Volume 153 — New York Appellate Division Reports

Appeal by the defendant, The National Fire Proofing 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 22d day of January, 1912, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 17th day of January, 1912, -denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Pinelawn Cemetery 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 25th day of June, 1912, ordering a visitation of Pinelawn Cemetery, directing the filing of an inventory and account and restraining sales of the property of said cemetery corporation.

Appeal by the defendants, Jerome E. Bates and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to various defenses set up in the answer.

Appeal by the plaintiff, Wahle, Phillips Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of June, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, in so far as said judgment disallows the plaintiff’s lien in part.

Appeal by the defendant, the Maryland1 Casualty 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 17th day of November, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Thomas B. McGovern 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 11th day of March, 1911, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the plaintiff, the E. R. Thomas Motor Branch Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of March* 1912, upon the verdict • of a- jury, rendered by direction of the court, and also from an order entered in said clerk’s office on the 15th day of March, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, N. Sheldon Lewis, 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 ón the 10th 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 New York Trial Term.

Appeal by the defendants, Joseph C. Conkling, individually and as administrator, etc., and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 22d day of December, 1911, and 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, overruling the defendants’ demurrer to the complaint.

Appeal by the defendants, Dominick Bonacci and another, composing the firm of Bonacci-Vincelli Contracting Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of November, 1911, upon the decision of the court rendered after a trial at the New York ■ Special Term. ■

Cross-appeals by the plaintiff, The Waterproofing Company, and the defendant, the Hydrolithio Cement Company, from a judgment of the Supreme Court, entered in the office of the clerk of- the county of New York on the 9 th day of March, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint and a counterclaim herein.

Appeal by the plaintiff, The Contractors’ Supply Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 6th day of March, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the Kank Realty Company from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 19th day of April, 19Í2, denying the appellant’s motion to be relieved from its purchase of certain premises sold under a judgment of foreclosure and sale, and also from an order entered in said clerk’s office on the 28th day of May, 1912, as resettled, denying the said appellant’s motion for leave to…

Appeal by the defendants, Charles Conlon and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of January, 1911, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Callahan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 26th day of May, 1911, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing’ the complaint upon the merits.

Appeal by the defendant, Joseph A. Molloy, 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 22d day of January, 1912, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring- up for review an order to show cause, made herein on the 10th day of July, 1911, and the order reopening this case made at the New York Special Term on the…

Appeal by the plaintiff, Mamie Stevens, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th 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 New York Trial Term, and also from an order entered in said clerk’s office on the 22d day of November, 1911, denying the plaintiff’s motion…

Appeal by Louis S. Owsley,' as ancillary executor, etc., from an order of the surrogate of the county of New York, entered in said Surrogate’s Court on the 4th day of June, 1912.

Appeal by the defendant, William J. Cummins, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of November, 1911, convicting the defendant of the crime of grand larceny in the first degree and sentencing him to Sing Sing for not less than four years and eight months and not more than eight years and eight months; also from two orders entered in said clerk’s office on the same day denying the defendant’s…

Appeal by different defendants, Guardian Trust Company and others, in whole or in part, 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 27th day of December, 1911, upon the report of a referee, and also an appeal by several of said defendants from an interlocutory judgment in favor of the plaintiff enteréd in said clerk’s office on the 8th day of March, 1911, upon the decision of the…

<p>Public Service Commission — reduction of railroad fares on Williams-burg bridge — Legislature may modify or annul contract with. Bridge Operating Company — right of Legislature to regulate public service corporations — delegation of authority to Public Service Commission— contract of bridge commissioner not binding upon Legislature — constitutional law — impairment of obligations of contract — determination as to reasonableness of railroad fares.</p> <p>The contract made by the city of New York, through its bridge commissioner, authorizing the Bridge Operating Company to run cars over the Williamsburg bridge for the minimum period of ten years and to charge a certain fare for transportation between terminals, conferred no fran-. chise upon the Bridge Operating Company, but a mere license' to operate cars. The Legislature has power to change the terms of the contract or to abrogate the same, when public interests so require.</p> <p>The power to regulate the fares charged by public service corporations is a legislative function.</p> <p>It seems, that the Legislature may not deprive itself of this power or delegate to a municipal corporation the power to bind the Legislature not to exercise such power for a definite term.</p> <p>The Legislature retains such complete power over fares to be charged by public service corporations (short of actual confiscation) that the act reducing the fares to be charged by a railroad corporation is valid, although the original rate had been fixed by law before the road was built.</p> <p>As the Legislature by statute has conferred upon the Public Service Commission the authority to fix and regulate railroad fares, an order of said Commission reducing the fares must be construed as a legislative enactment.</p> <p>As the bridge commissioner of the city of New York had no statutory authority to fix any specific time during which the fares charged by the Bridge Operating Company should prevail, his act fixing a period is not binding upon the Legislature, and the act of the Public Service Commission in reducing said fare within said period is not unconstitutional as impairing the obligation of contracts.</p> <p>Qucere, as to whether the city of New York could reduce said fares without legislative authority.</p> <p>In passing upon the reasonableness of rates charged by railroad companies the earning" capacity of the whole route must be considered, not that of individual portions thereof,</p> <p>Evidence examined, and held, that the Public Service Commission was justified in reducing the rates charged by the Bridge Operating Company as the old rates gave it an unreasonably large profit.</p>

<p>Mortgage —foreclosure—right of defendant to have prior mortgagee made party.</p> <p>Where in a suit to foreclose a third mortgage it appears that the amount due on a first mortgage is in dispute, a defendant, who is a receiver and trustee in bankruptcy and owner of a fifth mortgage given to the banlcupt, is entitled to have the holder of the first mortgage made a party in order that he may ascertain just how much there is due upon such mortgage, and be in a position to bid intelligently at the sale, to the end that the whole controversy respecting the hens upon the land in question may be settled.</p> <p>Laijghlin, J., and Ingraham,. P. J., dissented, with opinion.</p>

Appeal by the defendant, Anna V. Moritz, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of June, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Anna V. Moritz, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of June, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, John Brice G-. Rinehart, 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 13th day of July, 1912, denying the plaintiff’s motion for judgment on the pleadings and granting the defendants’ cross-motion for like relief, and also from the judgment entered in said clerk’s office on the same day upon said order sustaining the defendants’…

Appeal by the defendant, The Wabash Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Separate appeals by the City of New York and Fort Washington Syndicate from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office- of the clerk of the county of New York on the 1st day of July, 1910, as resettled, confirming in part the report of commissioners of estimate herein, as sustains the objections of certain parties to the confirmation of said report relating to the failure to award them damages for the taking of their…

Appeal by the defendant, Irwin Untermyer, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 6th day of September, 1912, affirming a judgment of the City Magistrate’s Court of the city of New York convicting the defendant of a violation of chapter 12, section 454, of the Code of Ordinances of the corporation of the city of New York’in relation to the speed of vehicles.

Appeal by the defendant, the Philadelphia Casualty 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 5th day of January, 1912, upon the report of a referee, and also from an order entered in said clerk’s office on the 28th day of December, 1911, granting the plaintiff’s motion for an extra allowance of costs.

<p>- Appeal by the defendant, the New York, Westchester and Boston 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 New York on the 30th day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Irene E. Hoffman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of October, 1912.</p>

Appeal by the defendant, Alexander S. Bacon, from an order of the Supreme Court, made at the Yew -York Special Term > and entered in the office of .the clerk of the county of Yew York ■ on the 27th day of June, 1912, as resettled by an order entered in said clerk’s office on the 9th day of September, 1912.

