Volume 155 — New York Appellate Division Reports

Arpead by the plaintiff, Maybelle A. Judd, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 4th day of December, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 19th day of December, 1911, denying the plaintiff’s motion for a…

Appeal by the defendant, Frank T. Dance, from a judgment of the Supreme Court In favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 2d day of December, 1910, upon the verdict of a jury for $300, and also from an order bearing date the 19th day of October, 1910, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frank Nappa, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 22d day of January, 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 Erie Trial Term, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the New York State Railways, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 24th day of May, 1912, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Donald McLeod 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 Onondaga on the 10th day of June, 1912, upon the decision of the court rendered after a trial at the Onondaga Special Term.

Appeal by the defendants, Maurice B. Patch and others, as commissioners, 'etc., and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 11th day of June, 1912, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the defendant, Arthur S. Light, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 23d day of September, 1912, granting leave to Edward A. McCarty, as ancillary executor, etc., of Edward McCarty, the above plaintiff, deceased, to issue execution upon the judgment obtained in the above-entitled action.

Appeal by the defendant, the Syracuse, Lake Shore and Northern 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 Onondaga on the 20th day of March, 1912, upon the verdict of a jury for $6,300, and also from an order entered in said clerk’s office on the 19th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 19th day of March, 1912, upon the decision of the court rendered after a trial at an adjourned term of the Ontario Trial Term held in Monroe county, a jury having been waived.

Application by the directors of the Frontier and Western Railroad Company for an order directing the issuance of a certificate of public convenience and a necessity by the Public Service Commission, Second District.

Motion by the defendant, The Auburn Telephone Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a jury having rendered a verdict in favor of the plaintiff after a trial at the Cayuga Trial Term in May, 1912.

Cross-appeals by the plaintiff, the Tradesman’s National Bank of Conshohocken, and the defendant, George C. Boldt, Sr., from a judgment of the Supreme Court, entered in the office of the clerk of the county of Jefferson on the 8th day of February, 1910, upon the report of a referee in favor of the plaintiff and against the defendants George C. Boldt, Sr., and J. Franklin Whitman Company, and dismissing the complaint as to the other two defendants.

Motion by the defendants, Delano D. Cottrell and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the verdict of a jury in favor of the plaintiffs, rendered by direction of the court upon a trial at the Steuben Trial Term in January, 1911.

Appeal by the defendant, the Boro Oil and Gas Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of April, 1912, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the plaintiff, Julius 0. Drucklieb, 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 December, 1912, granting a motion made by certain of the defendants for judgment on the pleadings, as resettled by an order entered in said clerk’s office on the 31st day of December, 1912, and also from the said order resettling the first order.

Appeal by the defendants, Moses M. Valentine and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of October, 1912, overruling the defendants’ demurrer to the complaint.

Appeal by the plaintiffs, Louisa A. Davids and another, as executors, etc., from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of April, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiffs’ demurrers to six of seven separate and further defenses interposed by defendant to plaintiffs’ amended complaint.

Appeal by the defendants, J. Horace Harding and others, doing business under the firm name, 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 26th day of Hovember, 1912, overruling the defendants’ demurrer to the complaint.

Appeal by the defendant, the Barber Asphalt Paving 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 15th day of April, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 25th day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Trust—when one deprived of property by fraud may impress a trust thereon or on the proceeds—failure to connect money procured by fraud with property alleged to have been purchased therewith — complaint — demurrer.</p> <p>One who has been deprived of his property by fraud may, in ease he can identify it or trace the proceeds derived from its sale, impress a trust upon it or the proceeds, whether in the hands of the wrongdoer or any person who takes title through him, unless it be in good faith and for value, even though at the time the trust is sought to be impressed the wrongdoer is insolvent.</p> <p>But in every case the, property upon which it is sought to impress the trust must be shown to be either the property of which the cestui que trust was defrauded or proceeds derived therefrom. There must be a direct and unbroken connection between the two.</p> <p>In a suit to impress a trust upon certain cotton in the possession of the defendants upon the theory that it was purchased with funds obtained from the plaintiffs by fraud, it was alleged in substance that a firm of merchants drew foreign drafts payable to its own order and attached thereto forged bills of lading, each purporting to cover a certain number • of bales of cotton consigned to its own order; that it indorsed the drafts and bills of lading and forwarded them to its agent with directions to sell; that plaintiffs, relying upon the forged bills of lading, purchased the drafts; that the cotton was never shipped nor was any part of the drafts paid; that the firm, to facilitate the remittance of the moneys •paid by plaintiffs, drew certain currency drafts upon its agent and deposited them in its local bank, which forwarded them to them correspondents, where the same were paid by the firm’s agent with the money received from the plaintiffs. The currency drafts were not deposited for collection, but were mingled with other credit accounts of the firm. Subsequently the firm purchased the cotton in question and paid for the same by checks on such accounts. Some of the cotton thus purchased was transferred to the defendant Weld in consideration of an antecedent debt, and the balance passed to the firm’s trustee in bankruptcy.</p> <p>Held, that the fact that the currency drafts were accepted and paid by the firm’s agent with moneys fraudulently obtained from the plaintiffs by means of other drafts and forged bills of lading did not entitle them to have a trust impressed upon the cotton because it did not appear that the same had been purchased with their money.</p> <p>The complaint fails to state a cause of action and a demurrer thereto should be sustained.</p>

Appeal by the defendants, James D. Irving and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of April, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of May, 1912, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Charlotte Bacon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of September, 1912, granting the plaintiff’s motion for judgment on the pleadings, and also from the judgment entered in said clerk’s office on the same day pursuant to said order.

Appeals by the plaintiff, Sara E. Stockert, 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 8 th day of July, 1912, upon the decision of the court rendered after • a trial at the New York Special Term.

Appeal by the defendant, Willard Wilson, 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 19 th day of June, 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>Municipal corporations — certiorari to review action of police commissioner in removing officer — proof justifying removal.</p> <p>Certiorari to review the proceedings of the police commissioner of the city of New York in removing the relator as a member of the police department. He was charged, first, in his examination of an applicant for a third class engineer’s license with having asked the applicant certain questions bearing on his qualifications for the position by prearrangement, tending to defeat the just purpose of the examination; and, second, with falsely stating that he had not talked with another member of the police force on the day of the examination. Evidence examined, and held, that the relator was properly removed.</p> <p>In order to justify the removal of a police officer it is not necessary that the proof of misconduct should be sufficient to warrant an indictment.</p> <p>Scott and Dowling, JJ., dissented.</p>

Appeal by the defendant, Charles Vitusky, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, rendered against him oh the 23d day of February, 1912, convicting him of the crime of an attempt to commit the crime of extortion.

<p>Principal and agent—authority to indorse cheeks drawn to order of principal “ for exchange only ” — misappropriation of proceeds of checks by agent — knowledge of principal that agent exceeded his authority.</p> <p>Action against a bank to recover moneys alleged to have been received by it to the use of the plaintiff’s assignor, being the proceeds of checks made by the assignor’s customers to its order and indorsed by its sales agent, deposited to the credit of his individual account, and subsequently appropriated by him. It appeared that the agent had express authority to collect for sales either in cash or by obtaining checks from customers on local banks, in which case he was instructed to indorse the name of his principal as payee “for exchange only” and to obtain in exchange therefor cashier’s checks or other exchange, and to remit the same to his principal. As a matter of fact the agent opened a personal account with the defendant bank, which permitted him for three years thereafter to deposit to his individual account checks made to the order of his principal, to which he remitted at various times by exchange purchased by his individual check. An auditor of the agent’s principal went over his accounts and reported them as correct.</p> <p>Held, that as the auditor must have discovered the manner in which the agent conducted his principal’s business, the latter was charged with notice of the fact that the agent did not follow its instruction to indorse the checks “for exchange only,” and hence neither the principal nor its assignee can recover from, the bank the sums misappropriated by the agent.</p>

<p>Sale — guaranty that automobile will prove satisfactory—agreement that vendor may attempt to put vehicle in condition — principal and agent — payment induced by representation of agent that guaranty continues — recovery of purchase price — evidence — appeal — reinstatement of general verdict.</p> <p>Where the vendor of a motor truck guaranteed in writing to refund the purchase price if the vendee should decide that the truck was unsatisfactory at any time within fifteen days from delivery, less fifteen dollars for every day the truck was operated, the vendor to be given an opportunity to make the machine satisfactory before it was returned, it is error, in a suit by the vendee to recover the purchase price paid, to refuse to admit testimony to the effect that the truck proving unsatisfactory and the vendor’s agent having attempted to put it in a satisfactory condition, induced the vendee to pay the balance of the purchase price after the fifteen days’ limit had expired, in consideration of an oral promise to repay the pinchase price pursuant to the guaranty if the machine was not made satisfactory.</p> <p>Under the circumstances aforesaid the payment of the balance of the purchase price was subject to the terms of the guaranty, and on the-failure of the vendor to perform within a reasonable time the vendee was entitled to a return of the amount paid.</p> <p>Even though the vendor’s agent had no original authority to change the written contract, the vendor on accepting the vendee’s money became liable to return it if the payment was induced by the aforesaid representations by its agent.</p> <p>As the agent represented the vendor as respects the performance of its contract and required payment by the vendee, his principal is charged with knowledge of the negotiations.</p> <p>Under section 1317 of the Code of Civil Procedure, as amended by chapter 380 of the Laws of 1913, the Appellate Division may reinstate a general verdict rendered by a jury, although the court had reserved the decision of a motion to dismiss made before the verdict.</p>

Appeal by the plaintiff, the China and Japan Trading Company, Limited, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of June, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint.

