Volume 154 — New York Appellate Division Reports

Appeal by the plaintiff, Thomas Boyle, 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 13th day of February, 1912, upon the dismissal of the complaint as to each of the defendants (excepting the defendant William Baumgarten, who was not served) at the close of plaintiff’s case by direction' of the court on a trial at the New York Trial Term.

Appeal by the defendants, the New York, New Haven and Hartford Railroad Company 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 11th day of July, 1912, continuing a temporary injunction pendente lite.

Appeal by the defendant, Charles Katz, from a judgment of the Supreme Court rendered against the defendant on the 3d day of May, 1910, upon the verdict of a jury.

Appeal by the defendant, the City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of April, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edmund J. Healy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of New York on the 27th day of June, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the Home Title Insurance Company of New York, 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 22d day of April, 1912,. upon the decision of the court, rendered after a trial at the New York Special Term, sustaining plaintiff’s demurrer to three separate defenses designated first, second and third, contained in' defendant’s answer on the ground that they…

Appeal by the defendant, the Home Title Insurance Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of May, 1912, denying the defendant’s motion to amend an interlocutory judgment herein sustaining demurrers to certain of the defenses set up in the answer so as to give it leave to interpose an amended answer.

<p>Guaranty and suretyship—bond of insurance agent — liability of sureties for default of agent under subsequent- contract.</p> <p>Provisions of a bond with two sureties given by an insurance agent to his company for the faithful performance of his duties under a certain contract examined, and held, that the sureties are not liable for an indebtedness of the agent to the company incurred under a subsequent contract made with the company after the agent had resigned and the old contract had been canceled by mutual consent.</p> <p>Ingraham, P. J., and Dowling, J., dissented.</p>

Appeal by the plaintiff, Caroline A. Hoagiand, 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 3d day of June, 1912, upon the decision of the court rendered after a trial at the Mew York Special Term.

<p>Municipal corporations — city of New York — certiorari—damages caused by raising grade of street — particular use of property.</p> <p>Where, on certiorari to review the determination of the board of assessors of the city of New York in dismissing the relators’ claim for damages, caused by raising the grade of the road in front of their premises, filed pursuant to section 6 of chapter 423 of the Laws of 1903, as amended by chapter 634 of the Laws of 1905, the facts show that the relators have sustained substantial damages, the determination should be annulled and the board of assessors required to ascertain and award the damages.</p> <p>Abutting owners are not limited to the damages caused to the particular use which they made of their lands at the time of the assessment, as it may be temporary.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of May, 1912, upon the verdict of a jury rendered by direction of the court, certain questions of fact having been submitted to the jury, and also from an order entered in said clerk’s office on the 21st day of June, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Acme Portland Cement 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 16th day of April, 1912, denying the defendant’s motion to vacate a warrant of attachment.

Appeal by the plaintiff, The Engineer 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 19th day of May, 1912, upon the decision of the court rendered after a trial at the New York Trial.Term, the jury having been withdrawn by consent, dismissing the complaint in an action to recover damages for breach of contract.

. Motion to set aside an order of this court entered on the 13th day of December, 1912, dismissing the appeal and permitting the defendant to file the necessary copies of the printed papers.

Appeal by the plaintiff, Charles E. W. Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of blew York on the 19th day of July, 1912, upon the decision of the court rendered after a trial at the blew York Trial Term, .a jury having been waived, dismissing the complaint upon the merits.

<p>Appeal by the defendant, the Queen Aeroplane Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Yew York on the 13th day of June, 1912, affirming a judgment of the City Court of the city of Yew York in favor of the plaintiff for $4,316,32, and also affirming an order of the said City Court denying the defendant’s' motion for a new trial; also from an order of the Appellate Term 'affirming an order of the City Court denying a motion to reduce said judgment to the sum of $2,000 and costs. A provision in the order of affirmance reducing the judgment by the sum of $650 is excluded from the appeal.</p>

Appeal by the plaintiff, Joseph McKee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of October, 1912, denying the plaintiff’s motion to vacate an order canceling a judgment.

Appeal by the plaintiff, Matilda Leerburger, 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 4th day of April, 1911, upon the decision of the court rendered after a trial at the New York Special Term in an action brought for a mandatory injunction.

<p>Corporations —■ sale of stock — false representations that stock is fully paid — liability of directors for fraud—pleading — complaint stating cause of action.</p> <p>A bona fide purchaser for value of stock issued as fully paid cannot beheld liable thereon either to the corporation, its creditors or to other persons, even though the stock was not actually paid up as represented.</p> <p>Where persons sell stock of a foreign corporation and the laws of the State in which it is organized provide that no stock shall issue except for money paid, labor done or property actually acquired by the corporation at the actual value thereof, and the seller represents to the purchaser that it is fully paid stock, he is entitled to rely upon the representation, it being a statement of an extrinsic fact and not a mere opinion as to value.</p> <p>Hence, where the complaint of such purchaser in substance alleges that the representations of the defendants, directors of the corporation, that the stock was fully paid and was of great value, were false in that it was issued for inadequate values, and that he relied upon said representations believing them to be true, the complaint, seeking to hold the directors for the fraud, is not subject to demurrer.</p> <p>Directors of corporations are now held strictly accountable for false statements made for the purpose of inducing the public to purchase stock at more than its real value.</p> <p>Dowling, J., dissented.</p>

Appeal by the defendants, Edward Ashforth and others, from an order of the Supreme Court, made at the New York Special' Term and entered in the office of the clerk of the county of New York on the 26th day of July, 1912, denying the said defendants’ motion for judgment on the pleadings.

<p>Schools — license of principal of public schools, city of Mew York — charter construed — issuance of permanent license discretionary.</p> <p>Under the charter of the city of Mew York a principal of a public school must be appointed from the eligible list after examination and must be licensed, being a part of the teaching staff, although there is no express provision of the charter requiring principals to be licensed.</p> <p>Although under the authority of the city charter the board of education has enacted a by-law providing that licenses to teachers shall be issued for one year and may be renewed for two successive years if the holder’s work be satisfactory, and at the close of the third year the city superintendent may make the license permanent, the issuance of a permanent license is within the discretion of the city superintendent.</p>

<p>Appeal from Municipal Court in Second Department — constitutional law —section 310 of the Municipal Court Act providing for creation of Appellate Term is constitutional—Appellate Term is branch of Supreme Court—appeal from decision of Appellate Term to Appellate Division does not lie in Second Department.</p> <p>Section 310 of the Municipal Court Act of the city of New York, empowering the Appellate Division of the Second Department' to authorize appeals from said court to be held before justices designated by it, and to be known as the Appellate Term in the Second Department, does not violate section 3 of article 6 of the State, Constitution, conferring upon the Appellate Division the jurisdiction “now exercised by the Supreme Court at its General Terms,” etc.</p> <p>The right of appeal is not guaranteed by the Constitution. It is a privilege which the Legislature may give or take away.</p> <p>The Supreme Court is one court whether at Trial, Special or Appeal Term, The Appellate Term is part of the Supreme Court and the Legislature had power to establish such term.</p> <p>It is immaterial that the Legislature has not positively directed that the appeal from said court should be before three justices, but has made it determinative with the Appellate Division whether it shall direct the appeal to be held before one or three justices or before itself.</p> <p>The Legislature in section 310 of the Municipal Court Act provided'but one appeal in the Second Department from said court,' whether heard before a justice or justice's of the Appellate Division, or by the Appellate Term. Hence, there is no appeal from a decision of the Appellate Term to the Appellate Division in the Second Department.</p> <p>Said provision relating to appeals in the Second Department is not unconstitutional on the ground of discrimination, in that second appeals are allowed in the Hirst Judicial District. This, because appellants in the Second Judicial District are a class, and the statute operates uniformly upon them.</p>