Appeal by Charles Dupont Coudert, as executor, etc., from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of October, 1912, denying an application for the issuance of letters testamentary.

Appeal by the defendant,. The Standard Oil 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 5th day of January, 1912, upon the verdict of a jury for $3,500, as amended by an order entered in said clerk’s office on the 9th day of February, 1912, and also from so much of an order entered in said clerk’s office on the 24th day of July, 1911, as resettled, as directs that the defendant,…

Appeal by the defendant, Ludwig & Company, from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 14th day of May, 1910, upon the verdict of a jury for $1,429.19, and also from an order entered in said clerk’s office on the 25th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, August Kuhne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of January, 1912, upon the verdict of a jury for $1,788.09, and also from an order entered in said clerk’s office on the 2d day of January, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles C. Wise and another, from an order of the Supreme Court, made at the Nassau Trial Term and entered in the office of the clerk of the county of Nassau on the 14th' day of February, 1912, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Henry A. Siebrecht, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 12th day of January, 1912, upon the verdict of a jury,, 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>

<p>Motor vehicles — negligence—injury to pedestrian — failure of chauffeur to procure license — charge — verdict not excessive.</p> <p>Where the court in an action to recover for personal injuries caused.by an "automobile admits, tentatively, proof of the fact that the chauffeur had no license, but subsequently charges that that fact is not proof that he was guilty of negligence at the time of the accident, the error, if any, in admitting such evidence was cured by the subsequent charge. This is true although the evidence was not subsequently stricken out, for it is presumed that the jury obeyed the instruction of the court.</p> <p>A verdict of $14,000 was not excessive where the plaintiff, who had been earning $18 a week, received several deep wounds upon the head and contusions which rendered her unconscious for three days, and had both arms and one leg broken, with a. result that one of her legs will be permanently shortened and one of her arms will be of very little use.</p>

<p>Crime — Court of Special Sessions, city of New York — sentence by justices who did not attend trial — evidence — good character of defendant — failure of defendant’s witnesses to attend.</p> <p>It is not necessary that the justices of the Court of Special Sessions of the city of New York who impose a sentence upon one convicted in that court and who was remanded for sentence should be the same justices who held the trial.</p> <p>An obiter dictum appearing in the opinion of the Court of Appeals in which all the judges concur is entitled to respect as a declaration of law.</p> <p>The Court of Special Sessions of the city of New York is a continuous court with a practice and procedure analogous to that of the higher courts of criminal jurisdiction.</p> <p>Although it is shown that the defendant in a criminal action bore a good character the jury may find him guilty nevertheless, if after considering his character together with the other evidence they conclude that he is guilty.</p> <p>A new trial in a criminal action will not be granted because a witness for the defendant was absent and refused to attend court, if no application for an adjournment or continuance was made and the testimony of the witness is simply as to collateral facts.</p>

Appeal by the plaintiff, Baffaele Barila,. 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 3d day of May, 1912, 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 defendant, The New York Times. Company, from an interlocutory" judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of December, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.</p>

<p>Pleading—master and servant -- action for breach of contract—amendment of complaint denied—two causes of action for breach of single contract — when actions should not be severed.</p> <p>Where the complaint of a servant against her master, alleging a breach of contract of employment, states separate causes of action, one to recover liquidated damages provided for in the contract and another to recover unliquidated damages for a part of the profits to which the plaintiff would have been entitled had the defendant allowed her to continue her employment, and the Appellate Division has held on a former appeal that the second cause of action was demurrable in that the defendant’s entire liability for the breach was measured by the sum named as liquidated damages and that it was also technically defective in that if construed as an action to recover liquidated damages there was no allegation of non-payment, the plaintiff should not be allowed to amend her complaint seeking to recover a portion of the profits by alleging nonpayment thereof, as the substantive defect in the pleading still remains.</p> <p>Where a contract of employment, entitling the plaintiff to a stated salary and a proportion of net pi*ofits, provided for liquidated damages in case of breach, the plaintiff, having set out two causes of action, founded on the breach, one for the liquidated damages and the other for unliquidated damages for her share of the profits, should not be allowed to sever the actions pursuant to section 1220 of the Code of Civil Procedure. . This, because if the actions had been brought separately, they would have been consolidated upon proper application.</p>

<p>Appeal by the defendant, Theresa Crolly, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of January, 1912, upon the decision of' the court rendered after a trial at the Westchester Special Term.</p>

<p>Appeal by Annie R. Howell and others from an order of the Surrogate’s Court of the county of Suffolk, entered in said Surrogate’s Court on the 29th day of July, 1912, granting a new hearing upon certain questions.</p>

<p>Appeal by the plaintiff, the Tisdale Lumber Company, 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 13th day of April, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 4th day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Will — construction —limitation of general devise.</p> <p>A provision in a will “That the said Estate shall not be given or sold only-in the name of the Hacker Family and must remain the Hacker Estates forever,” following a provision that “ after my lawful debts .are paid, I give, devise and bequeath all the remainder of my Estates both real and personal to my nephew Joseph Carl Hacker,” is ineffectual to limit the quality of the estate given, and the gift to Joseph Carl Hacker is valid.</p> <p>The words “My farm and house and Furniture Household goods therein contained where I now reside,” following the general devise to Joseph Carl Hacker, are merely descriptive of the preceding general words “all the remainder of my Estates,” and the said Joseph Carl Hacker takes the entire estate with the exception of a specific legacy to one Y.</p> <p>When an estate is given in one part of a will in clear and decisive terms, it cannot be taken away or cut down by any subsequent words that are not as clear and decisive as the words creating the estate.</p>

Appeal by the defendant, The City and County Contract Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 3d day of April,. 1912,. upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the complaint. '

Appeal by the plaintiffs, Charles B. Peabody and another, as surviving trustees, etc.., from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 9th day of January, 1912, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Appeal by the defendant, Herbert Gf. Woolworth, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of June, 1912, denying the said defendant’s motion for judgment on the pleadings.</p>

<p>Negligence — action by father for death of daughter — damages — repayment of tuition — funeral expenses instructions. > ’ •• '■</p> <p>In an action by a father, who died three years-and two months, after his, daughter, to recover damages for her death by defendant’s negligence, it appeared that the daughter, educated at a public school,' had passed her majority, studied the millinery trade and, save fór thrée "Months employed elsewhere, had made her home with her father,-: whom'she-hail aided about his store and house, and to whom she had rpp^d,fifty :plpl-. lars of whatever money he had expended for her education. At the time of her death she held a position as a milliner at eighteen dollars per week, but intended to spend five or six months of eách year at home. ' - • i - ></p> <p>Held, that a verdict for $950 damages was not excessive and an additional sum was properly allowed for funeral expenses paid by the father.</p> <p>The court did not err in refusing to charge that the jury could make nc, allowance for any sum the decedent would have paid her father on account of tuition. " ■1' 1"1 • ■' ■</p>

<p>Negligence—injury caused by caving in of sewer excavation — action against several defendants — complaint — dismissal after opening of counsel.</p> <p>Action against a city contractor, a city, a gas company and an electric company to recover damages for the death of plaintiff’s intestate by reason of the falling in of the sides of a trench in which he was working as an employee of.the defendant contractor engaged in the construction of a sewer. Complaint examined, and held, to state a prima facie cause of action.</p> <p>Hence, a judgment dismissing the complaint after the opening of counsel as to all the defendants except the city contractor, when there is no statement or admission in the opening which negatives a cause of action, should be reversed.</p>

Appeal by the plaintiff, Michel I. Schwartz, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 9th day of August, 1912, denying the plaintiff’s motion for judgment on the pleadings and sustaining a demurrer interposed by the defendants.