Appeal by the defendant, Susan A. Penfield, 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 20th day of November, 1911, upon the decision of a referee to whom the issues had been referred to hear, try and determine.

Appeal by the defendant, Carl Bonwit, 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 13th day of May, 1912, affirming an order of the Municipal Court of the city of New York setting aside the verdict of a jury in favor of the defendant and directing a new trial.

Appeal by the plaintiff, Giovanni B. Lobravioo, 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 26th day of January, 1910, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, the Interborough Rapid Transit Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of August, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, The Manhattan Storage and Warehouse Company, from an interlocutory judgment of the Supreme Court in favor of the defendant Benguiat Art Museum, entered in the office of the clerk of the county of New York on the 14th day of November, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendant’s demurrer to the complaint.

Appeal by the defendant, Fred Frudenberg, from a judgment of the Court of Special Sessions of the city of New York, rendered against him on the 9th day of December, 1912, convicting him of a violation of the sanitary code, and also from an order entered in said court on the 29th day of November, 1912, disallowing the defendant’s demurrer to the information.

Appeal by the defendant, Gertrude Furthmann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1912, resettling an order entered on the 13th day of December, 1912, denying the defendant’s motion for a bill of particulars.

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of Special Sessions of the city of New York, rendered on the 21st day of August, 1911, sustaining a demurrer interposed by all the defendants to an information.

Appeal by the plaintiff, Charles Gr. Riehl, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of April, 1912, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Heller, Hirsh & Company, 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 13th day of January, 1913, as denies the plaintiff’s motion to examine certain designated witnesses in Philadelphia upon oral questions.

<p>Appeal by the plaintiff, Charles G. Riehl, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of April, 1912, upon the dismissal of the complaint hy direction of the court after a trial at the New York Trial Term.</p>

<p>Municipal corporations—lease of subways, city of New York — taxpayer’s action to restrain execution of contract by Public Service Commission—pleading — necessary allegations — constitutional law —Rapid Transit Act relating to subways constitutional — determination of amount to be retained by lessee of subway—depreciation of plant — when no waste of municipal property — public hearing — terms upon which railroad company may issue bonds.</p> <p>A taxpayer suing to restrain the Public Service Commission for the first district from executing contracts for the construction of rapid transit railroads in the city of New York must allege that the act to be restrained was either an illegal official act under section 51 of the General Municipal Law, or that it will tend to waste or injure the property, funds or estate " of the city, which acts may be enjoined in an action brought under section 1925 of the Code of Civil Procedure.</p> <p>Under the Rapid Transit Act, as amended by chapter 226 of the Laws of 1912, the Public Service Commission for the first district in co-operation with the municipal authorities of the city of New York has power to execute contracts for the construction of rapid transit railroads in said city, and said statute, as amended, does not violate that provision of the Constitution which prohibits municipal corporations from giving money or property or loaning the same in aid of any individual, association or corporation.</p> <p>The question as to what sum a lessee of subways in the city of ISTew York may retain from its net earnings, under the authority of sections 24 and 27 of the Rapid Transit Act, as amended, is for the Public Service Commission to determine. So also, it is for the Commission to determine, in arriving at the net income, whether the corporation shall be charged a certain sum for the depreciation of its plant each year.</p> <p>Where the lessee of such subways makes good out of its earnings any depreciation in its plant by renewals and repairs during the year, no allowance for such depreciation is necessary in arriving at the proportion of the net income which it may retain.</p> <p>As the Public Service Commission has made many, contracts, some of which may be advantageous to the railroad companies leasing the subways, and others which are more favorable to the city, a single item in a contract cannot be attacked unless it appear that as a whole there is a waste of or injury to the city property.</p> <p>The mere fact that the Public Service Commission arrived at a certain sum as the net earnings of such railroad company without a further deduction for depreciation for which no disbursement is at present required, does not warrant the inference that the Commission is acting either fraudulently or in bad faith, or that the contracts will result in a waste of public funds.</p> <p>Where proposed contracts between said Public Service Commission and the railroad companies were submittnd to the public as required by law, and a hearing and discussion thereof has been had, there need not be a further public hearing merely because some amendments were adopted as the result of public criticism, for the Commission is specifically authorized to modify the contracts after such hearing.</p> <p>The determination of the Public Service Commission granting to such railroad permission to issue bonds cannot be reviewed in a taxpayer’s action.</p> <p>Moreover, the contract with such railroad company has nothing to do with the terms upon which it may be allowed to borrow money, as the city is not concerned therewith so long as the contributions for interest and amortization to be paid out of the receipts are calculated upon the amount invested and not upon the amount of the bonds issued.</p>

Motion to certify question to the Court of Appeals on an appeal from an order of this court denying a motion for a temporary injunction. (See 155 App. Div. 213.)

<p>Tax—transfer tax on legacy to divorced wife of son—renunciation of portion of legacy—rate of taxation.</p> <p>Where a testatrix having directed her executors to pay to her son, who survived her, the income from a certain portion of her estate, with remainders over, further directed them to pay to the son’s former wife who had obtained a divorce from him, the income of $60,000 as an annuity for life or so long as she shall remain unmarried, the former wife was not the “wife or widow of a son” within the meaning of the Tax Law.</p> <p>A legatee may renounce a legacy, and it is then taxable not as if taken by the legatee but as if originally given by the will to those who then take it, and such rule holds where a legatee renounces only part of the legacy.</p> <p>Hence, where the annuitant aforesaid in consideration of the settlement of certain litigation renounced two-thirds of the annuity, a transfer tax of five per cent should be imposed upon the third retained by her while the other two-thirds should be taxed at one per cent.</p>

<p>Evidence —presumption — death after disappearance for seven years — decedent’s estate — accounting of administrator — duty of surrogate to make determination as to death of next of kin.</p> <p>Where an unmarried woman disappeared without a known cause, leaving her personal effects behind her, and nothing concerning her can be discovered after diligent search, she is presumed to be dead after the expiration of seven years from the date of her disappearance.</p> <p>The surrogate on the judicial settlement of the accounts of the administrator of an estate in which the person who so disappeared would have shared, should determine the fact of her death and order a distribution to the other next of kin. It is not necessary that such determination be made in a separate proceeding brought for that purpose.</p>

Appeal by the plaintiff Maria J. Ventriniglia, 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 or about the 28th day of June, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

Application to discipline an attorney based upon the report of an official referee on charges made by the Association of the Bar of the City of New York.

<p>Appeal by the defendant, Henry Maus, 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 November, 1912.</p>

<p>Husband and wife — divorce — evidence — circumstantial evidence — judicial notice of proceedings in action which appear from records.</p> <p>Action for divorce. Evidence examined, and held, that an interlocutory judgment in favor of the plaintiff should be affirmed.</p> <p>As adulterous acts are naturally secret and clandestine, proof thereof may be circumstantial and indirect.</p> <p>Although the Appellate Division may take judicial notice of proceedings in an action which appear from its own records, it cannot on appeal by a defendant from an interlocutory decree of divorce take judicial notice of medical testimony which was taken on behalf of a corespondent as a basis for an application for a jury trial on the issue of her culpability, the order denying which trial was affirmed on a former appeal.</p>

<p>Appeal by the defendant, Wilbur S. Scudder, 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 1st day of July, 1912, upon an order entered in said clerk’s office on the 25th day of June, 1912, directing judgment upon a demurrer to a counterclaim set up in the amended answer, and striking out of the said answer a denial and certain defenses as false, sham, irrelevant and frivolous, with notice of an intention to bring up for review the said order.</p>

<p>Appeal by the defendants, The City of New York and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, enjoining the continuance of certain trespasses by the defendants.</p>

Appeal by the plaintiff, John Reis 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 23d day of December, 1912, dismissing plaintiff’s complaint upon the pleadings and permitting the plaintiff to amend the complaint.