Appeal by the plaintiff, the Borough Bank of Brooklyn, 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 24th day of June, 1909, 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 7th day of June, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Railroad — negligence—injury to intoxicated person while attempting to board moving train—facts not showing negligence of defendant subsequent to contributory negligence of plaintiff.</p> <p>The rule that there may be a recovery in a negligence action notwithstanding the contributory negligence of the person injured if the defendant after such contributory negligence could have avoided the accident by exercising ordinary care is based .upon the theory that the subsequent omission of duty is the sole, direct and proximate cause of the injury. Said rule does not apply where the plaintiff’s intestate, having been grossly intoxicated at the defendant’s railroad station early in the evening and having partially recovered later in the evening, was killed while attempting to board a moving train, for it was the negligence of the intestate in attempting to board the train which was the direct, proximate cause of his death. There was nothing which the defendant could have done after such contributory negligence which would have avoided the accident.</p> <p>The failure of the defendant railroad to refuse the intestate access to the station or to assign an employee to watch him while intoxicated did not, under the circumstances, constitute negligence.</p>

Motion by the plaintiff, Oscar W. McEwen, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Orange Trial Term in December, 1911.

<p>Judgment — motion to compel payment of money held by third party.</p> <p>A defendant having obtained a money judgment in an action brought against him by a receiver who has deposited funds in a bank to her credit as receiver cannot, by motion, compel the bank summarily to pay over the fund to him where the bank.was not a party to the suit.</p>

Appeal by the defendant, Samuel Gray, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 27th day of October, 1911, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 20th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Long. Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of January, 1912, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 16th day-of January, 1912, denying the defendant’s motion for a new trial.

<p>Appeal by the defendant, Barauch Schneider, from a judgment of the Oounty Court of Kings county, rendered against him on the 12th day of June, 1911, convicting him of the crime of arson..</p>

Appeal by the defendant, Stephen A. Donlon, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 21st day of December, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, setting aside a deed of real property.

Appeal by the plaintiff, Antonio Collelli, 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 26th day of February, 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 Kings County Trial Term.

Appeal by the defendant, Elsa H. Naumburg, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 8th day of July, 1912.

Appeal by the defendants, Henry V. R. Skillin and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 11th day of April, 1912, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Appeal by the plaintiff, Emil Leske, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 2.3d day of May, 1911, upon the decision of the court, rendered after a trial at the Westehester Special Term, dismissing the complaint.</p> <p>Appeal by the defendants, Pfautz & Miller Realty Company and others, from so much of said judgment as directs that the complaint be dismissed without hearing and determining certain issues raised by the answers of the said defendants served upon the remaining defendants, and also, as stated in the notice of appeal, from the decision of the court, entered in said clerk’s office on the 27th day of May, 1911, denying the said defendants’ motion to proceed with the issues raised by the answers, with notice of an intention to bring up for review an order entered in said clerk’s office on the 27th day of May, 1911, denying their motion to proceed with the trial of the issues raised by the answers of the several defendants.</p>

Appeal by Louisa Niederstein, as guardian, etc., and others, from so much of a decree'of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 2d day of July, 1912, as grants the People of the State of New York a right of preference in the payment of their claim against the estate.

Re argument of an appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of March, 1912, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 4th day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William W. White, 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 Suffolk on the SHh day of July, 1912, amending a judgment of divorce and directing the husband to provide a sum of money weekly for the support and maintenance of a child of the marriage.

<p>Crime —maintaining house for prostitution — information, when insufficient —when lessee of building not guilty for failing to act on unsworn statement of police officer.</p> <p>An information charging that the defendant, a lessee of premises, is maintaining a disorderly house and place for the practice of prostitution in - violation of section 1146 of the Penal Law is insufficient where in substance it merely shows that the lessee was informed by a policeman that certain sub-tenants were common prostitutes.</p> <p>A police officer speaks, with no greater authority than any other citizen upon such matters, and the statement aforesaid did not call, upon the defendant to take any active steps. The fact that she remained inactive did not make her guilty of a misdemeanor under said section, for the knowledge of the police officer was not her knowledge.</p> <p>In order that the occupant of premises may be charged with a violation of said section it is necessary that she have knowledge that her subtenants have been convicted as common prostitutes, or knowledge of facts which would justify a conviction if brought t'o the attention óf the courts. The mere unsworn statement of a policeman is insufficient.</p>

Appeal by the defendant, The Warden of the City Prison, from an ex parte order of the Supreme Court, made at the Kings County Special Term, bearing date the 18th day of September, 1912, and entered in the office of the clerk of the county of Kings, as modified by an order dated the 2d day of October, 1912, and entered in said clerk’s office, sustaining a writ of habeas corpus and discharging the relator from custody.

Appeal by the defendant, John Lyon, as county comptroller of Nassau county, from ah order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 20th day of July, 1912, directing the issuance of a peremptory writ of mandamus.

<p>Appeal by the defendant, the Read Realty Company, from a judgment of the Supreme" Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 7th day of March, 1912, iipon the decision of the court rendered after a trial at the Queens County Special Term.</p>

Appeal by the plaintiff, Oelia Feyer, 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 7th day of May, 1912, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendants, the Rapid Transit Subway Construction Company and another, from an order of the Supreme Court, made at the Kings County Special Term and entered.in the office of the clerk of the county of Kings on the 18th day of May, 1912, denying the said defendants’ motion for an order requiring the plaintiff to serve an amended complaint.

<p>Master and servant — negligence — injury of employee greasing wheel at top of elevator shaft — violation of uniform practice — recovery denied.</p> <p>Where it was the uniform practice, known and understood by all parties ' concerned, that the wheel carrying a cable at the top of an elevator shaft should not be greased until the elevator reached the highest floor of the building when the employee engaged in doing such work would call to the operator of thevar and cause him to halt it until the greasing was completed, an employee, with knowledge of such practice, who reached his arm over such wheel for the purpose of greasing it while the elevator was on the ground floor, cannot recover for injuries sustained . by the starting of the elevator.</p> <p>Hirschberu and Carr, JJ,, dissented.</p>

Re argument of an appeal by the plaintiff, Caroline H. Brown, 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 2'7th day of March, 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 New York Trial Term. (See 152 App. Div. 933.)'