<p>Appeal by the plaintiff, Pauline Rosenblum, an infant, etc., from so much of 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 13th day of September, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s .case on a trial at the Kings County Trial Term as dismisses the complaint against the defendant Brooklyn Heights Railroad Company.</p>

<p>Appeal by the defendant, Richard J. Williams, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of June, 1912, granting the plaintiff’s motion for judgment-on the pleadings.</p>

<p>Partition — pleadings — defense — title in defendant ^dismissal of complaint.</p> <p>Where the plaintiff in an action for partition makes usual allegations of ownership of the fee of the plaintiff and the several defendants, and one of the defendants denies ownership in the plaintiff and her codefendants, and alleges sole ownership, and, upon the trial, without allegation of fraud, the plaintiff introduces in evidence a copy of a deed to the defendant, and nothing indicates that the title thus vested in the defendant has ever been divested, a dismissal of the complaint Is proper.</p>

<p>, Appeal by James W. Osborne, as executor, and trustee, etc., from part of an order of the- Surrogate’s Court of the county of Kings, entered in said' Surrogate’s Court on the,.29th,daylof' April, 1912, confirming the report of a referee,, and also, from part of a decree entered in said court qn the -,3d: day of May, 1912. V:,, . ,, _ .. V V. ’</p>

Appeal by the defendant, the Coney Island and Brooklyn - 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 6th day of October, 1911, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 21st day of October, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by William Paschal Langevin, as executor, etc., of Rose Hynes Rooney, deceased, from an order of the Surrogate’s Court of the county of Nassau, as resettled, entered in said Surrogate’s Court on the 16th day of March, 1912, overruling the appellant’s demurrer to the sufficiency of the petition herein.</p>

<p>Appeal by William A. Prendergast, comptroller of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the lJth day of February, 1912, granting the petitioner’s motion for a peremptory writ of mandamus.</p>

Appeals by the Brooklyn Trust Company, as trustee, etc., and by Bichard M. Henry, as special guardian, from parts of a decree of the Surrogate’s Court of the county of Suffolk, entered in said Surrogate’s Court on the 20th day of December, 1911.

Appeal by the defendants, Saverio Gallo 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 3d. day of April, 1912, upon the decision of the court, rendered ■after a trial at the Kings County Special Term, directing the foreclosure of a certain mortgage.

<p>Appeals by the plaintiffs in the above-entitled actions from judgments of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county óf Kings on the 14th day of December, 1911, upon the verdict of a jury dismissing the plaintiffs’ complaints, and also from orders entered in said clerk’s office on the 29th day of December, 1911, denying the plaintiffs’ motions for new trials made. upon the minutes.</p>

Appeal by Edward S. Gillette and others, opposing property owners, from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 1st day of May, 1912, denying their motion to vacate and set aside certain orders purporting to appoint commissioners, etc., with notice of an intention to bring up for review an order entered in said clerk’s office on the 19th day of November, 1910, denying the motion of said property owners to set…

<p>Appeal by the plaintiff, Thomas Zeikus, 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 Kings on the 8th day of May, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the defendant’s demurrer to the complaint and dismissing the said complaint.</p>

Appeal by the defendant, the Brooklyn, Queens County and Suburban 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 Queens on the 10th day of April, 1911, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 20th day of April, 1911, denying the said defendant’s motion for a new trial made upon the minutes; also an appeal by the defendant, The…

<p>IsTegligence — lease of wall of building for advertising purposes — fall of scaffold by breaking of parapet—injury to employee of contractor — when owner of building not liable.</p> <p>A landowner who gives to another a right to use a side wall of a building for advertising purposes is not hable for injuries received by an employee of one contracting to paint the advertisement on the wall owing to the fact that the parapet, from which the contractor suspended a scaffold, broke and the scaffold fell, there being no active negligence on the owner’s part. Under such circumstances the only duty of the owner is to commit, no active negligence; he is not liable to the employees of the contractor for passive negligence.</p>

Appeal by the defendant, the Greater New York Development Company, from a judgment of- the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of April, 1912, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the defendant, the Midland Railroad Terminal 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 Richmond on the 22d day of June, 1912, granting the plaintiffs’ motion to enjoin the defendant from selling any of its real estate situated in Richmond county.</p>

Appeal by the plaintiff, Annie Fauls, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of July, .1912.

Appeal by the plaintiff, Herbert H. Gibbs, from part of an interlocutory judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 10th day of June, 1912, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the plaintiff, Joseph A. Carey, suing for the benefit of Josie E. Gauthier, 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 1st day of July, 1912, as amended by an order entered in said clerk’s office on the 5th day of August, 1912, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, a jury having been waived.

Appeal by Agostino H. Montegriffo, Jr., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county, of Kings on the 14th day of June, 1912, appointing a referee to hear and determine the issue's herein.

Appeal by the plaintiff, Annie Moskewiot, 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 3d day of July, 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.

<p>Railroad — negligence — injury to child trespassing upon railroad bridge — duty of engineer to trespasser — when no negligence in delaying attempt to stop train.</p> <p>Where the plaintiff, a girl seven years of age, was a trespasser upon a railroad bridge and was lying between the ties, the duty of the defendant, a railroad company, to stop an oncoming train did not arise until the engineer discovered the plaintiff’s presence and peril. The fact that the engineer when 600 feet distant made out something blue upon the tracks which he at first took to be a workman was not such indication of the plaintiff’s peril as required him then to apply the brakes, he having sounded the alarm whistle.</p> <p>Where after the train, a fast express, had proceeded 400 feet further without the plaintiff heeding the signal, the engineer put on the emergency brakes, and sanded the rails in a effort to stop, defendant cannot be charged with affirmative negligence toward the plaintiff, who was a trespasser.</p> <p>Under the law of this State a locomotive engineer owes to passengers on the train and to persons lawfully upon the track the duty of keeping a lookout in order to prevent injury to them, but he owes no such duty to a trespasser.</p>

Appeal by the defendant, The Colonial Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the llth day of February, 1912, upon the verdict of a jury, also from an order entered in said clerk’s office on the 16th day of February, 1912, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 29th day of January, 1912, striking out…

Appeal by the defendant, the Richmond Light and 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 Richmond on the 13th 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 14th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Frank W. Baum, individually and as committee, etc., from so much of a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 27th day of October, 1911, as adjudges William D. Sporborg and Josiah Canter to be entitled to a lien upon certain stock and enforces the same.</p>

<p>Appeal by the defendant, the National Conduit and Cable Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of March, 1912, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Thompson-Starrett Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of- the clerk of the county of Westchester on the 24th day of February, 1911, upon the verdict of a jury for $3,000, with notice of an intention to bring up for; review , an order denying the defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporation — street opening proceeding under Greater New ■ York charter — statute — effect of subsequent enactment of special act governing same proceeding — subsequent repeal of special act.</p> <p>Where after proceedings were instituted and commissioners appointed, pursuant to the Greater New York charter, for the opening of a' portion of a certain avenue in the borough of Brooklyn, a special act was passed specifically providing for the same .improvement, the latter act must be deemed to supersede the general law, notwithstanding the provisions of section- 31 of the Statutory Construction Law then in force, and the report of the commissioners appointed under the provisions of the charter should not be affirmed.</p> <p>The fact that the special act was subsequently repealed does not change the situation or the legal effect of the proceedings.</p>

Appeal by the plaintiff, Guiseppe Miaño, 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 12th day of July, 1912, upon the decision of the court, rendered after a trial at the Kings County Trial Term, a jury having been waived.