<p>Appeals by the defendants, The City of New York and others, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 7th day of May, 1912, upon the decision of the court rendered after a trial at the Queens County Special Term.</p>

Appeal by the defendant, The Hudson County Consumers Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 24th day of November, 1911, upon the verdict of a jury for $4,000, and also from an order bearing date the 27th day of February, 1912, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James McOutcheon, 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 16 th day of December, 1911, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 20th day of December, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Dina Barkenthien, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 31st day of July, 1912, upon the decision of the court, rendered after a trial at the Queens County Special Term, dismissing the complaint.

Appeals by the plaintiff, Samuel Meredith Strong, and certain of the defendants from parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 22d day of November, 1911, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, Henry W. Poor, 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 October, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes.

<p>Corporations—receivers—appointment of receiver of property of insolvent foreign corporation situated in this State — attachment — motion to set aside receivership and reinstate attachment — appeal—when question of summary removal of receiver should not be considered.</p> <p>The defendant, a foreign corporation, having as its chief asset a contract with the city of New York for the construction of a part of the Catskill aqueduct, became financially embarrassed and entered into a contract with the Gr. F. Company, having offices in New York city, by the terms of which said company was to have one-half of the profits from the aqueduct contract in consideration of certain advancements to defendant. It was also provided that during the continuance of the contract the Gr. F. Company should have control of the majority of the board of directors of the defendant, its president remaining as a member, and that all of the stock of the defendant should be pledged or delivered to the Gr. F. Company. The president of the Gr. F. Company was the dominating spirit of the entire transaction and was elected vice-president of the defendant. Upon the failure of the president of the Gr. F. Company to apply money received under the aqueduct contract to the payment of claims for labor and materials, creditors of the defendant brought an action in the State of Pennsylvania and a receiver was appointed, and ancillary receivers of the property in this State were also appointed. Although this order restrained creditors or others from interfering with the property of the defendant, the Gr. F. Company with other creditors attached the same, and also brought suit in the United States Circuit Court asking for the appointment of a receiver. Later, after the Pennsylvania receivership had been vacated upon the ground that the plaintiff in that action was not a judgment creditor, but a motion made in this State to set aside the order appointing ancillary receivers had been denied, by agreement among all the parties in interest it was arranged that a judgment should be procured against the defendant on certain promissory notes and an action brought thereon asking for the appointment of a receiver, the completion of the aqueduct contract, and the final distribution of the funds. The president of the Gr. F. Company was appointed one of the receivers upon the express understanding that the attachment held by said company should be vacated. The attachment was thereupon vacated and the president of the Gr. F. Company and another appointed receivers. Three years later, a large part of the work having been performed, a motion by the Gr. F. Company to have the receivership set aside upon the ground that the court was without jurisdiction to make the order, to have its attachment reinstated, and to have its president, who had been summarily removed as one of the receivers, reinstated was denied.</p> <p>Held, that the order denying the motion to set aside the receivership should be affirmed. Even if the Gr. F. Company is aggrieved, it is estopped to urge the point because it has accepted the benefits of the order to which it had assented.</p> <p>A receiver of the property of an insolvent foreign corporation situated in this State may be appointed to preserve the property pendente lite for the protection of the interests of New York creditors.</p> <p>Since the president of the Gr. F- Company is not a party to this appeal and has not objected to his summary removal as a receiver and there is no claim that the work has been jeopardized by such removal, the question is not germane to the present proceedings.</p> <p>Burr, J., dissented in part, with opinion.</p>

<p>Will — trust — stock dividend — income from trust estate — evidence — conversation of surviving trustee with deceased life tenant — section 829 of the Code of Civil Procedure—waiver of objection.</p> <p>A testator gave the residue of his estate to his widow and a nephew, in trust to collect and pay the income to the widow during her life and the remainder to other persons including the nephew. Among the assets of the trust estate were certain shares of capital stock. Later the corporation which issued the stock apportioned its surplus among its stockholders by the issuance of additional stock of which the trustees received their proportion. The executor of the widow’s will upon an accounting by the nephew, the surviving trustee, claimed the additional stock as income of the trust estate.</p> <p>Held, that upon such an accounting testimony of the nephew as to a conversation between himself and the deceased life tenant tending to show that there was an understanding that the additional stock should be held as principal, admitted over objection made under section 829 of the Code of Civil Procedure, justifies a reversal of the surrogate’s decree and the granting of a new trial.</p> <p>The introduction in evidence by the nephew of the trustee’s account prepared by himself and of vouchers signed by the life tenant did not open the door to him to testify to any conversation with her.</p> <p>The cross-examination of the nephew as to the knowledge of the life tenant relating to the details of the trust estate, did not waive the exception and objection to the incompetent evidence already admitted.</p>

<p>Appeal by the plaintiffs, Prospect Park and Coney Island Railroad Company and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 3d day of January, 1913, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

<p>Will—successive life estates with, remainder to class — suspension of power of alienation — partial invalidity of will — action by remainder-man for partition.</p> <p>A testatrix devised certain real property to her five children for life and provided that upon the death of any of such children those surviving should inherit the life interest of the deceased share and share alike, and that, upon the d@ath of the last surviving child, the property ceasing to be a life interest' should pass to her grandchildren share and share alike. The testatrix left her surviving the five children and certain grandchildren.</p> <p>Held, that the will was not void in its entirety as unlawfully suspending the power of alienation;</p> <p>That the devise in remainder after the termination of the two valid life estates was to a class, namely, the grandchildren of the testatrix;</p> <p>That this remainder vested in them immediately subject to open and let in after-born grandchildren and to be terminated by the death of either during such time;</p> <p>That upon the death of a son, the first child to die after the testatrix, his surviving brothers and sisters each took an estate for life in equal parts in the one-fifth share which he had previously enjoyed for his life;</p> <p>That upon the death of a daughter, the second child to die, the one-fifth part of the estate which she had received for life under the will passed to her surviving brothers and sisters share, and share alike, but upon her death as to the one-fifth share originally given to her deceased brother two successive life estates had run, one in the whole of said one-fifth during her deceased brother’s life and the other in one-twentieth thereof during her life;</p> <p>That the grandchildren then living became vested in possession of said one-twentieth part of the real property and the son of said deceased daughter had an undivided estate in fee and possession of a portion of that one-twentieth part measured by the number of grandchildren then living, which entitled him to maintain an action for partition, and a judgment overruling a demurrer to his complaint should be affirmed.</p>

Appeal by the defendant, Henry Taylor, 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 1st day of April, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Intoxicating liquors — false statements in application — cancellation of certificate —-recovery of penalty of bond—abandonment by tenant under subdivision 9 of section 8 of the Liquor Tax Law— effect upon application by owner for certificate — evidence — “hotel ” —judgment under section 1317 of the Code of Civil Procedure.</p> <p>In an action against the holders of a liquor tax certificate and a bonding company to cancel the certificate and to recover the penalty of a bond, which provided that there was no material false statement in the. application, upon the ground that statements that the premises had been continuously occupied for trafile in liquors since 1860, and that no notice of abandonment had been filed pursuant to subdivision 9 of section 8 of the Liquor Tax Law, were material and false, it appeared that the applicants had purchased the premises subject to a lease; that the tenant in an application for a new certificate in another location had expressly stated that the premises were not to be used as a hotel, and that the tenant, having been actually evicted for several months by alterations made by the applicants, had filed a written notice of abandonment executed by himself alone.</p> <p>Evidence examined, and held, that the premises of the applicants were not used as “ a hotel” within the meaning of the statute, so as to allow them to secure a certificate, notwithstanding the abandonment;</p> <p>That the notice by the tenant was not ineffective because the" owners did not join in executing and acknowledging it;</p> <p>That a judgment dismissing the complaint should be reversed, and judgment awarded to the plaintiff, pursuant to section 1317 of the Code of Civil Procedure.</p>

Appeal by the defendant, the F. & J. Auditore 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 24th day of December, 1912, denying the defendant’s motion, made pursuant to section 976 of the Code of Civil Procedure, to sustain the demurrer to the plaintiff’s complaint and overruling said demurrer.

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

<p>Bailment — duty of bailee to reship goods by carrier used by bailor— when bailee not liable for loss of goods by carrier.</p> <p>A bailee is not required to return goods by the same carrier by which the bailor has sent them.</p> <p>Hence, where a bailor accustomed to send goods to a bailee to perform work thereon by a certain express company sends the same by a different company without instructions as to the manner of then’ return, the instructions being they were to he returned by express, and the bailee delivers them to another express company to be returned and they are lost in transit, the bailee is not liable on the ground that the company was the agent of the bailee.</p>

Appeal by the plaintiff, Rose A. Scully, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of January, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the 29th day of January, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, William E. Wheelock, 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 December, 1912.

