein, and also from the report of said commissioners of appraisal filed in the office of the clerk of the county of Erie on the 23d day of October, 1911.

Appeal by Smith O’Brien and others from an order of the Supreme Court, entered in the clerk’s office of the county of Albany on the 21st day of October, 1912, overruling the objections filed to the independent certificate of nomination of Gilbert D. B. Hasbrouck for justice of the Supreme Court for the third judicial district of the State of New York.

<p>Charges by the Association of the Bar of the City of New York against the respondent for fraud and deceit in the proceeding by which he was admitted to practice as an attorney and counselor at law; and (2) for fraudulent practices as an attorney and counselor at law after he was admitted, and for entering into an arrangement with one Hochstadter, who had been convicted of a felony and disbarred therefor, by which Hochstadter in effect practiced law. in the name of the respondent.</p>

<p>Attorney at law disbarred — professional misconduct — misappropriation of client’s money.</p> <p>Attorney at law disbarred for procuring his client, the administratrix of an ' estate, to indorse checks belonging to the estate under a promise that he would deposit the money with a surety company, and then . appropriating it to his own use.</p>

<p>Appeal by the defendant, Benjamin Goldfarb, from a judgment of the Court of Special Sessions of the city of New York, rendered against the defendant on the 3d day of Hovember, 1911, convicting him of the crime of disorderly conduct on a public conveyance, with notice of an intention to bring up for review the determination of said court overruling the defendant’s motion for his discharge upon a plea of former acquittal in bar.</p> <p>On the 7th day of May, 1911, the defendant was arrested on an elevated train at the railway station at Third avenue and One Hundred and Sixth street, in the borough of Manhattan, by an officer attached to the detective bureau of the police department of the city of New York and was taken to police headquarters. He was released on bail and appeared in the Magistrate’s Court, fifth district, on the following morning, where he was arraigned on a charge made "by the officer who arrested him in the form of an affidavit duly sworn to before the magistrate, the material parts of which are as follows: “That on the 7th day of May, 1911, at the City of New York, in the County of New York, 2:30 p. M., Benjamin Goldfarb (now here) was on a north-bound, elevated train, 3rd Avenue and 106 Street, and that he was disturbing the peace; and did then and there push and jostle passengers and put his hands on the person of several passengers. ”</p> <p>The People were represented by an assistant district attorney, and the defendant was represented by counsel, and a trial was commenced before the magistrate before whom defendant was arraigned. One witness, the officer who made the arrest, was called and examined for the People. At the close of his testimony the magistrate ordered him to “take the prisoner back and make another complaint, ” and thereupon the officer signed and duly verified before the same magistrate a deposition the material parts of which are as follows:</p> <p>“That bn the 7th day of April [May], 1911, at the City of New York, in the County of New York, Benjamin Goldfarb (now here) violated the provisions of Section 720 of the Penal Law of the State of New York, in the following manner, to wit: On the above date, about 2:30 o’clock, P. ar., deponent saw this defendant in the doorway leading from the inside of the car to the platform on a north-bound 3rd Avenue Elevated train at 106th Street and 3rd Avenue, that then and there deponent saw this defendant annoy the pass'engers on said train by pushing and jostling said passengers and putting his hands on the person of said passengers.</p> <p>“ Wlierefore, deponent asks that said defendant be dealt with according to law.”</p> <p>Immediately thereafter the magistrate, in answer to a question by the officer as to'what he was going to do with the first charge, upon which the trial was commenced, said that he discharged the defendant. The indorsement on the first affidavit on file in the Magistrate’s Court contains, among other things, the following:</p> <p>“ Dis: Hew Complaint.</p> <p>“Disposition: Under Sec. 720 Penal Law.”</p> <p>The district attorney thereafter filed an information in the Court of Special Sessions based upon the second deposition made by the police officer, charging the defendant with disorderly conduct on a public conveyance, and the defendant was arraigned on this information in the Court of Special Sessions. He interposed a plea of former acquittal, and in support thereof proved the facts hereinbefore stated, claiming that he had thereby been put in jeopardy on the same charge. The court ruled that he had not been formerly put in jeopardy, and after hearing evidence with respect to the occurrence which resulted in his arrest, found him guilty. The defendant thereupon moved on the same facts in -arrest of judgment. The motion was denied and he was sentenced to the penitentiary for eleven months.</p>

<p>Sale — action to recover purchase price — counterclaim by purchaser for commissions — judgment.</p> <p>Action by the vendor of an oil refining plant to recover the purchase price thereof. Provisions of the contract of sale examined, and held, that a counterclaim by the defendants, the purchasers, for commissions upon the sale, should be disallowed and judgment granted in favor of the plaintiff, pursuant to section 1317 of the Code of Civil Procedure.</p>

<p>Appeal from a judgment entered in the New York county clerk’s office on the 19th day of January, 1913, upon the verdict of a jury, and from an order entered on the same day, denying a motion for a new trial.</p>

Appeal by the defendants from a judgment of the Special Term, entered in the office of the clerk of the county of Westchester on the 24th day of July, 1911, in favor of the plaintiff.