Appeal by the plaintiffs, Crescenzio Riche and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 6th day of August, 1912, upon the decision of the court, rendered after a trial at the Richmond Special Term, dismissing the complaint.

Appeal by the plaintiff, Rose M. Finigan, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county óf Kings on the 26 th day of «January, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to the first defense contained in the defendant’s answer..

<p>Negligence — death of boy from electric shock while climbing upon structure in city street — verdict for plaintiff reinstated — liability of company furnishing current — duty to public—cause of accident — submission of case' as one of negligence — authority under permit from city to erect structure.</p> <p>In an action to recover for the death of plaintiff’s intestate, a boy about eighteen years of age, killed by an electric shock from wires entering a temporary structure seven or eight feet in height erected next to the sidewalk, while attempting to climb upon the structure in order to see a parade, it appeared that a chamber of commerce had contracted for the installation of wires through the city for the purpose of an electrical display; that the defendant, who furnished the electricity, had erected the structure referred to and connected the wires with converters therein after the contractor for the chamber of commerce had brought the wires into the building. There was a sign upon the door of the structure when erected marked “ Banger—2800 volts,” but a policeman arriving immediately after the accident saw no danger sign on the structure.</p> <p>Held, that an order setting aside' a verdict for the plaintiff should be reversed and the verdict reinstated;</p> <p>That the court erred in saying that the defendant was not responsible and intimating that the chamber of commerce would be responsible.</p> <p>The accident was caused.by a combination of circumstances and not by the improper wiring alone.</p> <p>The defendant owed some duty to the public to see that the situation about the structure and the converters was reasonably safe, and by a violation of that duty it conducted its business in a negligent manner and thus brought about the intestate’s death.</p> <p>Although the complaint was framed in negligence, the judgment should not be reversed because the case was submitted to .the jury as one of nuisance.</p> <p>A permit from the city to the defendant to erect the structure did not cover the right to install the wires in such a manner as to endanger the public.</p> <p>Houghton, J., dissented.</p>

Appeal by the plaintiff, Frank Gr. Mix, 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 21st of May, 1912, dismissing ■ the 'complaint upon the ground that it does not state facts sufficient to constitute' a cause of action.

Appeal by the defendant, the General Electric Company, from a judgment of the Supreme Court in favor of the plain- • tiff, entered in the office of the clerk of the county of Schenectady on the 29th day of January, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 30th day of January, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Frank B. Harder, 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 12th day of May, 1910, by direction of the court, certain questions having been submitted to the jury and found in plaintiff’s favor, and also from an order entered in said clerk’s office on the same day directing the entry of said judgment.

Appeal by the plaintiff, Jesse C. Hoover, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 26th day of August, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Broome Trial Term, and also from an order entered in said clerk’s office on the 3d day of Hay, 1911, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendant, Edward Collins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 23d day of February, 1912, upon the verdict of a jury for $1,000, 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, and also from a similar order entered in said clerk’s office On the 28th' day of February, 1912.

Appeal by the defendant, the Stillwater Crushed Stone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 21st day of February, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Syracuse Ice Cream Company, from an order of' the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Cortland on the 2d day of July, 1912, denying the plaintiff’s motion to continue a temporary injunction.

Appeal by the defendant, John Washburn, as sheriff of Saratoga county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 30th day of July, 1912, upon the decision of the court rendered after a trial at the Saratoga Special Term.

Appeal by the plaintiffs, Nelson W. Porter and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin on the 8th day of May, 1912, upon the decision of the court, rendered after a trial before the court without a jury at the Franklin Trial Term, dismissing the complaint.

Appeal by the plaintiff, Donald 0. MacPherson, 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 3d day of July, 1912, 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.

Appeal by the plaintiff, John F. Severson, as commissioner of charities, etc., from an order of the County Court of Broome county, entered in the office of the clerk of said county on the 30th day of October, 1911, setting aside the verdict of a jury in plaintiff’s favor and granting a new trial herein.

Appeal by the plaintiff, Valentine J. Persbacker, from an order of the County Court of Sullivan county, entered in the office of the clerk of said county on the 5 th day of May, 1911, denying the plaintiff’s motion for an order awarding costs and for a certificate certifying the facts.

Appeal by the defendant, Jewett J. Foote, from a judgment of the County Court of Franklin county in favor of the plaintiff, entered in the office of the clerk of said county on the 8th day of May, 1912, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 9th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes. '

<p>Appeal — nonsuit entered on motion of plaintiff pursuant to order — action by assignee —• proof of title of claim — erroneous nonsuit.</p> <p>Where on the settlement of an order granting plaintiff leave to withdraw a juror on payment of costs a provision is inserted that, if plaintiff neglects to pay the costs within twenty days, then defendant’s previous motion for a nonsuit is granted subject to plaintiff’s exception, and judgment may be entered accordingly, a motion by the plaintiff compelling the defendant to enter the judgment does not amount to a . judgment by consent or one from which the plaintiff cannot appeal. Where in an action by an assignee of a claim the assign merit, is received in evidence subject to the defendant’s exception that there is no certificate as to the authenticity of the acknowledgment, the court is not authorized to grant a nonsuit on the ground that plaintiff has failed to prove title to the cause of action.</p>

Appeal by the plaintiff, Bruce Nellis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 26th day of June, 1909, upon the decision of the court, rendered after a trial at the Montgomery Special Term, dismissing the complaint upon the merits. •

<p>Intoxicating liquors — seizure proceedings — defense — charge — presumptive evidence—when possession of liquors prima facie evidence of keeping them for illegal sale — costs.</p> <p>Where in seizure proceedings against a hotelkeeper, the défense is interposed that liquors found in the defendant’s hotel after the town had voted no license were those left on hand at the termination of his license and that they were not being kept for sale, it is error to refuse to charge that the presumption is that these liquors, having been kept in a place not exclusively used for a dwelling, were kept for illegal sale.</p> <p>The provision of the Liquor Tax Law (§ 33, subd. 4) that in proceedings of this character the keeping of liquors in a place not exclusively used as a dwelling shall be prima facie evidence that they were kept for illegal sale, applies whether they be left on hand when the certificate expires or are procured afterward, or when no certificate has ever existed.</p> <p>When they are left oyer after the license to sell expires the rule may not have so great' probative force, but whatever force it has the plaintiff is entitled to it in sustaining the burden of proof.</p> <p>Where in such a proceeding the person claiming title to the liquors interposes an answer, the matter becomes a special proceeding in which costs are allowable to the prevailing party under the provisions of section 3240 of the Code of Civil Procedure.</p> <p>Smith, P. J., and Betts, J., dissented.</p>

Appeal by the plaintiff, William Wynkoop, from an order of the Supreme Court, made at the Rensselaer Trial Term and entered in the office of the clerk of the county of Rensselaer on the 30th day of September, 1911, setting aside the verdict of a jury in favor of the plaintiff for $6,000, and granting a new trial.