<p>Appeal by the defendant, the Greenhut-Siegel Cooper Company, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 16th day of May, 1912, denying the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff for $3,700, and for a new trial.</p>

Appeal by the defendant, Samuel Lakow, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of February, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 8th day of February, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Elizabeth 0. Lemmi, 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 17th day of December, 1912, denying the defendant’s motion to change the place of trial.

<p>Practice — amendment of complaint —costs — provision that original answer of defendant be deemed answer to amended complaint.</p> <p>In an action for personal injuries plaintiff moved at the trial to amend her complaint by inserting additional allegations as to the extent of her injuries. As the defendant claimed surprise, plaintiff asked leave to withdraw a juror, which was granted, and then moved at Special Term to amend her complaint in this respect only. The motion was granted upon payment of ten dollars costs, the order containing a provision that the answer of the defendant to the original complaint should be deemed its answer to the amended complaint, and that the issue should remain as of the original date.</p> <p>Held, that the terms imposed were adequate; that since the amendment allowed did not in any manner change the cause of action, the provision in the order that the defendant’s original answer should stand was not objectionable.</p>

Appeal by the plaintiff, Arne Bolfsen, 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 9th day of March, 1912, upon the dismissal of the complaint by direction of the court on a trial at the Kings County Trial Term, after a partial examination of the plaintiff and one of his witnesses.

Appeal by the defendants, James M. Rodgers 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 24th day of February, 1912, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 27th day of February, 1912, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Steel and Masonry Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 30th day of April, ■ 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 7th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Annie Gilbert, 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 October, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint.

Appeal by the plaintiff, James Eossiter, 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 20th day of June, 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, and also from an order entered in said clerk’s office on the 18th day of June, 1912, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the corespondent, Michael Sullivan, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Orange on the 6th day of ¡November, 1912, denying his motion to vacate an interlocutory judgment of divorce and for permission to come in and defend the action.

Appeal by the defendant, Samuel Smith, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Westchester on the 29th day of July, 1912, granting the plaintiffs’ motion for an injunction pendente lite.

<p>Appeal by the defendants, 0. Le Boy Butler and another, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 1st day of August, 1912, upon the decision of the court rendered after a trial at a Special Term of said County Court.</p>

Appeal by the defendant, Thomas O’Connell^ as clerk of the town of North Hempstead, 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 Nassau on the 17th day of January, 1913.

Appeal by the defendant, Salvatore Major ana, from a judgment of the County Court of Queens county, rendered on the 6th day of November, 1911, convicting him of the crime of grand larceny in the second degree.

Appeal by the plaintiffs, Nixola Greeley Smith Ford and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 5th day of August, 1912, upon the decision of the court, rendered.after a trial at the Westchester Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Julia Pierson Mapes, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Rockland on the 21st day of November, 1912, denying the defendant’s motion to amend a judgment theretofore entered herein to conform to the verdict.

<p>Appeal by the defendant, Joseph Dolan, from an order of the Court of Special Sessions of the city of New York, borough of Brooklyn, entered in the office of the clerk of said court on the 18th day of November, 1910.</p>

Reargument of an appeal by the plaintiff, Mary Smith, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of February, 1912, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. (See 153 App. Div. 912.)

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of November, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to part of the answer to the amended complaint.

<p>Appeal by the defendant, Mabel Z. Disbrow, ■ and her attorney, Franklin Pierce, 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 20th day of December, 1912, striking out a portion of the answer and' imposing costs upon defendant’s attorney personally.</p>

Appeal by the defendant, The Pittsburg Contracting 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 19th day of April, 1912, upon the verdict of a jury for $11,000, and also from an order entered in said clerk’s office on the 2d day of Hay, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John J. Murphy, 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 Kings on the 22d day of November, 1912, granting an application of the defendant Hurley to cancel of record the notice of pendency of this action.

Appeal by the petitioners, Henry Doscher and others, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of December, 1911, deny ing an application to revoke letters testamentary issued to Gesine Engel and for her removal as trustee.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court hr favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 20th day of February, 1912, upon the verdict of a jury in favor of the plaintiff for $11,000, as resettled by an order entered in said clerk’s office on the 18th day of March, 1912, and also from an order entered in said clerk’s office on the 20th day of February, 1912, denying the defendant’s motion…

Appeal by Richard Sandiford 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 Nassau on the 8th day of October, 1912, denying his motion for leave to file an amended answer setting up the defenses, (1) the Statute of Limitations, (2) laches, and (3) negligence on the part of the respondents.

<p>Motion to confirm report of referee.</p>

Appeal by the relators, William McGowan and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of August, 1912, dismissing a writ of habeas corpus theretofore allowed upon the petition of the relators and remanding the prisoners.

<p>Crime — forgery, second degree—proof justifying conviction—evidence — proof necessary to show that one is accomplice as matter of law —when that question for jury—handwriting of accomplice.</p> <p>Appeal from a judgment convicting the defendant of the crime of forgery, second degree. Evidence examined, and held, sufficient to sustain the conviction.</p> <p>In order to be an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as principal or as accessory before the fact.</p> <p>Thus, where a woman, the mistress of one of two accomplices who forged a check, did not see the forged instrument until the forgery had been accomplished, and there is no evidence that she was an accessory before the fact, it is not error for the court to refuse to charge that she was an accomplice as a matter of law, but that question may be left to the determination of the jury on all the evidence.</p> <p>Where one accomplice having knowledge of the handwriting of a fellow-accomplice testifies that a letter sent to him under an assumed name was in the handwriting of his fellow-accomplice, it is properly admitted in evidence without corroboration.</p> <p>The rule in regard to corroboration does not attach to each and every part of the material evidence given by an accomplice. The only corroboration required is testimony tending to show the connection of the defendant with the crime.</p>

Appeal by the defendant, James A. McKinley, 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 2d day of December, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the plaintiff, Michael Di Menna, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 20th day of Movember, 1912, denying the plaintiff’s motion to settle issues for trial by a jury.

Appeal by the defendant, the United Surety 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 8th day of October, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Frederick M. Leonard, 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 New York on the 3d day of June, 1912, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office on the 16th day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Principal and agent — conversion of moneys by managing agent of stockbrokers — forgery of principal’s indorsement by agent — when principal liable to drawer — appeal—final judgment by Appellate Division.</p> <p>Where the agent of a firm of stockbrokers managing a branch office under their name, using their letter heads and authorized to receive payments in cash and by check and to transmit the same to his principals, forged bis principals’ indorsement on checks received from a purchaser of stocks and converted the proceeds, the principals are chargeable with the proceeds of the cheek as moneys received from their agent’s cus- , tomer where the bank upon which the checks were drawn paid the same to the agent. Under the circumstances the defendant cannot escape liability upon the ground that the agent had no actual or apparent authority to indorse his principals’ name upon the checks.</p> <p>Where there is no dispute as to the facts and no question for the jury, as shown by the fact that both parties asked for the direction of a verdict and it is apparent that the respondents cannot upon a new trial produce relevant evidence which will affect the result, the Appellate Division will render final judgment for the appellant.</p> <p>While the delivery of a check for indebtedness is not payment, it becomes payment when the check is paid by the drawee.</p>

<p>Appeal by the defendant, Mary Clementine Smedley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February, 1911, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Fraud—misrepresentations as to value of stock—damages — evidence — exceptions.</p> <p>Where in an action based on fraudulent representations whereby the plaintiff was induced to purchase stock, it was alleged that the defendant fraudulently represented that the par value of said stock was then of a certain book value per share, the measure of the plaintiff’s damage, assuming that the sale of the stock was induced by fraud, would be the difference between what the stock would have been worth at the time of sale if the representations had been true and what it was then actually worth.</p> <p>In such an action it was reversible error to allow the plaintiff to prove over defendant’s objection that some time after the sale similar stock had been sold at auction at much less than he paid defendant, and also that more than a year after his purchase he had sold the stock at private sale for less than he paid for it.</p> <p>Although the defendant did not except to an erroneous charge as to the measure of damages, the error is available under an exception to the reception of evidence thereof and the court’s refusal to dismiss the complaint.</p>

Appeal by the plaintiff, Augusta Wickstrom, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of June, 1912, upon the dismissal of the complaint by direction of the court at the opening on a trial at the New York Trial Term.

Appeal by the Mechanics’ Bank of Brooklyn, intervenor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1913, denying a motion for leave to levy upon the partnership assets in the hands of a receiver pendente Ute, appointed in the above-entitled action.

Appeal by the plaintiff, 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 13th day of December, 1912, requiring the plaintiff to serve an amended complaint separately stating and numbering the causes of action.