<p>Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 3d day of January, 1912, in favor of the defendant; also from an order entered in said clerk’.s office on the 4th day of January, 1912, denying his motion for a new trial.</p>

Appeal by the lienor, Michael J. Mantón, from part of an order of the Special Term, entered in the office of the clerk of the county of Kings on the 15th day of April, 1912.

day of April, 1911. Judgment reversed and new trial granted, with costs to appellant to abide event. Held (1) that the action is prematurely brought; (3) that the right of the defendant to increase its rates is controlled by the laws of Canada and not by the laws of this State. All concurred, except Spring and Kruse, JJ., who dissented in an opinion by Spring, J.

<p>Appeal from a judgment of the- Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county Of Brie, on the 2d day of February, 1912.</p> <p>Judgment affirmed, with costs. All concurred, except Spring and Kruse, JJ., who. dissented in a memorandum, by Spring, J.</p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the clerk’s office of Brie county on the 8th day of September, 1911, granting the defendant’s motion for nonsuit. Judgment affirmed, with costs. All concurred, except Kruse, J., who dissented in a memorandum.

Order affirmed, without costs. J udgment reversed and new trial granted, with costs to appellant to abide event, unless the plaintiff shall within thirty days stipulate to reduce the judgment by the sum of $175 as of the date of the rendition thereof, in which event the' judgment is modified accordingly, and as so modified is affirmed, without costs of this appeal to • either party. All concurred, except Kruse, J., who dissented and voted for reversal in a memorandum.

Appeal by the plaintiff from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 17th day of April, 1912, denying the plaintiff’s motion for judgment on the pleadings in favor of plaintiff and against the - defendant for the relief demanded in the complaint. Order affirmed, with ten dollars costs and disbursements.

<p> Mortgage—foreclosure—offsets. </p>

<p>Negligence—master and servant— injury by machinery in knitting mill — cone duster — necessity for guard.' •</p>

Appeal by the defendant from a portion of an order of the Supreme Court, entered in the clerk’s office of the county of Rensselaer on the 1st day of April, 1913, denying in part a motion for a bill of particulars.

Appeal by the defendant 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 19th day of July, 1911.

Appeal by Edward Lazansky, as Secretary of State, and another from an order of the Special Term, entered in the clerk’s office of Orange county on the 24th day of October, 1912.

<p>Appeal by the plaintiff from an order of the Supreme Court, entered in the office of the clerk of the county of Kings on the 14th day of March, 1913.</p> <p>Order reversed, without costs, and motion for preference granted. No opinion. Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred; Hirschberg, J., read for affirmance.</p>

<p>Appeal by the city of New York from an order of the Special Term, entered in the office of the clerk of Westchester county on the 4th day of December, 1911, as amended by an order of said court, entered in said office on the 22d day of December, 1911, confirming report of commissioners of appraisal.</p> <p>Order affirmed, with ten dollars costs and disbursements. Ho opinion. Hirsehberg, Carr and. Woodward, JJ., concurred; Burr, J., read for reversal, with whom Thomas, J., concurred.</p>

Appeal by the defendant from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 8th day of February, 1912, in favor of the plaintiff, and from an order entered in said clerk’s office on the 13th day of February, 1912, denying a motion for a new trial. Judgment and order of the County Court of Westchester county affirmed, with costs. No opinion.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Suffolk on the 23d day of January, 1912, and from an order entered on the 4th day of April, 1912, denying his motion for a new trial. Judgment and order affirmed, with costs. No opinion. Burr, Thomas and Rich, JJ., concurred; Woodward, J., read for reversal, with whom Hirschberg, J., concurred.

Appeal by the defendants from an order of the Special Term, entered in the office of the clerk of the county of Dutchess on the 5th day of February, 1912, granting an injunction restraining the defendants from using the plaintiff’s name in their advertising. Order affirmed, with ten dollars costs and disbursements. No opinion.

Appeal in each case from an order, entered on the 3d day of September, 1913, denying a motion to vacate an order for the examination of the defendants before trial.

<p>Appeal from an order of the Special Term, entered on the 13th day of June, 1913, denying a motion for a preliminary injunction.</p>

<p>Practice—denial of motion for judgment on pleadings—demurrer to separate defense —contract—agreement to release from obligations — failure to perform conditions — readiness to perform insufficient — pleading.</p>