<p>Appeal by the defendant, Fred G. Jenkins, chief of police of the city of Glens Falls, from an order of the county judge of Warren county, entered in the office of the clerk of said county on the 6th day of Hay, 1912, discharging the relator from custody.</p>

Appeal by the defendant, The State of New York, from a judgment of the Court of Claims of the State of New York, entered in the office of the clerk of said court on the 29th day of July, 1911, awarding the claimant $1,200 for personal injuries.

<p>Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the County Court of Schenectady county in favor of the plaintiff; entered in the office of the clerk of said county on the 27th day of May, 1912, upon the decision of the court rendered after a trial at Special Term.</p>

<p>Supplementary proceedings — contempt — violation of restraining-order —evidence — costs and allowances.</p> <p>The judgment debtors in supplementary proceedings were ignorant foreigners. They were not informed that there was a restraining order in the papers served upon them and the order was not read to them.</p> <p>Held, that an order adjudging such debtors in contempt for receiving and disbursing money in violation of the restraining order is contrary to the evidence,</p> <p>The costs and allowances were excessive and unreasonable.</p>

Appeal by the defendant, the Great Atlantic and Pacific Tea Company, 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 9th day of December, 1911, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 29th day of December, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 29th day of September, 1911, directed to the State Board of Tax Commissioners, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in fixing the amount of the tax payable under a mortgage executed by the American Ice Company to the Knickerbocker Trust Company, trustee, dated February 1, 1909, and in apportioning the tax thereon.

Appeal by the defendant, Isaac N. Weiner, from a judgment of the County Court of Delaware county, rendered against him on the 12th day of December, 1911, convicting him of the crime of violating subdivision K of section 30 of the Liquor Tax Law.

<p>County Law, § 20 — designation of newspaper to publish Session Laws and Concurrent Resolutions — designation of second paper pending appeal from order annulling prior designation — payment for publication in second paper after reversal of order.</p> <p>Where the owner of a newspaper, pending an appeal from an order of the Appellate Division annulling the designation of another newspaper made pursuant to section 20 of the County Law to publish Sesgion Laws and Concurrent Resolutions, procures a writ of mandamus compelling the designation of the paper published by it and thereupon publishes the Session Laws and Concurrent Resolutions, and said order of the Appellate Division is thereafter reversed upon the ground that the determination of the supervisors was an administrative act not reviewable by certiorari, no recovery can be had for the publication made by such paper,</p> <p>The order annulling the designation of the other paper having been reversed, such designation was valid from the time it was made, and the subsequent designation of a second newspaper not being authorized by statute was void.</p> <p>A publication in a paper not legally designated creates no liability therefor.</p> <p>Hou&hton, J., dissented.</p>

<p>Appeal by the plaintiff, the St. Lawrence County National Bank of Canton, from an interlocutory judgment of the Supreme Court in favor of the defendant Mary F. Watkins, entered in the office of the clerk of the county of St. Lawrence on the 13th day of April, 1912, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, sustaining the said defendant’s demurrer to the complaint.</p>

Appeal by the defendants, Margaret Hosey and others, from an order of the Supreme Court, made at the Ontario Trial Term and entered in the office of the clerk of the county of Ontario on the 7th day of March, 1912, denying the defendants’ motion for a new trial and to set aside the verdict of a jury-

<p>Contract — action tó recover for partial delivery — acceptance of partial delivery—damages — failure to receive complete delivery.</p> <p>Where in an action by the assignee of a claim to recover for peas delivered under a contract by the plaintiff’s assignor to grow and deliver to the defendant certain quantities and varieties of peas, it is apparent from defendant’s letters to plaintiff’s assignor, following its receipt of peas delivered by the latter, that its purpose was to accept such delivery as a partial performance of the contract, and in the event of a failure to receive a complete delivery to assert its claim for damages by reason of such failure, plaintiff should be allowed for the peas delivered in partial performance of the contract, less the defendant’s damages caused,by the failure to receive a complete delivery.</p>

<p>Appeal by the defendants, G-us A. Young and another, from a judgment of the Supreme Court, rendered against them on the 24th day of Juné, 1912, after a trial at the Erie Trial Term, convicting them of a violation of section 314 of the Banking Law, and also from two orders made herein on the 24th day of June, 1912, overruling the defendants’ demurrer to the indictment and denying their motion in arrest of judgment.</p>

<p>Appeal by the defendant, Alfred J. Thurston, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 11th day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of June, 1912, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Beal property — breach of agreement not to deliver deed until payment of purchase price — action by grantor against holders of title under original grantee to establish ownership or an equitable lien for purchase price—judgment canceling record of deed and subsequent conveyances reversed — modification of judgment — evidence — conclusions.</p> <p>Plaintiff brought an action to clear the record and declare her ownership of certain premises, or to establish an equitable lien upon the same for the purchase price thereof. She claimed that she executed a deed of the premises and gave it to her husband, upon the understanding and condition that it should not be delivered until she had received the purchase price. She never received. the purchase price and. never gave possession of the lands, but the grantee named in the conveyance put the deed upon record and conveyed the property and the defendants claim title under him. Upon answers to questions submitted to the jury, judgment was directed canceling the record of the deed and all other subsequent conveyances and incumbrances.</p> <p>Held, that the findings of the jury were insufficient to sustain the judgment directed, which should be reversed.</p> <p>The most the plaintiff can legally or equitably claim is a lien for the unpaid purchase price.</p> <p>The judgment- cannot be modified so as to establish an equitable lien, as the amount thereof has not been established.</p> <p>Testimony of the plaintiff that she never gave her husband authority to deal with the property, except as she had stated, was a conclusion and should not have been admitted in evidence.</p>

<p>Appeal from decree of surrogate—notice of entry — appeal dismissed.</p> <p>Where upon a reference to hear and determine all questions arising upon the settlement of the accounts of an administratrix, her attorney also appeal's for an illegitimate son of the decedent who was not made a party in the first instance, a notice of entry of the surrogate’s decree served upon the attorney for the administratrix is not defective because it is not also addressed to him as attorney for the son of the decedent, and a motion to dismiss an appeal from the surrogate’s decree, taken by the son more than thirty days from the service of the notice of entry, should be granted.</p>

<p>Water and watercourses — construction and repair of ditches to carry flood waters — State Boards and Commissions Law, section 12a, construed — private benefits — exclusion of lands from assessment district — certiorari — order sustaining writ reversed.</p> <p>The provisions of section 12a of the State Boards and Commissions Law, authorizing the erection of dykes, dams and other public works upon a watercourse or its tributaries, empower the State "Water Supply Commission, in a proper case, to construct and repair ditches in order to catch and return flood waters to the main stream and thereby preserve the public health.</p> <p>The permission to construct “other public works” was designed to cover such other public works as should be found essential to the regulation of the flow of the water in the channels.</p> <p>Benefits of a private nature, resulting from the regulation of flood waters should not be permitted to defeat the primary purpose of the statute.</p> <p>Plans and reasons for the improvement of a watercourse examined and approved, and held, that an order sustaining a writ of certiorari and excluding relator’s lands from the assessment district should be reversed.</p> <p>Foote, J., dissented upon opinion of Sutherland, J., delivered at Special Term.</p>

<p>Appeal by James G. Graham and another from so much of a final order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 20th day of May, 1912, as confirms the report of a referee and directs the distribution of the assets of the Seneca Oil Company to the persons and in the manner and proportions specified therein, with notice of an intention to bring up for review an order entered in said clerk’s office on the 31st day of March, 1911, appointing a referee and directing him to hear and determine the issues.</p>

Appeal by the plaintiff, Frank B. Townsend, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tates on the 12th day of December, 1911, upon the verdict of a jury, rendered by direction of the court after a trial at the Tates Trial Term, dismissing the complaint upon the merits.