<p>Appeal by the plaintiff, Lillian E. Ournen, 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 3d day of April, 1911, upon the decision of the court rendered after a trial at the New York Special Term, except so much thereof as dismisses the defendant’s counterclaim on the merits and decrees that the corespondent named therein recover costs of the defendant.</p> <p>Appeal by the defendant, Bernard V. Ournen, from all of said judgment except the provision therein that the plaintiff’s complaint be dismissed upon the merits, without costs.</p>

<p>Appeal by the plaintiff, John Felcin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of March, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.</p>

Appeal by the plaintiff, Agnes Thompson, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of October, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of November, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Julius Friedel, as administrator, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 1st day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 20th day of November, 1911, denying the plaintiff’s motion…

<p>Beal property—deed — action to enforce covenant to pay pro rata share of cost of improvements — consent in writing — resolution entered upon minutes of corporation.</p> <p>The plaintiff corporation, organized for the purpose of purchasing and developing a tract of land, entered into an agreement with the persons interested therein whereby each agreed to take a specified number of lots and also to take and pay for in cash the entire capital stock of the plaintiff ratably in proportion to the number of lots agreed to be taken by them respectively. They also agreed that, if the capital stock should not be sufficient to pay the cost of improving said property, they would take and pay for in cash pro rata increased capital stock sufficient to meet such cost or would otherwise advance the money necessary for such purpose. The defendant subsequently acquired stock and certain lots from an original incorporator and stockholder of the plaintiff, but thereafter disposed of his stock. His deed contained the following covenant, “That the owner of the premises hereby conveyed will pro rata with all the owners of lots of the tract on said map, pay assessments for improvements on any part of said tract shown on said map, owned by the grantor, its successors or assigns. Provided however that any such improvements be authorized in writing by the owners of a majority of the lots shown on said map.” Subsequently preferred stock was issued and purchased by the stockholders, but was insufficient to pay for all of the improvements made and the plaintiff was obliged to obtain the balance by cash payments from lot owners.</p> <p>In an action against the defendant upon his covenant, held, that upon the undisputed facts the plaintiff was entitled to judgment and its motion to that effect should have been granted.</p> <p>The fact that the defendant had disposed of his stock before the preferred stock was issued and only remained a lot owner did not reheve him from liability under his covenant to pay his pro rata share of improvements.</p> <p>In procuring the consent of a majority of the lot owners to improvements the plaintiff was entitled to count lots which had not been sold and were still owned by it.</p> <p>A resolution entered upon the minutes of the plaintiff consenting to an improvement constitutes a consent in writing within the meaning of the1 covenant in defendant’s deed.</p>

Appeal by the defendants, Stephen Merritt Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of September, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by Florence A. Mustor, contestant, from a decree of the Surrogate’s Court of the county of New York, entered in the said Surrogate’s Court on the 15th day of August, 1912, admitting to probate a paper propounded as the last will and testament of Matthew J. Keeffe, deceased.</p>

<p>Appeal by the plaintiff, Pabst Brewing 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 January5 1913, as resettled by an order entered in said clerk’s office on the 24th day of January, 1913, denying the plaintiff’s motion for judgment, on the pleadings.</p>

Appeal by the defendant, Charles H. Enos, as ancillary executor,, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of March, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Negligence — injury to employee of independent contractor — when owner not liable.</p> <p>In an action against a construction company for injuries received by an employee of one of several independent contractors, it appeared that the defendant caused plans and specifications for a building to be prepared and then sublet the entire work to independent contractors, reserving the right to supervise it for the purpose of insuring compliance with the contracts and plans and specifications. Plaintiff’s employer had the contract for the plastering. Another contract was let for the iron work and still another for marble work which included placing marble slabs over the sheet iron to form the tread of the stairs. Plaintiff sustained injuries by stepping on a strip of sheet iron forming the tread of one of the steps which was not of sufficient thickness to sustain his weight.</p> <p>Evidence examined, and 7leld, that a judgment in favor of the plaintiff predicated upon the theory that the control over the work reserved to the defendant by the several contracts enabled it to specify the time when each contractor should perform his work and that it was guilty of negligence in allowing sheet iron to be placed on the tread in question before the marble contractor was ready to lay the marble slabs or in not having the sheet iron immediately covered with temporary planks, should be reversed.</p> <p>An owner of premises who contracts for the erection of a building thereon owes no duty of active vigilance to protect the employees of one contractor from the negligence of those of another. He is only liable for some affirmative act of negligence upon his part, as by taking some part in the performance of the work other than such general supervision as is necessary to insure its performance in accordance with the contract.</p>

<p>Appeal by the Board of Regents of the University 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 23d day of October, 1912, vacating, canceling and setting aside a certificate signed by the First Assistant Commissioner of Education of the Department of Education of the State of New York, under date of April 12, 1909, and under the seal of the University of the State, addressed to the county clerk of the county of New York and filed in his office on the thirteenth day of the same month, described in the order as a certificate of said Board of Regents, certifying in effect that said Board at a meeting duly held by it on the 1st day of April, 1909, on the unanimous recommendation of a committee duly appointed by the Board of Medical Examiners of the State of New York pursuant to the provisions of section 11, subdivision e, of chapter 344 of the Laws of 1907,' revoked the license of the petitioner to practice medicine and annulled the registration thereof in the office of the clerk of the county of New York, and ordering the county clerk to indorse on said certificate the words “annulled and revoked by order of Court,” and to cancel and erase the word “ annulled ” on the record of the registration of the petitioner, Edward E. Conrad, as a physician and surgeon, kept in said county clerk’s office as required by law.</p>

<p>Railroad—: negligence—injury to passenger from cqllision—evidence — time of accident.</p> <p>Where in an action for personal injuries alleged to have been sustained by the plaintiff in consequence of a collision between a train on which she was riding as a passenger and another train, the allegations of the complaint and the statement in the bill of particulars and the testimony of the plaintiff are all definite and show that the accident occurred on a certain day, she can only recover for an accident occurring on said day.</p> <p>Evidence examined, and held, that a verdict for the plaintiff, after a charge by the court that the plaintiff shall not be confined to the precise time alleged, should be reversed.</p>

<p>Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of January, 1912, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 5th day of January, 1912, denying the defendant’s motion for a new trial made upon the ' minutes.</p>

Appeal by the defendants, Lawson Purdy and others, commissioners, 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 10th day of June, 1912, reducing an assessment on personal property held by the relators as administrators, etc., with the will annexed of Mary E. Brinckerhoff, deceased.

<p>Appeal by the defendants, Levi L. Gans 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 27th day of January, 1913, denying the defendants’ motion for a bill of particulars.</p>

<p>Contract — action to recover for work, labor and services — evidence — payment upon condition.</p> <p>The plaintiffs entered into a contract with the defendant, who was conducting a hotel as executor, to make alterations therein according to plans and specifications procured by the defendant. Although the contract contained no express provision with respect to the order in which the work was to be done a controversy arose between the plaintiffs and the defendant’s manager as to which rooms should be altered first, the manager claiming that it would be necessary to do the work in the rear of the hotel first and not disturb the front until the rear was completed. After considerable delay the defendant took charge of certain parts of the work, made a contract to complete the same and charged the expense to the account of the plaintiffs who had stopped work. Thereafter the defendant offered to pay the plaintiffs a certain amount on account and more when they should make repairs in the front of the hotel and sent them a check together with a letter explaining the conditions of the payment, that the remaining work should not be performed until after the winter season and that all differences should be adjusted upon the completion of the work. There was a conflict of testimony as to whether the plaintiffs accepted this offer.</p> <p>In an action by the plaintiffs, brought after the payment by the defendant, to recover a balance due under the contract less the cost of performing certain work which plaintiffs claim they were prevented from doing, held, that since the contract was silent as to the order in which the work was to be done and one of the plaintiffs had been permitted to give testimony upon the subject, it was error to refuse to allow testimony by the defendant’s manager that it was understood between him and the plaintiffs that the work was to be done without interfering with the business of the hotel;</p> <p>That the court also erred in excluding the letter sent by the defendant to the effect that the check delivered to the plaintiffs on account was given with the understanding that the remainder of the work was to go over until after the winter season and that all questions should be reserved for adjustment until after the completion of the work, and that a judgment for the plaintiff should be reversed.</p>

<p>Appeal by the defendant, Rebecca Greacen, individually and as. executrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 8th day of July, 1912, upon the decision of the court rendered after a trial at the ¡New York Special Term setting aside certain conveyances of real property.</p>

<p>Landlord and tenant — specific performance of executory contract to lease premises — complaint.</p> <p>A complaint in a suit for the specific performance of an agreement to lease certain premises for a period of six years, which does not show whether or not the agreement was in writing, but alleges that “the defendant agreed to lease to the plaintiff and the plaintiff agreed to hire from the defendant ” the premises for the period specified at a certain rental; that the plaintiff was to deposit with the defendant a certain sum as security; that the plaintiff duly performed all the terms of the agreement on his part excepting in so far as he was prevented from so doing by the defendant, but that the defendant has failed and refuses to make the lease and that plaintiff has no adequate remedy at law, states a good cause of action.</p> <p>A court of equity may enforce specific performance of an executory contract to lease premises.</p>

Appeal by the defendant, the Public Service Railway 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 21st day of January, 1913, denying the defendant’s motion to vacate and set aside an order for the service of a summons by publication.