<p>Intoxicating liquors—Liquor Tax Law, section 8, subdivision 9, construed— “ abandonment ” of traffic in liquors—when new certificate cannot be issued for same premises — notice of abandonment byassignee of certificate.</p> <p>Under subdivision 9 of section 8 of the Liquor Tax Law, added by the Laws of 1910, chapter 494, providing that “3STo liquor tax certificate shall hereafter be issued for traffic in liquors, under the provisions of subdivision one of this section, for any premises in any town, village, borough or city, unless or until the ratio of population therein, to the number of certificates issued under the provisions of said subdivision one, shall be greater than ¡seven hundred and fifty to one, and then only pursuant to the provisions of this subdivision; but this prohibition shall not apply to any premises in which such traffic in liquors was lawfully carried on at some time within one year immediately preceding the passage of this act, provided such traffic was not abandoned thereat during the said period,” the word “ abandoned ” refers to an actual cessation of traffic in liquors. The right of abandonment and transfer to other premises belongs to the owner and holder of the liquor tax certificate and not to the person in possession of the premises either as owner or-lessee.</p> <p>Hence, the transferee of a liquor tax certificate, issued for the excise year ending September 30,1910, for premises leased by him in a village where the ratio was about 268 to 1, after a subsequent assignee of said certificate had on September 27, 1910, filed a notice abandoning the traffic in liquors at such premises, is prevented by the provisions of subdivision 9 of section 8 of the Liquor Tax Law from procuring another certificate to traffic in liquors on the same premises during the excise year ending September 30, 1911.</p> <p>An assignee of a liquor tax certificate may serve notice of abandonment and transfer, and apply for a new certificate at the place designated by him.</p>

<p>Negligence — injury by drop of elevator — evidence — erroneous dismissal of complaint — ordinary use of freight elevator — question for jury — burden to disprove negligence.</p> <p>Plaintiff in an action for personal injuries claimed that, while he was pushing a truck, loaded with merchandise, on the car of a freight elevator maintained and operated by the defendant, the car, without action on the part of the operator, suddenly dropped from twelve to fifteen inches, and by reason thereof he was thrown down and injured, Evidence examined, and held, that the complaint should not have been dismissed;</p> <p>That there was sufficient evidence to go to the jury upon the question whether or not this was an ordinary Use of the freight elevator, to which defendants had consented;</p> <p>That, if this was a proper use for the elevator, the unexplained drop in . the car was such an unusual occurrence that the defendants should ■ have been called upon to show that they were not at fault.</p>

Separate appeals by the defendants, Corn Exchange Bank and W. & J. Sloane, each from so much of an order of-the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of October, 1912, as grants judgment to the plaintiff on the pleadings against such appellant.

<p>Contract by corporation and its president with attorney—rescission — . fraudulent representations and concealment — complaint — demurrer — accounting.</p> <p>A corporation and its president relying upon the representations of the attorney of the former, conveyed to the attorney legal title to the property and assets of the corporation, in order that he might effect extensions of mortgages against the property and otherwise extricate the corporation from its financial difficulties. Some of the mortgages were liens on an award due from the city of New York. Complaint in an action by the president of the corporation against the attorney and others examined, and held, that it fails to state a cause of action for the rescission of the contract for fraudulent representations or concealment,</p> <p>That demurrers should be sustained with leave to plaintiff to amend his complaint so as to state a cause of action for an accounting, and for such other relief as the facts may Warrant.</p>

Appeal by the defendant, George S. Meyer, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Orange on the 5th day of October 1912, denying the defendant’s motion for judgment on the pleadings.

Appeal by the plaintiff, Marion 0. Faraci,. from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of August, 1912, vacating and setting aside a warrant of attachment.

Appeal by the defendants, Audley Clarke and others, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 15th day of May, 1912, denying the said defendants’ application to have the judgments entered herein vacated or modified by striking therefrom certain portions which appellants claim to have been inserted contrary to the order of the court.

Appeal by the defendant, Frank 0. Reisler, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 28th day of May, 1912, denying an application to have the several judgments entered in the above-entitled actions vacated and set aside.

Appeal by the defendant, James Butler, Incorporated, from a judgment of the Court of Special Sessions of the city of New York, rendered against the defendant on the 22d day of January, 1912, convicting him of a violation of the Labor Law and imposing a fine of $500, which was paid under protest.

<p>Will — trust — unlawful suspension of power of alienation — period not measured by lives in being — distribution of property.</p> <p>A testator, after making certain bequests, devised the remainder of his property in trust for the benefit of his wife and children, and provided that the corpus of his estate should not be used unless necessary for their support. The 3d subdivision of his will provides, in part, as follows: “ The trust created by this clause of my will shall cease and determine at the expiration of five years from the date of my death.”</p> <p>He further provided that the trust property should, at the expiration of said five years from the time of his death, be distributed, one-third thereof to his wife and the remaining two-thirds in equal parts between his three children. It was also provided that if any of his children should die with issue before the expiration of the five years their share should descend to such issue, and if any of his children should die without issue then1 share should descend to the survivors, including his widow.</p> <p>Held, that the language of the trust construed with the other provisions of the will clearly indicates the testator’s intent that his entire estate should not be distributed until the expiration of five years after his death;</p> <p>That the trust is invalid as suspending the power of alienation for a period not measured by one or two lives in being at the death of the testator;</p> <p>That the contingent limitations over at the end of the trust period of five years are also invalid;</p> <p>That the property, both real and personal, must be distributed as if the testator had died intestate.</p> <p>Burr, J., dissented, with opinion.</p>

Appeal by the defendant, the Star Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of September, 1912, resettling an order entered in said clerk’s office on the 24th day of August, 1912.

Appeal by the plaintiff, Joseph Barbera; from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 1st day of October, 1912, changing the place of trial from the county of Queens to the county of New York.

Appeal by the defendant, William Barrett Shaw, 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 11th day of October, 1912, adjudging him guilty of contempt of court.

Appeal by the defendant, The Fibre Conduit Company, from a judgment of the Supreme .Court in favor of the ■ plaintiff, entered in the office of the clerk of the county of Rockland on the lYth day of April, 1912, upon the verdict of a jury. for $3,500, and also from ,an order entered in said clerk’s office on the 13th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Hollenbeck, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 20th day of May, 1912, upon the decision of the court rendered after a trial at the Fulton Special Term.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 26th day of July, 1912, upon the decision of the court rendered after a trial at the Otsego Special Term.

Appeal by the plaintiff, Howard T. Morthrup, from a judgment of the Supreme Court in favor of the defendant, Edmon Coon, entered in the office of the Clerk of the county of Rensselaer on the 25th day of June, 1912, upon the decision of the court rendered after a trial at the Rensselaer Trial Term, a jury having been waived, dismissing the complaint herein.

Appeal by the defendant, Emma Mann Wray, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 5th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day on June, 1911, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes. .

Appeal by the plaintiff, Charles F. Frederick, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 17th day of May, 1912, denying the plaintiff’s motion to restore the case to the general calendar for trial.