Appeal by Clara Hall, contestant, from an order of the Surrogate’s Court of Orleans county, entered in said Surrogate’s Court on the 21st day of May, 1912, denying the contestant’s motion for an order directing a trial by jury of questions of fact arising in a proceeding for the probate of a will.

Appeal by the defendant, the Jefferson Power Company, from an order of the Supreme Court, made at the Jefferson Trial Term and entered in the office of the clerk of the county of Jefferson on the 1st day of May, 1911, as resettled and amended by an order entered in said clerk’s office on the 20th day of May, 1911, vacating and setting aside the verdict of a jury in favor of the defendant and granting a new trial.

Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 19th day of July, 1912, upon the decision of the court, rendered after a trial at the Steuben Special Term, sustaining the plaintiff’s demurrer to the defenses set up in the fourth, fifth and sixth counts in defendant’s answer.

Appeal by the relator, James J. Guernsey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 16th day of October, 1911, upon the decision of the court, rendered after a trial at the Oneida Special Term, dismissing an alternative writ of mandamus.

Appeal by the plaintiff, William E. Carroll, as receiver, etc., from part of 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 13th day of August, 1912.

Appeal by the defendant, Julia Oppenheimer, from so much of an order of the Supreme Court, made at- the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of October, 1912, as denies to the defendant alimony pendente lite.

Arpe at, by the plaintiffs, Amia Day Ward and another, as committee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the comity of New York on the 18th day of July, 1912, overruling demurrers to the third and fourth separate defenses of the amended answer.

<p>Appeal by the plaintiff, Mary Brown, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of April, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.</p>

Appeal by the plaintiff, Marie Dick, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th 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 New York Trial Term.

<p>Executors and administrators — authority of ancillary executor — corporation— certificate of stock — authority of ancillary executor to demand transfer of stock by corporation.</p> <p>The authority of an ancillary executor is strictly limited to personal property having its situs within the jurisdiction of his appointment.</p> <p>A certificate of stock represents the interest which the holder thereof has in the capital and net earnings of the corporation.</p> <p>A certificate of stock may be regarded as having its situs either at the domicile of the holder thereof, because it is a chose in action, or at the domicile of the corporation, because the shares represent an integral part of the property of the corporation, and this irrespective of where the certificate may physically be.</p> <p>Hence, although a testatrix at the time of her death on the Island of Bermuda, where she .resided, owned corporate stock located in this State, which came lawfully into the possession of the holder of ancillary letters issued in this State, such letters confer no authority to demand a transfer of such stock upon the books of a New Jersey corporation maintaining an office in this State, or to compel it to issue new certificates, when the transfer has been made.</p>

<p>Master and servant — negligence —when master not liable for injuries to servant caused by negligence of truck driver furnished by third party — erroneous dismissal of complaint.</p> <p>In an action for personal injuries sustained by the fall of a heavy case of goods caused by the negligence of the driver of a truck in permitting it to start away from a platform, it appeared that the plaintiff’s master had the exclusive use of the horse and truck, which was furnished by defendants at a fixed rate per week under an agreement that defendants should assume responsibility from the time the goods were delivered to them until they were delivered at their destination. The defendants employed and paid the driver, whom they selected and had the right to discharge. The plaintiff’s master did not interfere in any way with the management of the truck and horse by the driver.</p> <p>Held, that a dismissal of the complaint upon the theory that the driver of the truck was the servant of the plaintiff’s master was erroneous and a .new trial should be granted.</p>

Appeal by the relator, The Butterick Publishing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of June, 1912, granting a motion to quash a writ of certiorari issued to review an assessment for the purpose of taxation.

<p>Crime — abduction — indictment under Penal Law, section 70, subdivision 1 — failure to except to charge under subdivision 2 of said section —- refusal to grant request to charge upon return of jury for further instructions.</p> <p>Appeal by the defendant, Joseph Turley, from a judgment of the Supreme Court, rendered against the defendant on the 25th day of March, 1909, convicting him of the crime of abduction, and also from an order denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Annie Brudie, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of March, 1911, upon the dismissal of the complaint by direction of the court at the. close of plaintiff’s case on a trial at the New York Trial Term.

<p>Mortgage — foreclosure — personal liability of purchaser of mortgaged premises for interest paid on prior mortgage — decree of foreclosure . modified — provision for increasing mortgage debt by interest paid on prior mortgage construed — whenjudgmentnotenteredbydefault.</p> <p>A purchaser of mortgaged premises, who enters into agreements with the holder of the mortgage for an extension of time and agrees to pay the principal sum then due, with interest, at stated periods, does not render himself liable upon the foreclosure of the mortgage to a personal judgment for the amount of interest which the owners of the mortgage have paid on a prior mortgage, although such mortgage provides that in default of payment of interest due upon any prior mortgage the owner of the present mortgage may pay the amount of such interest, which thereupon becomes a lien upon the premises secured by the present mortgage.</p> <p>A judgment of foreclosure and sale directing that a personal judgment be entered against such purchaser for any deficiency that may arise upon a sale of the mortgaged premises, should be modified so as to provide that the amount for which said purchaser is to be personally liable shall be the deficiency, if any, which shall arise in the amount due for principal and interest, not including the sum paid for interest on the prior mortgage, after deducting the costs, allowances, disbursements and unpaid taxes.</p> <p>Provisions for increasing the mortgage debt by the amount paid for interest on prior mortgages are intended merely to protect the mortgagee’s security and do not increase the personal liability of any one who has not assumed its payment.</p> <p>Where the owner of mortgaged premises appears in a suit of foreclosure and demands service of all papers except the complaint, he reserves the right to be heard on the form of the judgment to be entered.</p>

Appeal by the plaintiff, Eobert J. Kerr, 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 July, 1912, denying the plaintiffs motion to vacate or modify an order for his examination before trial.

<p>. Contract — breach, of contract to send, cablegram — pleading — complaint — failure to state cause of action — conclusions of law.</p> <p>A complaint in an action to recover damages for the breach of an alleged contract to send and- deliver a cablegram alleged, in substance, that prior to a certain date the plaintiffs were in correspondence with a foreign produce merchant; that as a result of the correspondence said merchant offered to sell to. the plaintiffs a certain number of crates of winter onions, and requested plaintiffs to reply by cable; that for a valuable consideration they'delivered to the defendant to be sent to said merchant the following cablegram: “ Onions offered are crates 80 kilos net; ” that the defendant neglected to send such cablegram; that had it been sent the plaintiffs would "have received the onions, and on a resale would have realized on the transaction a certain profit, for which judgment was demanded. , ' '</p> <p>Held, that the complaint .failed to' state a cause of action, hut since defendant moved that plaintiffs have judgment for nominal damages, its motion will be granted.</p> <p>The allegation that “plaintiffs, for a valuable consideration, delivered the following cable to the defendant to be sent,” taken literally, means that defendants gave plaintiff something, of value for the privilege of sending the message, but if construed as intended, it was insufficient because of the failure to state that the consideration'was the payment of the usual charges; it being a mere conclusion of law.</p>

Appeal by the defendant, James Beggs and 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 22d day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of January, 1912, denying the defendant’s- motion for a new trial made upon the'minutes.