<p>Receiver — suit to set aside assignment — transfer of assigned property-enjoined.</p> <p>Where in a suit to set aside assignments of property it appears that a final judgment for the plaintiff will be ineffectual because the defendant is financially irresponsible save for the property assigned, and that there is grave danger of the transfer of the property pending the action, a receiver pendente lite will be appointed and an order granted restraining the assignee from transferring the property.</p> <p>Laughliií, J., dissented, with opinion.</p>

. Appeal by the plaintiff, J. Harry Hull, as trustee, etc., 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 25th day of June, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendants’ demurrers to the complaint and dismissing the said complaint.

<p>Appeal by the plaintiff, the Union Trust Company of Rochester, 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 25th day of November, 1912, dismissing the complaint.</p> <p>Certain stockholders of the Rochester and Lake Ontario Water Company, of whom R. A. Adams was one, entered into an agreement in writing with certain persons called trustees, whereby they agreed to transfer their shares of stock to the trustees and to receive in exchange therefor so-called voting trust certificates, the stock to be held by the trustees under certain terms and conditions therein stated. The shares of stock were transferred and the voting trust certificates received by the shareholders accordingly. The certificate received by Adams, over which this controversy arises, is in the following form:</p> <p>“This certifies that on the 1st day of July, 1915, R. A. Adams will be entitled to receive a certificate or certificates for one hundred full paid Shares of One Hundred Dollars ($100) each in the capital stock of the Rochester and Lake Ontario Water Company, and in the meantime to receive payments equal to the dividends, if any, collected by the undersigned voting trustees upon a like number of such shares of capital stock of said Company standing in their names until the first day of July, 1915.</p> <p>“ The voting trustees shall, until that date possess and be entitled to exercise all rights of every name and nature, including the right to vote in respect of any and all such stock; it being expressly stipulated that no voting right passes to the holders hereof by or under this certificate or by or under any agreement, express or implied.</p> <p>“This certificate is issued pursuant to the terms of an agreement in writing dated July 1st, 1910, made and entered into between stockholders of said Company and said voting trustees, which agreement is on file with the Rochester Trust and Safe Deposit Company, of Rochester, New York.</p> <p>“This certificate is transferable only on the books which shall be kept for that purpose by said voting trustees, by the registered holder hereof, either in person or by attorney duly authorized according to rules which shall be established for that purpose by said voting trustees and on surrender hereof; and until so transferred, said voting trustees may treat the registered holder as owner hereof for all purposes whatsoever, except that delivery of said certificates hereunder shall not he made without the surrender hereof.</p> <p>“This certificate is not valid unless signed by the duly authorized agent of the voting trustees and also countersigned and registered by the Rochester Trust and Safe Deposit Company of Rochester, New York, as Registrar.</p> <p>“In witness whereof, said voting trustees have caused this certificate to be signed by their duly authorized agent this 15th day of September, 1910.</p> <p>“HENRY W. BREWSTER ' CHARLES E. OR VIS</p> <p>“ANDREW H. BROWN</p> <p>“ By their Agent</p> <p>“Merton E. Lewis.</p> <p>“Countersigned and registered this 20th day of Sept., 1910. One hundred shares, Rochester Trust & Safe Deposit Co., Registrar.</p> <p>“R. Watson, Secretary.”</p> <p>Adams sold his stock to George K. M. Clarke, and the defendant Oberg purchased the same from Clarke. Clarke delivered the certificate to Oberg, with the assignment and power to transfer the same indorsed thereon, executed by Adams, leaving the name of the assignee blank, and which was in the following form:</p> <p>“ Indorsement</p> <p>“For value received hereby sell, assign and transfer the within voting trust certificate unto......and do hereby irrevocably constitute and appoint.....to transfer this certificate</p> <p>on the books of the voting trustees by whom this certificate was originally issued, with full power of substitution in the premises.</p> <p>“ Dated Oct. 11, 1910.</p> <p>“R. A. ADAMS.</p> <p>- “ In the presence of Geo. K. M. Clarice.”</p> <p>Within a few day thereafter the defendant Oberg delivered the certificate to Clarke, requesting him to have the certificate transferred to Oberg upon the books of the. voting trustees. But Clarke, instead of doing as directed, pledged the same for his own benefit to the plaintiff bank, the bank loaning to him the sum of §2,000 upon his promissory note, receiving the certificate as a pledge to secure said loan.</p> <p>Frederick W. Zoller, the secretary of the Union Trust Company of Rochester, the plaintiff, testified that Clarke came to the bank and wanted a loan of $2,000 on this stock, saying that the stock was sold to a Mr. Lyon for $2,'500; that Lyon was out of town and that when he returned he would get the $2,500 and pay the loan. Zoller finally made the loan, relying upon the stock as security, Clarke delivering the certificate with the blank assignment and power to transfer indorsed thereon, in the same condition as received by him. Zoller testified that at the time he made the loan he had no notice of Oberg’s claim to the stock; that he supposed Clarke owned the stock; that Clarke told him he had made a sale of the stock and would get his money in two weeks. Zoller examined the certificate and noticed that it was originally issued to Adams and that it was indorsed in blank. In response to the inquiry as to whether he thought that Adams had transferred the stock to some other person, he replied that the stock is negotiable like thousands of transactions; that he did not know anything about what Mr. Adams did and he made no inquiries; that he made no inquiry of Lyon concerning the certificate and that Clarke’s reputation as a business man was all right at that time, so far as he knew.</p> <p>The object of the action is to enforce the lien upon the stock so pledged. The trial court found that the delivery of the certificate by Oberg to Clarke was not negligent under the circumstances and that he used requisite care and caution in the transaction for the protection of himself and others; that the circumstances surrounding the transaction with the plaintiff required it to make inquiry concerning the ownership of the certificate which the plaintiff neglected to do, and was negligent for that reason; that Clarke feloniously appropriated the certificate to his own use; that Oberg was the lawful owner thereof, and that the retention by the plaintiff of the same was unlawful and directed a dismissal of the plaintiff’s complaint, with costs.</p>

Appeal by the defendant, the Buffalo General Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of June, 1912, upon the verdict of a jury for $5,000, 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 made upon the minutes.

Appeal by the defendant, Katherine Fitzgerald, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 30th day of May, 1912, upon the verdict of a jury, and also from an order bearing date the 30th day of May, 1912, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Supreme Ruling of the Fraternal Mystic Circle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 23d of May,-1912, upon the verdict of a jury, and also from an order denying defendant’s motion for a new trial entered in said clerk’s office on the 21st day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the Town of Ridgeway, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Orleans on the 5th day of July, 1912, confirming the report of commissioners appointed to appraise the damages alleged to have been sustained by the petitioner, William J. Ives, by reason of grading and macadamizing by the authorities of said town of a public highway of said town to which lands owned by said petitioner are adjacent, with notice of an intention to bring up for review an order of said court in said proceeding entered in said clerk’s office oh the 19th day of October, 1911, appointing said commissioners, and also an order entered on the 26th day of January, 1912, denying the motion made on behalf of said town to resettle the order appointing said commissioners.</p>

Appeal by the plaintiffs, John Ford and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 19th day of September, 1910, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the defendant, The People of the State of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Brie on the 29th day of Hovember, 1911, upon the report of a referee.

Appeal by the defendant, Peter Dinehart, from an'order of the County Court of the county of Onondaga, entered in the office of the clerk of said county on the 9th day of December, 1912, affirming a judgment of a Court of Special Sessions held by a justice of the peace of the town of Salina in said county, convicting the defendant of the crime of disorderly conduct, and adjudging that the defendant be imprisoned in the Onondaga County Penitentiary for the period of six months.

Appeal by the plaintiff, MacArthur Brothers Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 15th day of May, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term.