<p>Appeal by the defendant, the County of Cortland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 16th day of February, 1912, upon the decision of the court rendered after a trial at the Broome Special Term.</p>

Appeal by the defendant, the Canasawacta Knitting Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on. the 28th day of July, 1911, upon the decision of the court rendered after a trial at the Broome Special Term.

Appeal by the defendant,. Margaret P. Scully, 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 20th day of May, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of June, 1912, denying the defendant’s motion for a new trial m'ade upon the minutes.

<p>Appeal by the plaintiff, Tuscarora Club of Millbrook, New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 20th day of July, 1912, upon the decision of the court rendered after a trial at the Delaware Special Term.</p>

Appeal by the plaintiff, George J. H. Crowe, as trustee, etc., 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 12th day of April, 1912, upon the decision of the court, rendered after a trial at the Broome Trial Term, the jury having been discharged, dismissing the complaint upon the merits.

<p>Will — trust of real estate: for a specific period or for the lives of two persons in being—when no suspension of power of alienation — when trust determines ofi expiration of specific period although persons upon whose lives it is limited survive — when trust estate passes under residuary clause—when remainderman must account to other remaindermen.</p> <p>A will which devises lands to executors in trust for a period of nineteen years from the date of the will, the net profits to be paid to the testator’s wife and daughter “during said nineteen years or during the lives” of the wife and daughter “and the survivor of them,” does not unlawfully suspend the power of alienation.</p> <p>A trust may be limited for an arbitrary period of time provided the termination at an earlier period is called for by the expiration of two lives in being at the creation of the trust.</p> <p>But under the will aforesaid the trust ends with the expiration of the nineteen years, although the persons upon whose lives the trust is limited survive said period.</p> <p>Where said will contained a general residuary clause covering both real and personal property which was devised and bequeathed to certain persons, the real property on the termination of the trusts by the expiration of the ninetéen years fell into the residuary estate and passed to the residuary legatees rather than to the heirs of the testator.</p> <p>A general residuary clause broadly specifying all real and personal property takes and holds all of the property of the testator which is not legally disposed of by other provisions of the will.</p> <p>Where the residuary estate was bequeathed to the testator’s wife for life with remainders over, the daughter of the testator upon whose life the trust was limited being one of the remaindermen and having been in possession of the lands after the widow’s death, should be compelled to account to the other devisees for the rents and profits from the date of said death.</p>

Appeal by the defendants, Claremont E. Smith and another, 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 Broome on the 4th day of September, 1912, denying the defendants’ motion for a retaxation of costs.

Appeal by the defendant, The Erie 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 Steuben on the 6th day of March, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 26th day of February, 1912, denying the defendant’s motion for a new trial made upon the minutes.

o Appeal by the defendant, Solomon Schinasi, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1912, upon the report • of a referee in an action for the specific performance of a contract for the sale of real estate.

Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of January, 1912, sustaining a writ of habeas corpus and discharging the relator from custody.

Appeal by the plaintiffs, Archibald S’. White and others, 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 22d day of October, 1912, as grants a separate trial at Special Term of the issues tendered by the counterclaims of the defendant Shonts and the reply thereto, and also from so much of an order entered in said clerk’s office on the 13th day of November, 1912, as…

Appeal by the defendant, James 0. Stewart, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of May, 1912, denying the defendant’s motion for judgment on the pleadings.

Appeal by the defendant, Charles Miller, 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 15th day of July, 1912, denying the said defendant’s motion for judgment on the pleadings.

Appeal-by the defendant, Alice Hawley Truax, as administratrix, 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 8th day of July, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.

<p>Trust — partial revocation pursuant to section 23 of the Personal Property Law — said section retroactive.</p> <p>The owner of an undivided interest in an estate executed a deed of trust conveying all the property bequeathed to her to certain trustees upon two trusts and a power in trust. The two trusts were: First, to pay any and all debts of • the owner, which has been done, and the second, to receive all the rents and profits of the assigned estate, and to pay the same, less the trustees’ charges, and expenses, to the owner for life. The power in trust was to transfer and convey the principal of said estate, and the balance of the income remaining in their hands, upon the death of the owner, “ to such person or persons and in such manner as maybe designated in the last will and testament ” of said owner. The corpus of the fund in the hands of the trustees, except the home occupied by the owner, was in contemplation of law personal property.</p> <p>Held, that the plaintiff, being the sole beneficiary of the trust, is entitled, under section 23 of the Personal Property Law to revoke said trust to the extent of $10,000, and to require the trustees to pay over such sum.</p> <p>Said section of the Personal Property Law is by its terms expressly made retroactive.</p>

Appeal by the defendant, the New York Herald 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 14th day of March, 1912, overruling the defendant’s demurrer to the complaint.

Appeal by the plaintiff, George Herbert Smith, 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, sustaining the defendant’s demurrer to the complaint in an action for libel.

Appeal by the defendant, William M. Barrett, as president, 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 16th day of November, 1912, requiring the defendant to make its answer more definite and certain.

<p>Appeal by the plaintiff; David Lippmann, 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 28th day of October, 1912, granting the motion of the defendant, The People of the State of New York, for an order dismissing the complaint as against the said defendant in an action for the foreclosure of a tax lien.</p>

Appeal by the defendant, The National Reserve Bank of the City of New York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 9th day of April, 1912, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, and also (as stated in the notice of appeal) from, a judgment of the City Court entered on the 15th day of April, 1912, upon said order of affirmance.

Appeal by the plaintiff, Lena Hyman, 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 6th day of July, 1912, upon the decision of the court, rendered after a trial before the court at the New York Special Term, dismissing the complaint.

Appeal by the defendants, Bernat Zicherman and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the officé of the clerk of the county of Mew York on the 29th day of February, 1912, upon the decision of the court rendered after a trial at the Mew York Special Term in an action to foreclose a mechanic’s lien,

Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of December 1911, sustaining a writ of habeas corpus and discharging the relator from custody.

Appeal by the defendant, Murray and Hill Company, from a judgment of the Supreme Court in favor of the plaintiff, entered hi the office of the clerk of the county of New York on the 12th day of June, 1912, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 1.7th day of June, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles Carlesi, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against him on the 23d day of February, 1912, convicting him of the crime of forgery in the second degree as a second offense, and by which judgment he was sentenced to imprisonment for the term of twelve years and eleven months.