<p>Appeal by the defendants, David A. Schulte 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 24th day of October, 1911, upon the verdict of a jury.</p>

Appeal by the defendants, the Crandall & Godley Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York qnthe 13th day of March, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Harriet 0. Werner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March, 19-12, denying the plaintiff’s motion to amend a final judgment in an action granting plaintiff a divorce.

<p>Real property—easements not extinguished by foreclosure of tax lien , .. .on adjoining premises.</p> <p>The foreclosure of a tax lien and the sale of premises,-'pursuant to section 1035 et seq. of the Greater New York charter, does not extinguish private easements of light, .air and access of adjoining owners over the land sold. This, because if property rights which are excluded from an assessment are sold or extinguished by a tax sale, there is a taking of property without due process of law.</p>

<p>Wills — signature by mark when, decedent can write — proof of execu- . tlon — evidence—decree admitting will to probate affirmed.</p> <p>The fact that a decedent, who could read and write, did not sign her - name to her will, but simply made her mark, does not of itself invalidate the will.</p> <p>But where one who can write has not signed his name to his will, but has instead thereof made his mark, and those taking substantial interests under the will are instrumental in obtaining it, while other interested persons act as witnesses to the signature, clear and satisfactory evidence is required to meet the burden of proof, and .if the circumstances are not satisfactorily explained they may justify a conclusive presumption that the mark is not the subscription of the testator.</p> <p>Evidence examined, and held, that the proponent fully sustained the burden of proof in this case and that a decree admitting the will to probate should be affirmed,</p> <p>McLaughlin and Miller, JJ., dissented, with opinion.</p>

Appeal by the plaintiff, Samuel A. Salvage, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of October, 1912, denying the plaintiff’s motion for leave to serve a,n amended complaint,

<p>Corporation—when foreign corporation must keep stock books open for inspection—maintenance of office in this State—transfer agent— refusal to permit inspection of books.</p> <p>Under section 33 of the Stock Corporation Law the duty of keeping a stock book which shall be open for the inspection of designated persons is only imposed upon foreign stock corporations having an “ office for the transaction of business ” in this State, except moneyed and railroad corporations.</p> <p>The maintenance by a foreign corporation of a transfer agent in this State merely for the convenience of its stockholders and to facilitate the sale of its stock does not constitute the maintenance of an office for the “ transaction of business ” within the meaning of the statute.</p> <p>Hence, the transfer agent of a foreign stock corporation, having no office for the transaction of business in this State, is not liable for the penalty prescribed by statute for a refusal to permit an inspection of the stock book.</p>

<p>Appeal by the plaintiff, Louis Andersen, 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 8th day of April, 1912, setting aside the verdict of. a jury in favor of the plaintiff for $1,000 and granting the defendant’s motion for a new trial.</p>

<p>Appeal by the defendant, Lancelot M. Berkeley, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of June, 1910, directing an accounting.</p>

Appeal by the defendant, The Star Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of January, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the second amended complaint.

<p>Appeal by the defendant, Julius Krulewitch, 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 April, 1912, denying the motion of the defendant Krulewitch to compel House, Grossman & Vorhaus, the attorneys for the defendant Samuels, to turn over a certain satisfaction of judgment.</p>

<p>Interpleader—action under section 830a of the Code of Civil Procedure — complaint — affidavits — failure to show basis of conflicting claims.</p> <p>Where, in an action for interpleader brought under section 820a of the Code of Civil Procedure, the complaint follows the requirements of said section, but nothing whatever is stated either in the complaint or the affidavits showing the basis of the claims of the defendants, beyond the mere statement that they all assert claims and have made demands upon the plaintiff, the plaintiff’s motion for leave to pay into court should be denied.</p> <p>Although it may not be necessary in such action that the complaint should state the facts tending to show that the conflicting claims to the fund rest upon a reasonable basis, such facts should be set forth by affidavit . upon the motion for leave to pay into court.</p>

Appeal by the Columbia-Knickerbocker Trust Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of October, 1912, granting the motion of the petitioner, the Comptroller of the State of New York, and directing the transfer of certain funds and securities from the Cblumbia-Knickerbocker Trust .Company to the city chamberlain of the city of New York.

Appeal by the relator, Cranford Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of November, 1912, denying the relator’s motion for a peremptory writ of mandamus,

Appeal by the defendants, The Froma Realty Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of April, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, directing the foreclosure of a mortgage and a sale of the premises described in the complaint.

Appeal by the defendant, Douglas Robinson, Charles S. Brown 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 31st day of January, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of January, 1912, as resettled, denying the defendant’s motion for a new trial made upon the minutes.

<p>Attorney at law disbarred — false acknowledgments — perjury.</p> <p>Attorney at law disbarred for executing false acknowledgments of deeds and for committing perjury upon a hearing before a referee.</p>

Appeal by the defendant, Charles W. Chapman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Contract — agreement to sell collateral without notice to owners — subsequent oral agreement to give notice before sale — conversion — evidence — unauthorized sale and purchase hy broker — ratification of unauthorized sale — finding contrary to evidence.</p> <p>Plaintiff delivered stocks and bonds to the defendants as eoEateral security for the payment of notes. Thereafter, at the request of the defendants, he signed a collateral loan agreement giving to the latter the right, in case the' notes were not paid when due, to sell the collateral, without notice to him, either at public or private sale, and if the sale were made at broker’s hoard of public auction, the right to the defendants to become the purchasers. After the notes had been duly protested for' non-payment, the defendants sold the stock upon the curb and purchased it themselves, giving the plaintiff credit therefor and sending him. a statement. More than two years after the sale, the stock having increased in value, plaintiff tendered to the defendants the amount for which it was pm-chased by them, the balance of the debt having in the meantime been paid, and demanded the return of the stock. Upon then- refusal to comply with the demand he brought this action for conversion to recover the value of the stock, as of the date the demand was made, together with the accrued dividends and interest, less the purchase price which had been credited upon the debt. The plaintiff claimed that the defendants had subsequently made an oral promise not to sell without notice.</p> <p>Held, that, since the evidence was sufficient to sustain a finding that the oral promise not to sell without notice was made and since the purchase of the stock by the defendants upon the curb was in violation of then- agreement, the sale was Unauthorized;</p> <p>That, notwithstanding the fact that the sale was unauthorized, the plaintiff, by paying the balance of the debt and by failing for over two years to object to the sale, ratified the same, and the finding of the jury to the contrary was against the evidence.</p>

Appeal by the plaintiff, Matthew Cullen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of June, 1911, granting the motion of the defendant Ealph Thomas for judgment on the pleadings, and also from the judgment entered in the office of the clerk of said county on the 5th day of July, 1912, upon said order.