<p>Bills and notes — payment of savings bank deposit on forged check — when bank liable to depositor.</p> <p>Plaintiff opened a savings bank account with the defendant under the name “Antonina Hankowska,” withdrawals to be made on a special form of check which required the signature of the depositor to be acknowledged before a notary public. The defendant paid a portion of the deposit on a forged check drawn in the name of “Antuia Hankowska,” the drawer making her mark and the signature being acknowledged and certified by a notary public. The person drawing the money had stolen the pass book and presented it with the check. The case has been tried three times, resulting in a verdict for the plaintiff in each instance.</p> <p>Held, that a judgment for the plaintiff should be affirmed.</p> <p>Lambert and Robson, JJ., dissented, with opinion.</p>

<p>Railroad — negligence—injury to forest preserve by fire — defective locomotives ■—failure of railroad to remove inflammable material from right of way — evidence — condition of defendant’s locomotive prior to fire — damages — value of trees killed by fire.</p> <p>Action by the People to recover damages caused by the alleged negligence of the defendant railroad in setting fire to a portion of the forest preserve owned by the State and abutting upon the defendant’s right of way. The evidence showed conclusively that defendant upon the day the fire started ran over its tracks five or more locomotives having grossly defective fireboxes and ashpans, which would allow live coals to be thrown therefrom.</p> <p>Held,, that the evidence was sufficient to justify the jury in finding that the fire was started because of defective locomotives.</p> <p>The defendant was negligent in allowing cut grass, bushes and timber to remain upon and adjacent to its right of way during the entire summer, and the jury were justified in finding that the spread of the fire to the State lands was caused by such negligence.</p> <p>Under the circumstances aforesaid the defendant would be liable independent of section 72 of the Forest, Fish and Game Law, requiring railroads passing through forest lands to remove inflammable materials from them right of way.</p> <p>Although the plaintiff’s bill of particulars stated that the forest fire started on a certain day it was proper to admit evidence of the numbers of the locomotives and the number of trains which passed over the tracks prior to that day, in order to establish the defendant’s negligence, there being evidence that an examination of the locomotives made a few days prior to the fire showed that the fireboxes and ashpans were out of repair and did not comply with the law and that they actually scattered live coals.</p> <p>In such action the defendant is not entitled to have deducted from the damage to State lands the value of the timber which was killed by the fire, for the State Constitution prohibits the marketing of the same. Robson and Foote, JJ., dissented in part.</p>

Appeal by the defendant, Santee W. Moris, from a judgment of the County Court of Chautauqua county, rendered against him on the 13th day of November, 1912, convicting him of the crime of perjury.

Appeal by the defendant, R. H. McCarter Potter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 24th day of May, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of August, 1912, denying the defendant’s motion for a new trial made upon the minutes.

The proceeding was commenced on the 15th day of March, 1912, by the petition of Stephen King upon which an order was granted requiring the board of elections of Oswego county to show cause why an injunction should not be granted forbidding the board to place upon the official primary election ballot the names of O. M. Austin, Thomas Deitz and Edwin L. Sheetz as candidates for Republican party positions in the fifth ward of the city of Oswego, N. Y., to he voted upon at the…

Appeal by the plaintiff, Equitable Trust Company of New York, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 9th day of January, 1913, dismissing the complaint upon the decision of the court rendered after a trial at the Monroe Special Term.

<p>Mortgage — removal of timber from mortgaged premises pending foreclosure —undertaking to prevent injunction — subsequent determination of equity in timber removed — estoppel — amendment of complaint — conditions.</p> <p>Where in a suit to foreclose a mortgage upon timber lands, defendants, to whom the mortgagors had sold the timber, in order to prevent an injunction restraining them pendente lite from removing timber which had been cut, gave an undertaking whereby they agreed to account to the plaintiff for any sum it might be adjudged that he was entitled to recover by reason of his equity in the timber and by reason of the undertaking were allowed to remove the same from the State, they are estopped from questioning the right of the plaintiff to have his equity in the timber determined after a sale of the mortgaged premises resulted in a deficiency.</p> <p>Under the circumstances the plaintiff should be allowed to amend his complaint so that his equity in the timber removed can be determined.</p> <p>Moreover, where the decree of foreclosure specifically reserved the question of the plaintiff’s equity in the timber for future determination in case the sale did not satisfy the mortgage and the defendants did not appeal from said decree, they are estopped from contesting the plaintiff’s right to have that issue determined.</p> <p>The defendants are not entitled to he relieved from liability on their undertaking or to have the judgment vacated as a condition for an amendment to the complaint raising the question of the plaintiff’s equity in the timber removed.</p>

Cross-appeals by the plaintiff, Della M. Buckley, and the defendant, William H. Stansfield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 8th day of June, 1912, upon the report of a referee. Also an appeal by the defendant, William BE.

Appeal by the plaintiff, Mary Iíahler, from an order of the Supreme Court, made at the Oneida Trial Term and entered in the office of the clerk of the county of Oneida on the 23d day of January, 1912, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Buffalo Steam Boiler 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 4th day of December, 1911, upon the decision of the court rendered after a trial at the Steuben Special Term.

<p>Certiorari issued out of the Supreme Court and attested on the 8th day of July, 1912, directed to Archibald M. Laid-law and others, constituting the town board, etc., commanding them to certify and return to the office of the clerk of the county of Cattaraugus all and singular their proceedings had in rejecting a certain claim filed by the relator.</p>

<p>Appeal by the defendant, the Buffalo Steam Roller Company, from an order of the Supreme Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Steuben on the 29th day of June, 1912, and also from an order entered in said clerk’s office on the 1st day of August, 1912.</p>

Appeal by the defendant, Willis Luckman, from a judgment of the Supreme Court, in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 28th day of October, 1909, upon the decision of the court rendered after a trial at the Erie Trial Term, a jury having been waived.

Separate appeals by the defendants, Edward Gabel and Helen L. Gabel, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 8th day of February, 1912, upon the verdict of a jury adjudging the plaintiff to be the owner in fee of an undivided four-fifths of the premises described in the complaint and the defendant Helen L. Gabel of an undivided one-fifth thereof.

<p>Railroads — penalty for exacting fare twice in violation of section 69 of the Railroad Law — evidence.</p> <p>In an action to recover a penalty under section 59 of the Railroad Law, for the acts of the agents of a railroad company in requiring the plaintiff to pay the lawful rate of fare twice over, the plaintiff is bound to show by a preponderance of evidence that the acts of defendant’s agents were not by reason of the “inadvertence or mistake” of those'agents, “not amounting to gross negligence.”</p> <p>Hence, where in such action it appears that the plaintiff applied to a ticket agent of the defendant shortly before train time for a ticket for himself and transportation in the baggage car for his dog; that he was charged both for his ticket and for the transportation of the dog, but that the agent handed him only the check for the dog, and that in reply to his question, “Is that ticket going to carry me and the dog?” the agent said, “Yes; ” that there was no evidence that the plaintiff in asking such question exhibited his ticket to the agent; that the plaintiff having no passenger ticket, the conductor required him to pay his fare, and that the agent from whom the plaintiff purchased his tickets, upon discovering that he had cash to the amount of plaintiff’s passenger ticket more than the- number of tickets sold called for, the defendant caused such amount to be tendered to the plaintiff on the following day, but he refused to accept the same, a verdict in favor of the plaintiff is against the weight of the evidence.</p> <p>Kruse and Robsor, JJ., dissented.</p>

<p>Practice — dismissal for failure to prosecute—unreasonable delay — ' inadequate excuse.</p> <p>Where a plaintiff has made no effort whatever to bring his cause to trial for more than four years, and younger issues have been tried in theii regular order, the delay is unreasonable, and an order permitting the plaintiff to procoed with the case on a- before a certain date should be reversed and a motion to dismiss the complaint absolutely granted.</p> <p>An affidavit by the plaintiff’s attorney to the effect that the plaintiff had suffered great financial reverses and had not been able to take sufficient time from his business to try the case is no excuse for the delay. McLennan, P. J., dissented, with opinion.</p>

Appeal by the Grade Crossing Commissioners of the City of Buffalo and others, from a report of commissioners of appraisal in this proceeding, filed in the office of the clerk of the county of Erie on the 17th day of July, 1912, and also from a final order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of August, 1912, confirming said report.

Appeal by the plaintiff, Joseph M. Smith, from an order of' the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Orleans on the 24th day of December, 1912, denying the plaintiff’s motion for judgment on the pleadings.

Appeal by the plaintiff, William. G-. Ring, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 29th day of April, 1912, upon the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 25th day of April, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Practice — appeal — demurrer to indictment not alleging facts constituting crime.</p> <p>A defendant cannot appeal directly from an intermediate order denying his motion to dismiss an indictment upon the ground that it does not state facts sufficient to constitute a crime and is insufficient in law. Such order can he reviewed only on an appeal from a judgment of conviction.</p> <p>It seems, that an objection to an indictment upon the ground that it does not state facts sufficient to constitute a crime cannot be made by motion, but only by a written demurrer.</p> <p>P seems, that a defendant who has plead not guilty cannot demur to an indictment while his plea stands.</p>

<p>Appeal 'by the defendant, Lester J. Cutting, from a final order of the County Court of Delaware county, entered in the office of the clerk of said county on the 5th day of March, 1912, directing the removal of defendant as tenant in summary proceedings.</p>

Appeal by the defendants, Ida Akin Davitt and another, as executors, etc., from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 12th day of November, 1912, denying the defendants’ motion for a bill of particulars.