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 1st day of June, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, the Press Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of July, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 5th day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Husband and wife — domicile — when wife may acquire separate domicile— action for separation — when wife abandoned in foreign country cannot maintain action here.</p> <p>The domicile of a husband is prima facie that of his wife. But where a wife, for sufficient reason leaves her husband, she may acquire a separate domicile for the purpose of enforcing her rights.</p> <p>The domicile of origin is presumed to continue until a new one is acquired, and the burden of proving the change rests upon the party alleging it.</p> <p>Domicile is the place where one has his true, fixed, permanent home and principal establishment, to which whenever he is absent he has an intention of returning.</p> <p>It seems, that where a husband and wife were married in a foreign country which was their original domicile and the husband there abandoned his wife and came to this country, leaving her without support, and she remained in that country, she cannot maintain an action for separation in this State on the theory that her domicile followed that of her husband.</p> <p>Even assuming that she obtained a constructive domicile in this. State because her husband came here, she cannot maintain an action for . separation in our courts unless she was a resident when the action was commenced, for the statute requires both parties to be residents of the State when the action is commenced in order that the court may have jurisdiction.</p>

<p>Principal and agent — employment of agent to sublet — no authority to change terms of payment — when payment to agent not payment to principal.</p> <p>Although a tenant employed the agent of her landlord as her own agent to sublet, which she was entitled to do, and he executed a sublease by Which the rent was payable to him as agent, that gave him no authority to change the terms of the lease.</p> <p>Hence, where the agent induced the tenant to pay rent to him in advance, in consideration of a discount, and converted the sums received to his own use, the principal may recover the rent of the sub-tenant.</p> <p>.As the sub-tenaht knew the- terms of the lease, on paying in a manner not provided for therein he was bound to know the authority of the agent . to receive payment, and he made it at his peril.</p>

Appeal by the plaintiff, Solomon L. Pakas, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of May, 1912, upon the verdict of a jury for thirteen dollars, and also from an order entered in said clerk’s office on' the 7th day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Contract — action to recover balance of installments due—judgment for plaintiff on pleadings denied—when judgment for installments a bar to subsequent action for balance — counterclaim put in issue not disposed of by judgment entered upon defendant’s default.</p> <p>Where in an action to recover the balance of the installments due under a contract for the tale of books the plaintiff annexes to the complaint the pleadings in a former action, and the defendant answers and admits the recovery of a former judgment against him by default for installments due, and pleads a counterclaim substantially the same as in the former action where a reply was served, but claims that the contract provides that a default in the payment of installments rendered the total unpaid balance due and payable, it is error for the court to grant a judgment on the pleadings in favor of the plaintiff.</p> <p>Since all of the installments were due when the former action was brought, the' judgment therein is a bar to a recovery for the balance in this action.</p> <p>The counterclaim which was put in issue by .the reply and which was not tried in the former action because of defendant’s default, had to be disposed of before judgment could be granted.</p>

Appeal by The Lutheran Hospital of Manhattan, a legatee, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 20th day of July, 1912, as refused to admit to probate the 10th clause of the decedent’s will.

Separate appeals by the defendants, the Union-Buffalo Mills Company and others, and by Frederick T. Fleitmann and others, copartners, etc., from orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1912, requiring the defendants to make their answers more definite and certain.

Appeal by the defendant, Mamie Hitsch McDermott, 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 'Tth day of June, 1912, granting the plaintiffs motion for judgment on the pleadings and appointing a referee to take proof.

Appeal hy William F. Schneider, as county clerk, 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 12th day of November,. 1912, directing the said county clerk to file and enter, without the payment of a fee, an order requiring the plaintiff to give security for costs. '

Appeal by the defendant, Alfredo -Lobo, 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 10th day of May, 1912, resettling an order entered on the 29th day of April, 1912, and denying the said defendant’s motion for a judgment on the pleadings.

Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the 'City of New York, 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 6th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of March, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Eliot A. de Pass and others, 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 23d day of September, 1912, setting aside the verdict of a jury in favor of the defendants and granting a new trial.</p>

Appeal by the defendants, Lawson Purdy, president, and others, constituting the board of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1912, denying the defendants’ motions to dismiss a writ of certiorari and directing payment to the relator of certain interest on taxes paid on bank shares.

<p>Appeal by the Onward Construction 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 24th day of July, 1912, confirming the report of a referee in a summary proceeding under section 415 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35).</p>

Appeal by the defendants, Charles A. Youngs and others, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the City Court of the City of New York on the 11th day of March, 1912, which order affirmed a judgment of the City Court of New York in favor of the plaintiffs, arid also affirmed an order of said court denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Eugene Manett, from a judgment of the Court of Special Sessions of the city of New York, rendered against the defendant on the 1th day of November, 1912, convicting him of the crime of impairing the morals of a child contrary to section 483 of the Penal Law.

■ Motion by the plaintiff, Lawrence E. Sexton, as trustee, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the defendants rendered by direction of the court after a trial at the New York Trial Term in February, 1912.

<p>Corporation—when foreign corporation not doing business in this State — principal and agent —sale through commission merchant — confirmation of contract made by agent.</p> <p>A foreign stock corporation manufacturing goods in another State and having no office for the transaction of business here is not doing business within this State within the meaning of section 15 of the General Corporation Law merely because it consigns its manufactured products to a commission merchant doing business here, authorizing him to sell, receive the proceeds and remit the same. Under such circumstances it is the commission merchant who does business here, not the foreign corporation.</p> <p>Hence, where such commission merchant in its own name made a contract for the sale of goods manufactured by the foreign corporation the latter ■ may show that it confirmed the sale as one made on its behalf and may sue in our courts for the breach of the contract of sale, although it was not licensed to do business here.</p>

<p>Proceedings by the. Association of the Bar of the City of New York against the respondent, an attorney of this court.</p>

Appeal by Joseph J.. McKenna, through Joseph J. Unger next friend, from an order, made by a justice of the Supreme Court and entered in the office of the clerk of the county of New York on the 5th day of December, 1912, dismissing a writ of habeas corpus and remanding the relator. The opinion delivered on the dismissal of the writ is reported in People ex rel. McKenna v. Kennedy (78 Misc. Rep. 482).

<p>Debtor a,nd creditor — discharge of judgment debtor from imprisonment — ex parte application — when sheriff not liable for escape.</p> <p>Where a judgment debtor, imprisoned for contempt in refusing to turn over property as ordered, applies foi- a discharge from imprisonment under section 775 of the Judiciary Law, the right of the adverse party to notice of the motion depends upon the circumstances of the case.</p> <p>Where such motion is made and granted ex parte, but the adverse party should have received notice, the order of discharge is merely irregular and may be vacated.</p> <p>But although such judgment debtor has been ordered discharged from' ' imprisonment on an ex parte application under circumstances where notice to the judgment creditor should have been given, the sheriff is justified nevertheless in obeying the order and in discharging him from imprisonment. Hence he is not liable in an action brought by the judgment creditor for an escape, as the court did not lack jurisdiction to grant the order of discharge.</p>

<p>New York city — application for confirmation by Appellate Division of report of commissioners as to construction of subway — objections — confirmation of prior report not res adjudicata — preparation of plans by Public Service Commission — compliance with Rapid Transit Act.</p> <p>On an application to the Appellate Division for the confirmation of the report of commissioners, appointed pursuant to section 18, article 3 of the Constitution, to determine whether a subway should be built over a certain route in the city of New York, evidence taken before the commissioners and objections to their report examined, and held, that the report should be confirmed.</p> <p>A prior confirmation by the court of a report that a subway should not be constructed over said route is not res adjudicata.</p> <p>The general plans adopted by the Public Service Commission sufficiently complied with the provisions of the Rapid Transit Act and were sufficient to confer jurisdiction upon the court.</p>