Appeal by the defendant, Herman 0. Brewster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of May, 1912, upon the verdict of a jury,-and also from an order entered in said clerk’s office on the 8th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mary J. Oochrane, from an interlocutory judgment of the Supreme Court in favor of the plaintiff,' entered in the office of the clerk of the county of New York on the 15th day of June, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

Appeal by the Comptroller of the State of New York from so much of an order of the Surrogate’s Court of New York county, entered in the said Surrogate’s Court on the 1st day of December, 1911, as sustains the fourth ground of appeal of the executrix herein from an order assessing a transfer tax.

<p>Pleading — action by architect to recover ror professional services— ' bill of particulars — compliance with order — order precluding the givingofevidence modified.</p> <p>In an action by an architect to recover for professional services under an agreement by which he was to prepare plans, order the work and supervise changes and alterations in a building, defendants counterclaimed ■ for damages on account of the failure of the plaintiff properly to perform his contract. Bill of particulars of the counterclaims examined, and held, that an order precluding the defendants from giving evidence should be modified.</p>

<p>Partnership — breach of oral contract to continue partnership for one year — damages — erroneous charge — drawing account, when in anticipation of profits—final judgment by Appellate Division.</p> <p>Where in an action to recover damages for the breach of an oral contract to continue .a partnership for one year, it appears that the defendant furnished the entire cash capital; that both parties were to draw a certain sum per week; that the plaintiff from the money drawn by him was to pay the defendant interest on one-half of the amount invested by the latter; that profits and losses were to be shared equally, and that there would have' been a loss in the year’s business, the plaintiff can recover nominal damages only, and it is error to. charge to the Contrary.</p> <p>The' drawing account allowed was, under the circumstances, in anticipation of profits, and if the partnership had continued for the year and the business had shown a loss, as it did, the amount of the drawings would have been chargeable against the plaintiff.</p> <p>A final judgment for nominal damages may be awarded by the Appellate Division under section 1317 of the Code of Civil Procedure. .</p>

■ Appeal by the defendant, the Isaac H. Blanchard Company, from an interlocutory judgment óf the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of June, 1912, upon the decision of thecourt, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal in each case by the plaintiff from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of Hovember, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.

Appeal by the defendant, Walter Drew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 3d day of February, 1912, upon the-verdict of a jury for $2,000,. and also from an order entered in said clerk’s office on the 6th day of February, 1912, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Daniel O’Reilly, 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 5th day of June, 1911, convicting him of the crime of criminally receiving stolen property, and also from an order denying the defendant’s motion for a new trial.

Appeal by the defendant, Edward R. Thomas, from a judgment of the Supreme Court in favor of the plaintiffs against the said defendant, but dismissing the complaint as to the other defendants, entered in the office of the clerk of the county of New York on the 24th day of January, 1912, upon' the report of a referee.

<p>Motion to dismiss appeal for failure to serve a printed case.</p>

<p>Practice — opening default.</p>

<p>Appeal from an order of the Supreme Court, entered on the 20th day of August, 1912, granting a motion to preclude the plaintiff from giving evidence on the trial as to matters set forth in paragraph 7 of the complaint.</p>

<p>Practice — opening default.</p>

<p>Appeal from an order of the Supreme Court, entered on the 9th day of October, 1912, adjudging defendant in contempt for failing to obey a decree of the Supreme Court, directing the payment of alimony.</p>

<p> Charges against an attorney of professional misconduct. </p>

<p>Appeal from an order of the Supreme Court, entered on the 9th day of October, 1912, directing appellant to pay rent to receiver in an action to foreclose a mortgage.</p>

<p> Attorney censured—charges by the Association of the Barofprofessional misconduct against an attorney. </p>

<p>Appeal from an order of the Supreme Court, made at Special Term and entered on the 35th day of July, 1913, denying the petition of the relator for the issuance of a writ of mandamus directing the respondent to reinstate the relator to the position of foreman painter in the bureau of buildings in the borough of Manhattan, city of New York.</p>

<p>Pleading — annexing copy of document.</p>

<p>Appeal from an order of the Supreme Court, made at Special Term and entered on the Uth day of July, 1912, granting relator an alternative writ of mandamus.</p>

an order of the Supreme Court, made at Special Term and entered on the 4th day of September, 1912, denying appellants’ motion to open default.

<p>Appeal from an order of the Supreme Court, entered on the 30th day of September, 1912, denying a motion for certain particulars of plaintiffs’ complaint and reply.</p>

<p>Motion to substitute assignees of the defendants in place of the defendants as respondents on this appeal.</p>

<p>Appeal from a judgment of the Supreme Court, entered on the 6th day of February, 9113, on the verdict of a jury, and from an order entered on the 5th day of February, 1913, denying a motion for a new trial.</p>

<p>Appeal from an order of the Supreme Court, made at Special Term and entered on the 30th day of September, 1913, modifying an order for the examination of defendant before trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered on the 13th day of March, 1013, upon the verdict of a jury, and from an order entered on the 15th day of March, 1013, denying a motion for a new trial.</p>

<p>Motion for a stay of proceedings pending an appeal to the Court of Appeals.</p>

<p>Appeal from a judgment of the Supreme Court, entered on the 5th day of March, 1913, upon the verdict of a jury, and from an order entered on the ÍSth day of March, 1913, denying a motion for a new trial.</p>

Appeal by the plaintiff from an order of the Supreme Court, entered on the 9th day of April, 1913, denying his motion to vacate an order for Ms examination before trial.

<p>Appeal from a judgment of the Supreme Court, entered on the 30th day of April, 1913, upon the verdict of a jury and from an order entered on the 1st day of May, 1913, denying a. motion for a new trial.</p>

Certiorari issued out of the Supreme Court, and attested on the 11th day of April, 1912, to review the dismissal of the relator from the position of oil surveyor in the fire department.

Order affirmed, with ten dollars costs and disbursements, on opinion of Bischoff, J., with leave to defendant to withdraw demurrer and to answer on payment of costs.

Cross-appeals from parts of an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Orange on or about the 21st day of May, 1912.

<p>Appeal by August C. Scharmann and others from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 11th day of July, 1912, overruling their demurrer to the complaint.</p>

Reargument of an appeal by the defendant, Eliza De Loynes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 23d day of May, 1911.

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 1st day of August, 1911, dismissing the complaint.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the clerk’s office of the county of Warren on the 81st day of January, 1912, upon the decision of the court rendered after a trial before the court without a jury, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 25th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes. Judgment and order affirmed, with costs.

<p>Appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sara-toga on the 9th day of March, 1912, 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> <p>Judgment reversed and new trial granted, with costs to appellant to abide event, upon the authority of Witzwater v. Warren (206 N. Y. 365). All concurred; Betts, J., in opinion in which Kellogg, J., concurred.</p>

Appeal by the plaintiffs from a judgment of the Supreme Court, entered in the office of the clerk of the county of Montgomery upon the report of a referee on the 12th day of April, 1912.

Appeal by the defendants, Jones Brothers 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 Clinton on the 10th day of June, 1911, upon the decision of the court rendered after a trial at the Clinton Special Term.

Appeal, from a judgment of the Supreme Court, entered in the Erie county clerk’s office on the 14th day of March, 1912, and also from an order entered on the 21st day of March, 1912, denying a motion for a new trial. Judgment and order affirmed, with costs. All concurred, except

Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held: that the trial court erred in holding that the plaintiff was guilty of contributory negligence as matter of law; that the evidence was sufficient to present a question of fact in that regard as well as upon the question of defendant’s negligence. All concurred, except Foote, J., who dissented in a memorandum.