<p>Master and servant — negligence — drowning of employee while being transported on water-logged scow—negligence of superintendent in directing scow to be overloaded—negligence in pushing scow from bank — contributory negligence—Employers’ Liability Act.</p> <p>A master having assumed the duty of transporting laborers employed by it to a dredge used in the construction of the barge canal by means of boats and scows is bound to use reasonable care in so doing and must employ reasonably safe means of transportation.</p> <p>It seems, that the master having furnished a scow for such transportation which was not defective except that it leaked and had to be pumped out at intervals, the failure of an employee to pump out the scow before using it to transport laborers whereby the scow careened when pushed into the stream so that one of the laborers was drowned was the negligence of a fellow-servant in a detail of the work. The master is not liable for such negligence, either under the common law or the Employers’ Liability Act.</p> <p>But in an action under the Employers’ Liability Act to recover for a death so caused, the master is liable for the negligence of his chief engineer, having powers of superintendence, in ordering such water-logged scow to be overloaded and for his negligence in pushing it with such force as to cause the forward end to dip under water so that the passengers shifted their position to the rear end causing it to settle so that they were precipitated into the water.</p> <p>Under the circumstances the jury were authorized in finding the decedent, one of the passengers, free from contributory negligence.</p> <p>Since the amendment to the Labor Law made by chapter 352 of the Laws of 1910, a master is liable for an injury to a servant caused by the negligence of a superintendent or any person intrusted with authority, the servant himself being free from contributory negligence.</p> <p>As the master assumed to transport its employees to the dredge the intestate was in its service at the time he was drowned and was entitled to the protection of the Employers’ Liability Act.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 25th day of May, 1912, directed to William Sohmer, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in fixing the amount of the tax to be paid by the relator, pursuant to the provisions of section 182 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), for the privilege of exercising its corporate franchise during the year ending October 31, 1912.</p>

<p>Appeal by the defendants, S. J. Champlin and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 6th day of November, 1911, upon the réport of a referee.</p> <p>This case was transferred from the Fourth Department to the Third Department of the Appellate Division. (See 164 App. Div. 917.)</p>

<p>Justice’s Court—appeal from judgment by default—failure to excuse default—notice of appeal.</p> <p>The judgment of a Justice’s Court entered on the default of the defendant in appearing should not be set aside where the only excuse for the default is that the defendant was too busy to ascertain the date of the return day stated in the summons, and there is no proposed answer, but merely an affidavit that the goods sold to the plaintiff, and of which the defendant accepted the return, were not warranted by him as alleged by the plaintiff.</p> <p>The fact that the defendant in his notice of appeal did not erase from the blank used a demand for a new trial in the appellate court is immaterial, and the court may strike out the demand as surplusage.</p> <p>Kellogg, J., dissented.</p>

Appeal by the plaintiff, William Fitzgerald, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 11th day of August, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Schenectady Trial Term, and also from an order entered in said clerk’s office on the Itth day of January, 1912, denying the plaintiff’s motion for a new trial…

Appeal by the relator, Charles F. Murphy, 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 23d day of March, 1912, sustaining a demurrer to an an alternative writ of mandamus and quashing said writ as a matter of law.

<p>Master and servant — negligence —injury to employee by falling down unguarded elevator shaft — evidence — erroneous nonsuit.</p> <p>Action brought both under the common law and under the Employers’ Liability Act, to recover for injuries sustained by the plaintiff while working for the defendant in its bakery by falling down an unguarded elevator shaft. Evidence examined, and held, that the questions of the defendant’s negligence and of plaintiff’s freedom from contributory negligence were for the jury, and that a-nonsuit at the close of plaintiff’s evidence should not have been granted.</p>

Appeal by the defendant, Charles W. Powers, as commissioner of highways, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 18th day of November, 1913, upon the decision of the court, rendered after- a trial at the St. Lawrence Special Term, overruling a demurrer to the complaint.

Appeal by Dwight O. Whedon and others, assessors, and by Victor S. Kogan, village clerk, 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 Sullivan on the 16th day of September, 1912, striking from the assessment roll of said village the assessment of relator on the ground that it is illegal.

Appeal by the plaintiff, the Mills Power Company, 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 27th day of January, 1912, upon the decision of the court, rendered after a trial before the court without a jury at the Fulton Trial Term, dismissing the complaint upon the merits.

<p> Lien—pasturage of cow. </p>

Appeal toy the defendant from a judgment of conviction rendered against him in the County Court of Oneida county, and from the order denying the motion for a new trial, entered in the Oneida county clerk’s office on the 5th day of July, 1912. Judgment of conviction and order affirmed. All concurred, except Kruse, J., who dissented in a memorandum.

<p>Motion for a reargument. (See 153 App. Div. 933.)</p>

<p>Deposition — examination of party before trial — fraudulent transfer.</p>

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

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 30th day of April, 1912, upon the verdict of a jury and from an order entered on the same day denying a motion for a new trial.</p>

Appeals from orders of the Appellate Term, entered in the New York county clerk’s office on the 21st day of June, 1912, reversing judgments of the Municipal Court in actions on promissory notes.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 21st day of January, 1913, as resettled, granting a motion for an injunction during the pendency of the action; also an appeal from an order entered on the 10th day of December, 1912, denying a motion to strike out certain papers from the motion papers served upon the defendant for a temporary injunction.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 14th day of November, 1912, granting the defendant’s 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 24th day of June, 1912, on the verdict of a jury and from an order entered on the 21st day of June, 1912, denying a motion for anew trial.</p>

<p>Appeal from an order of the Supreme Court, bearing date the 24th day of December, 1912, and entered in the New York county clerk’s office, punishing the appellant for contempt of court.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 28th day of January, 1913, continuing an injunction pendente lite.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 27th day of June, 1912, upon a verdict, and from an order, entered on the 11th day of July, 1912, denying a motion for a new trial.</p>

<p>Attorney at law — reinstatement.</p>

<p>Application by the New York County Lawyers’ Association to discipline the respondent, an attorney and counselor at law for misconduct.</p>

<p>Pleading — conversion — fraud.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 5th day of December, 1912, vacating an order for the examination of two of the defendants before trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 30th day of December, 1912, appointing a receiver of rents and profits in an action to foreclose a mortgage.</p>

<p>Deposition— extent of interrogatories.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 14tli day of March, 1913, in favor of the plaintiff, and from an order entered in said clerk’s office on the same day denying a motion for a new trial.

<p>Appeal by the plaintiff from so much of a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 18th day of May, 1913, as dismisses her complaint.</p>

Appeal by the plaintiffs and by the defendants, Robert C. Nichols and others, from part of an interlocutory judgment of the Supreme Court, made at Special Term, and entered in the clerk’s office of Queens county on the 17th day of August, 1912.

Appeal by The City of New York from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 18th day of July, 1913, confirming the report of commissioners in a condemnation proceeding, and directing the payment to claimants therein mentioned.

Appeal by the defendant from an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 1st day of February, 1911, affirming a judgment of conviction for violation of section 287 of the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), as added by chapter 374 of the Laws of 1910, after a trial in the Mount Vernon Court of Special Sessions.

<p>Reargument of an appeal by the plaintiffs from a judgment of the Special Term, entered in the office of the clerk of the county of Richmond on the 6tli day of August, 1912, dismissing then* complaint. (163 App. Div. 425.)</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Nassau on the 18th day of January, 1912, in favor of the plaintiff, and from an order denying its motion for a new trial on the minutes.

<p>Surrogate —jurisdiction — relieving party from purchase.</p>

Appeal by the defendant from a judgment of the City Court of New Rochelle in favor of the plaintiff, rendered on the 39th day of February, 1913, and from an order .made on the same day, denying his motion for a new trial.

<p> Evidence—■ survivorship—proof of existence of life in ingured person. </p>

<p>Appeal from, order of the Supreme Court, entered in the New York county clerk’s office on the 8th day of March, 1912, directing the issuance of a peremptory writ of mandamus reinstating the relator in the position of superintendent of highways.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office, dismissing the complaint at the close of the plaintiff’s case.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York' county clerk’s office on the. 10th day of January, 1913, modifying an order granting a motion for mandamus.</p>

<p>Appeal from part of an order of the Supreme Court, entered in the New York county clerk’s office on the 31st day of January, 1918, granting plaintiff an extension of time to serve a complaint, and from an order entered on the 10th day of February, 1918, denying plaintiff’s motion to resettle the first order.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the Gth day of March, 1918, granting leave to defendant to serve an amended answer.</p>

<p>Application to resettle an order.</p>

Cross-appeals from an order of the Supreme Court, entered in the New York county clerk’s office on the 13th day of-December, 1912,. awarding custody of children.

<p>Appeal from an order of the Supreme Court, entered on the 17th day of February, 1913, granting the defendants leave to amend answers.</p>

<p>Eminent domain — review of award.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Oneida county clerk’s office on the 10th day of May, 1912.</p>