Appeal by the plaintiff, Herman H. Oppenheimer, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 9th day of May, 1912, as resettled by an order entered, therein on the 1st day of July, 1912, reversing a judgment of the City Court of the city of New York in favor of the plaintiff and dismissing the complaint; also from the judgment of the City Court of the city of New York, entered in the office of…

Appeals by the plaintiffs, Robert 0. Morris, as receiver, etc., and William Henkel, Jr., as trustee, etc., respectively, from two judgments' of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of April, 1912, in each case upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

<p>Railroad — negligence — admissibility of testimony of deceased witness given on former trial — Code of Civil Procedure, section 830.</p> <p>In an action brought by an administratrix against a railroad company to recover for the death of her daughter who was struck by defendant’s train at a crossing.and killed, it is reversible error to refuse to permit the defendant, pursuant to section 830 of the Code of Civil Procedure, to read the evidence of a flagman of the defendant, who has died since, testifying on the trial of a prior action against the defendant by the plaintiff as administratrix of her son to recover for his death in the same accident, as identically the same persons are entitled, to share in any recovery in either action, and the testimony of the flagman was of such a character that its exclusion may have seriously prejudiced defendant.</p> <p>Laughlin, J. dissented. ,</p>

Separate appeals by the defendants, The City of New York and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1912, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 22d day of March, 1912, denying the defendants’ motions for a new trial made upon the minutes.

Appeal by the plaintiffs, Martin M. Schultz and others, a copartnership, 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 June, 1912, upon the-verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of June, 1912, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendant, Charles Bihler, 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 28,th day of May, 1909, convicting him of the crime of libel.

Appeal by the plaintiff, Emanuel J. Myers, as trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1912, denying the plaintiff’s motion for judgment on the pleadings.

<p>"Will — trust — authority of surviving trustees to convey real property.</p> <p>Where a will provides that, if the number of trustees thereunder shall be reduced to less than three, then the survivors shall (with the approval of the cestui que trust, if of full age, but otherwise without such approval) increase them number to not less than three nor more than five persons, and after the death of one of the three trustees appointed by the will, the cestui que trust, being of full age, refuses to consent to the appointment of a successor, the survivors may without application to the Supreme Court convey a marketable title to real property held in trust.</p>

• Appeal by the plaintiff, John Holmstrom, 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 16th day of February, 1912, upon the dismissal of the complaint by direction of the court at-the close of plaintiff’s case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 9th day of March, 1912, denying the plaintiff’s motion to set aside the…

Appeal by the plaintiffs, Hugo N. Schloss and another, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 1st day of August, 1912, upon the decision of the court rendered after a trial at the New-York'Special Term in an action for the foreclosure of certain mechanics’ liens filed by said defendants against premises situate at the southeasterly corner of Two Hundred and Twenty-ninth…

Appeal by the plaintiff, John Mason, from two orders 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 November, 1912, respectively, granting two motions to vacate an order for the examination of certain of the defendants before trial.

Appeal by the plaintiff, the Title Guarantee and Trust 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 15th day of April, 1912, upon the report of a referee, dismissing the complaint upon the merits.

<p>Partnership — contract between attorneys to share profits and losses in prosecution of claims — when suit in equity for accounting lies — when sharing profits creates joint venture.</p> <p>Where an attorney at law having been retained to prosecute certain causes for a contingent fee, and being attorney of record, agreed with' ■another attorney that the latter should act as counsel whenever required to do so; that each party should pay one-half of the expenses incurred in the prosecution of the claims, and that the profits should be equally divided between them, With a further provision that should either of the attorneys die before the termination of the litigation or the receipt of the fee, the survivor should carry on the prosecution and the heirs of the one dying should be entitled to the compensation of the decedent, the attorneys occupied the relation of joint venturers rather than that of employer and employee. Hence, where the attorney of record has received moneys under. his contract of retainer the other attorney having acted as counsel may maintain a suit in equity for an accounting and is not limited to an action at law.</p> <p>It seems, that an agreement to share, profits is not an infallible test as to whether the parties thereto are joint venturers. The question is, is the share in the profits a measure of compensation for services rendered or for money loaned in aid of the enterprise, or does the agreement go further and provide for a proprietary interest in the subject-matter out of which the profits may arise, and an ownership in said profits as compensation for money advanced or services rendered as principal in the prosecution of the enterprise.</p> <p>A mere recital in an instrument, if incorrect, is not conclusive upon the rights of the parties,</p> <p>Hirschbero, J., dissented. ‘</p>

Appeal by the plaintiff, Girard Nugent, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of June, 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 said complaint.

<p>Appeal by the relator, Robert Simpson Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of. the clerk of the county of Kings on the 21st day of May, 1912.</p>

<p>Appeal by the defendants, William H. Hanking and others, constituting the board of assessors, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Rockland on the 20th day of November, 1912, confirming the report of a referee.</p>

Appeal by the plaintiff, Milton L’Ecluse, from an order of the Supreme Court, made at the Suffolk Trial Term and entered in the office of the clerk of. the county of Suffolk on the 27th day of February, 1912, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial.

<p>Appeal "by the defendants, William E. Harmon 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</p>

<p>Principal and agent—sale of stock by agent of corporation with, guaranty to resell if investment deemed to be unwise — ratification of guaranty—evidence — investigations as to value of stock — trial — failure to move to strike out answer.</p> <p>Where the employee of an agent engaged in selling preferred stock of a corporation induced a sale by a written guaranty signed by him to resell the stock at the purchase price if a relative of the purchaser deemed the investment to be unwise after an investigation of the business of the corporation, etc., and a check payable to the purchaser and indorsed by her in blank was indorsed by the corporation and deposited to its own credit, and it appears that the corporation issued the stock with knowledge of the guaranty, the jury in an action to recover the purchase price upon the ground that an investigation had shown the investment inadvisible was justified in finding that the-defendants ratified the guaranty.</p> <p>As the guaranty authorized the purchaser’s brother to reject the investment if he deemed it unwise “ after a careful and complete analysis of the operation and general character of the business ” of the defendants it was not error to allow the brother as witness for the plaintiff to testify that through communications with brokers and others he learned that the market value of the stock was one-half the sum the plaintiff paid for it. This, because it was necessary for the plaintiff to establish that the investigation had been made.</p> <p>Moreover, an objection to the question relating to the investigation by the witness should have beep made before the answer was given, and a reversal is not necessary because, the court refused to strike the answer from the record, for the defendant should have requested the court to instruct the jury to disregard it.</p>

<p>Appeal by the defendants, Edmund.Felgenhauer and others, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of February, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 20th day of February, 1912, denying the defendants’ motion ■ for a new trial made upon the minutes.</p>

Appeal by the plaintiff, the Manhattan Bridge Three-Cent Line, from an order of the Supreme Court, made at the Kings-County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of November, 1912, vacating a temporary injunction and denying the plaintiff’s motion to continue the same pendente lite.

Appeal by the defendant, Louis Kaplan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of March,' 1912, upon the. verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 2d day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.

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

Motion by the plaintiff, Joseph Gl. Myers, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the dismissal of-the complaint at the close of plaintiff’s case by direction of the court on a trial at the Kings County Trial Term in June, 1912.

<p>Crime — criminally receiving stolen goods—receiving stolen goods from boys under sixteen years óf age — when receiver of stolen goods not principal in crime of larceny.</p> <p>A person who receives goods from boys under sixteen years of age, taken unlawfully and under circumstances which would generally constitute larceny, may be convicted of the crime of receiving stolen goods, as defined in section 1308 of the Penal Law, although the boys are only punishable as juvenile delinquents under section 2186. of the Penal Law. The fact that a person holds himself out to others as willing to purchase any goods which they may get, regardless of the manner in which they get them, does not so clearly make himself a principal in the crime of larceny as to destroy the character of his act in receiving the goods.</p>

Appeals by the defendant, George P. Merwin, from two judgments of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of June, 1912, Upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, The Warden or Keepers of the City Prison, 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 15th day of October, 1912, sustaining a writ of habeas corpus and discharging the relator from custody.

Appeal by the plaintiff, Samuel Lipstein, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Kings on the 22d day of May, 1912, upon the dismissal of the complaint by direction of the court upon the opening, and also from an order entered in said clerk’s office on the 23d day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Procter and Gamble Manufacturing 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. 8th day of May, 1912, upon the verdict of a jury for $12,500 (reduced by stipulation of the plaintiff pursuant to direction of the court to $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…

Appeal by the defendant, the Hudson and Manhattan 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 Rockland on the 4th day of May, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Master and servant — negligence — injury to driver by breaking of wagon tongue — evidence — issues.</p> <p>In an action to recover for personal injuries it appeared that while the plaintiff, a servant of the defendant, Was backing a team from a shed the tongue broke, permitting the right wheel to turn under the floor of the truck, thereby throwing a heavy casting upon plaintiff’s leg. The ' plaintiff claimed that the tongue was “defective, rotten and worn out,” and the single issue presented on the question of defendant’s negligence was whether he furnished a reasonably safe tongue or pole.</p> <p>Evidence examined, and held, that since the presence of alleged sun cracks in the pole did not impute negligence to the defendant; that since the evidence failed to show the injurious presence of worm holes discoverable upon inspection, or that, if they visibly existed, they made the pole unsafe, and since the court submitted to the jury the question as to the grain of the wood, which was not an issue raised on the trial, a judgment for the plaintiff should be reversed and a new trial granted.</p>

Appeal by the defendant, Hartog Veld, from a judgment of the County Court of Kings county, rendered against • the defendant on the 20th day of April, 1911, convicting him of the crime of perjury.

Appeal by the defendant, Max Naimark, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 13th day of May, 1912, convicting the defendant of the crime of perjury and sentencing him for á term of not less than five years nor more than ten years, and also from an order denying the defendant’s motion for a new trial,

Appeal by the defendant, John T. Rafferty, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Kings on the 23d 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.

<p>Release —action to rescind agreement releasing possibility of sharing in estate — release obtained without fraud or coercion — when suit for rescission does not lie.</p> <p>A testator left his estate'to his widow for life, at her death to three children named, share and share alike. He further provided that in case of the death of any child before the widow leaving issue surviving, the share of the One so dying should go to the issue but in the ease of the death of a child before the widow without issue his share should go to the surviving children equally. The widow is still" alive and one of the sons died without issue, leaving a will whereby he gave all his property to a personal friend, the plaintiff. After the payment of the son’s debts there was nothing left for his legatee other than such possible rights as he might have under the prior will. Being in destitute circumstances, one of the remaindermen, without fraud or coercion, induced the plaintiff to assign all his possible interest in her father’s, estate in consideration of a sum of money to be placed in a bank, income to be paid to him for life and the principal to his next of kin upon his death, an instrument to that effect being drawn up and signed. Thereafter the plaintiff repudiated the agreement upon the ground that he had been overreached in that he had not been informed of the size of the estate in which he had released his claims.</p> <p>Held, that owing to the facts that the plaintiff’s interest in the estate was problematical, and as through lapse of time and otherwise he had had ample opportunity to learn the size of the estate and as the defendant to whom he released bore no fiduciary relation to him, a suit to rescind the agreement does not lie.</p>

Appeal by the defendant, The National Fire Insurance Company of Hartford, Connecticut, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings 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 same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Ebling Brewing Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 18th day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The President and Trustees of the Village of Ossining, 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 8th day of July, 1912, upon the decision of the court, rendered after a trial at the Westchester Special Term, enjoining the defendant from interfering with the laying of gas pipes in the village of Ossining.

<p>Crime — assault, second degree —facts justifying conviction — evidence — discrediting defendant’s witness—hearsay.</p> <p>Appeal from judgment convicting the defendant of the crime of assault in the second degree. Evidence examined, and held, sufficient to justify a conviction.</p> <p>The fact that the defendant, charged with cutting the complaining witness with a razor, did not deny that he had the razor or did the cutting, when taking the stand in his own behalf, raises a strong presumption of guilt.</p> <p>Where a police officer testified that the complaining witness stated at the station house that he did not know who cut him, it is not error to allow the assistant district attorney to testify that he talked with the officer over the telephone and was informed by him that he was looking for the defendant. Such testimony is not hearsay, but goes to the credibility of the defendant’s witness.</p>

Appeal by the defendant, The Westchester Street Railroad Company, from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county, on the 11th day of April, 1912, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 15th day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John Wanamaker, New York (Incorporated), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of January, 1912, upon the verdict of a jury for $16,000, and also from an order entered in said ' clerk’s office on the same day, denying the defendant’s motion for.a new trial made upon the minutes.

Appeal by the defendant, Charles L. Feltman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of September, 1912.

Appeal by the defendant, the Peerless Motor Oar Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of May, 1912, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 14th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Michael Kennedy, from a judgment of the Supreme Courj; in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of April,</p> <p>1912, 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. 1</p>

Appeal by the plaintiff, George P. Merwin, 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 2d day of June, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, Vincenzo Buccufurri, 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 23d day of October, 1912.

<p>Appeal by the defendants, Jacob Goldman 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 27th day of April, 1912, upon the verdict' of a jury for $1,500, and also from an order entered in said clerk’s office on the 9th day of May, 1912, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Bessie H. Hunt, 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 15th day of May, 1912, denying the defendant’s motion to set aside interlocutory and final judgments of divorce.

Appeal by the plaintiff, Marianna Denaro, 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 19th day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the New York Telephone Company, from a final order of the Supreme Court, made at the Rock-land Special Term and entered in the office of the clerk of the county of Rockland on the 21st day of May, 1912, confirming the report of commissioners in a condemnation proceeding.

Appeal by the plaintiff, the Bachmann-Bechtel Brewing Company, from an interlocutory judgment of the Supreme Court in favor of the defendant; entered in the office of the clerk of the county of Kings on the 20th day of June, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer to the amended complaint.

<p>Appeal by the plaintiff, Harvey Murdock, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 27th day of July, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer to the complaint interposed by the defendants Holt and Ammerman, and also from an order entered in said clerk’s office on the' 11th day of July, 1912, granting the motion of the defendants Leeming and Brooklyn Trust Company, as executors, etc., of Leonard J. Busby, deceased, for judgment on the pleadings.</p>

Appeal by the defendant, the Terry and Tench 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 23d day of February, 1911, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Landlord and tenant—summary proceedings — waiver of defects in petition — oral tenancy from year to year — emblements—when tenant cannot remove crops after termination of term — rights of landlord where tenant holds over — effect of conveyance by landlord with notice to quit.</p> <p>Defects in the form of a petition in summary proceedings to remove a tenant are waived where the parties agreed to proceed to try the proceeding upon its merits.</p> <p>An oral lease of a farm not specifying the duration of the term creates a tenancy from year to year, and the tenant has no right to remove crops which mature after the termination of the lease unless there is an express agreement to that effect or the facts raise an estoppel in the tenant’s favor.</p> <p>A tenancy from year to year may be terminated at the end of any year by either the landlord or the tenant without previous notice of an intention so to do.</p> <p>Where a tenant from year to year holds over after the expiration of any particular year the landlord has the option of treating him as a wrongdoer and bringing proceedings to eject him, which may be done without notice to quit, or he may waive the right to possession and recover the rent for another year.</p> <p>Where a landlord notified a tenant having an oral lease of a farm from year to year that she had sold the premises and that thereafter he would have to deal with her grantee and the latter never recognized the tenant as such but notified him to desist from cultivating the farm and to remove therefrom, he is not entitled to. harvest crops which matured after the expiration of the lease.</p>

Appeal by the plaintiff, Joseph Saitoh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 18th day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of June, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Danford W. Dean, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 30th day of September, 1910, upon the verdict of a jury, and also from an order bearing date the 23d day of September, 1910, and entered in said clerk’s office, denying the said defendant’s motion. for a new trial made upon the minutes.

<p>Sale — parol warranty that goods shall equal sample — warranty survives acceptance — measure of damage on breach of warranty — failure to prove facts upon which damages can be estimated.</p> <p>An express parol warranty that goods sold shall be equal to a sample shown to the buyer survives acceptance of the goods.</p> <p>Where material is sold under an express warranty as to quality the measure of the purchaser’s damages on a breach thereof is the difference between the value of the material if it had been as warranted and the actual value, if the defects were discovered by the purchaser before using the material; it is not the difference between the value of goods manufactured from the material and the value they would have had if the material had been as warranted.</p> <p>Where the plaintiff offers no evidence upon which damages can be ascertained under the proper rule aforesaid a judgment in his favor will be reversed.</p>

<p>Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of October, 1911, upon the verdict of a jury for $4,000, and also from an order entered on the 4th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes. This is an action to recover for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant’s chauffeur in operating an automobile owned by defendant and in which he was riding.</p>

<p>Appeal from an order of the Supreme Court, entered in the Mew York county clerk’s office on the 12th day of Movember, 1912, denying the defendant’s motion to set aside the service of a subpoena duces tecum, by which a third person in supplementary proceedings was directed to produce certain books and papers.</p>

<p>Appeal from an order of the Supreme Court, entered in the Mew York county clerk’s office on the 1st day of Movember, 1912, denying a motion to vacate an order for the examination of plaintiff before trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 16th day of January, 1912, dismissing the complaint at the close of the case in an action to recover damages for personal in j mies.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 1st day of Hovember, 1912, directing the defendant to serve a bill of particulars.</p>

Motion to dismiss an appeal by the defendant, Thomas F. Smith, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 13th day of November, 1912.

<p>Settlement of an order of this court modifying a judgment of the Special Term.</p>

<p>Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the New York county clerk's office on the 8th day of April-, 1913.</p> <p>Judgment and order affirmed, with costs. Ho opinion. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. (Ingraham, P. J., and McLaughlin, J., dissented.)</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 11th day of April, 1912, dismissing the complaint after a trial at Trial Term.</p>

Appeal by the defendant from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of June, 1912.

Appeal by the petitioner, Edward H. Barnum, from an order of thé Special Term, entered in the office of the clerk of the county of Kings on .the 19th day of August, 1912.

Appeal by William R. Ware and Edward J. Ware, as trustees, etc., from so much of an order of the Supreme Court, made at Special Term, and entered in the office of the clerk of the county of Westchester on the 5th day of June, 1911, as denies then motion for an allowance of counsel fees in excess of the sum of $2,000.

53, being the franchise tax on the franchise exercised by the Oneonta and Mohawk Valley Railroad Company for the year ending June 80, 1908. Order affirmed, with ten dollars costs and disbursements. All concurred, except Houghton, J., dissenting in opinion.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 25th day of January, 1912.

<p>Judgment and order unanimously affirmed, with costs.</p>

Order construing the order of reference reversed, without costs of either party, and judgment vacated and matter remitted to the Special Term to pass upon the report of the referee. Matter may be brought before the Special Term by motion for confirmation thereof.

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 6th day of July, 1912, on a verdict, and from an order entered on the 5th day of July, 1912, denying a motion for a new trial.</p>

<p>Cross-appeals from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 4th day of August, 1911, upon a decision of the Special Term in an action for an accounting, with notice of an intention by the plaintiff to bring up for review an order entered on the 5th day of September, 1911.</p>

<p>Appeal from judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 14th day of December, 1911, on the report of a referee.</p>

<p>Practice — complaint — default.</p>

<p> Sale—payment—burden of proof. </p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 8th day of June, 1912, upon a verdict and from an order entered on the 7th day of June, 1912, denying a motion for a new trial.</p>

<p>Appeal from an'order of the Supreme Court, entered in the New York county clerk’s office on the 8th day of May, 1912, directing the' sale .of certain stock of the judgment debtor.</p>

- Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 14th day of May, 1912, sustaining a demurrer and dismissing the nomplaint.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 22d day of November, 1912, granting the defendants’ motion for a bill of particulars.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 10th day of July, 1912, upon the dismissal of the complaint at the close of the plaintiff’s case in an action for negligence.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 29th day of October, 1912, sustaining a writ of habeas corpus and discharging relator from custody.</p>

<p> Practice—charges against attorney. </p>

<p> Appeal—dismissal for failure to print case. </p>

of the Supreme Court, entered in the New York county clerk’s office on the 6th day of July, 1913, upon the decision of the court at Special Term.

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

Appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 6th day of June, 1913.

<p>Appeal by the plaintiff from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Queens on the 15th day of November, 1913, denying his motion for an order extending time to make and serve a case on appeal to the Appellate Division from a judgment and order.</p>

Appeals by the defendant from judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 29th day of January, 1912, and from orders entered in said office on the same day, denying motions for a new trial.