Volume 156 — New York Appellate Division Reports

Appeal by the plaintiff, James W. Payne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 12th day of December, 1912, upon the dismissal of the complaint hy direction of the court at the close of plaintiff’s case on a trial at the Broome Trial Term.

Appeal by the plaintiff, Mary J. White, as administratrix, etc., from a judgment of the Court of Claims of the State of New York in favor of the defendant, entered in the office of the clerk of said court on the 29th day of July, 1911, dismissing the plaintiff’s claim.

<p>Vendor and purchaser— sheriff—sale on execution—right of purchaser to credit lien — cash sale — mistake of law.</p> <p>Where upon a sheriff’s sale on execution of a quantity of lumber in the possession of .a common carrier, which asserted a carrier’s lien thereon, the sale was- expressly represented to be of whatever right, title or interest the judgment debtor had in the lumber, a sale to a representative of the carrier for a sum sufficient to protect its lien should not be vacated upon the ground. that the sheriff would not credit the amount of the lien upon the bid.</p> <p>The mistake of the purchaser was unilateral and one of law, and unavailable in derogation bf the contract of purchase.</p> <p>A sheriff conducting;a sale on execution is bound to sell for cash.</p>

Appeal by the defendant, Maud Malone, from a judgment of the Court of Special Sessions of the city of New York, rendered against her on the 9th day of January, 1913, convicting her of the crime of unlawfully disturbing a meeting.

Appeal by the plaintiff, Rosa Gunderson, 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 Kings on the 21st day of February, 1911, .upon the dismissal of the'complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 21st day of April, 1911, denying the .plaintiff’s…

Appeal by the defendant, Arline A. Wilson, from part of a judgment of the : Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of January, 1913, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Practice x—trial — witnesses — examination hy court to exclusion of counsel.</p> <p>Where a trial judge refuses to allow the plaintiff’s counsel to examine his own witnesses and takes upon himself the conduct of such examination, a judgment for the defendant may be reversed upon the ground that the plaintiff has been deprived of his day in court.</p>

Appeal by the defendant, the Brooklyn Heights Railroad Company, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of October, 1912, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 13th day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Florence J. Maxwell, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d day of March, 1912, upon the decision of the court rendered after a trial before the court without a jury.</p>

<p>Appeal by the defendant, George Sinski, as executor, etc., from a judgment of the County Court of Richmond county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of October, 1912, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the defendant, The Webber Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Kings on the 27th day of December, 1911, upon the verdict of a jury for $10,500, and also from two orders entered in said clerk’s office on the 28th and 29th days of December, 1911, respectively, denying the defendant’s motions for a new trial made upon the minutes.

Appeal by the plaintiff, Ellen Mary Quinn, 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 16th day of June, 1911, upon the special verdict of a jury dismissing the complaint.

Appeal' by the ¡defendants, Joseph L. Greason and. others, from a judgment of the Supreme Court in favor of the plaintiff, entered in thei office of the clerk of the county of Queens on the 6th day of November, 1912, upon the verdict of á jury for $4,500, and also from an order entered in said clerk’s office on the 15th day <jf November, 1912, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, The United States Drainage and Irrigation Company, from so much of an order of the Supreme Court,' made at the Westchester Special' Term and entered in the office of the clerk of the county of Westchester on the 28th day of December, 1912, as allows the defendant to amend his answer upon the payment of ten dollars costs and disbursements.

Appeal by the defendant, the Bachmann-Bechtel Brewing Company, from a judgment of the County Court of Richmond county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d day of March,. 1912, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 27th day of March, 1912, denying the defendant’s motion for a new trial made Upon the minutes.

Appeal by the plaintiff, Daniel Capozzi, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day óf January, 1913.

Appeal by the plaintiff, Michael Lalla, from an order of the Supreme Court, made at the' Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of January, 1913, as resettled by an order entered in said clerk’s office on the 16th day of January, 1913.

<p>Appeal by the defendant, Edward Strumpf, from so much of an interlocutory judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 33d day of November, 1912, upon the decision of the. court, rendered after a trial at the Kings County Special Term, as directs that the demurrer interposed by the defendant Strumpf to the complaint be overruled as to one ground stated therein, with costs to the plaintiff, and also from so much of said judgment as directs that the said costs of the plaintiff offset the costs of the defendant Edward Strumpf upon sustaining the said demurrer upon another ground, with leave to plaintiff to serve an amended complaint upon the attorney for Edward Strumpf without payment of costs.</p>

<p>Re argument of an appeal by the defendant, Harold S. Sidway, from part of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of June, 1912, upon the decision of the court rendered after a trial at the Kings County Special Term. (See 154 App. Div. 957.)</p>

<p>Charges by the Association of the Bar of the City of New York against the respondent, an attorney, of professional misconduct.</p>

Charges 'presented by the Association of the Bar of the City .of New York of professional misconduct against the respondent, an attorney and counselor at law.

<p>Charges of professional misconduct preferred against the respondent, an attorney at law, by the Association of the Bar of the City of New York.</p>

Charges preferred by the Association of the Bar of the City of New York against the respondent, that the respondent had been guilty of fraud and deceit in the proceedings by which he obtained permission to practice as an attorney and counselor at law in this State.

Appeal by the: defendants, Theodoras Bailey and others, from a judgment of the Supreme Court in favor of. the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of New York on the 10th day of October, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiffs, Mary E. Dickerson and another, and the defendants, Agnes Marie Klauer and another, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Mew York on the 1st day of October, 1912, upon the decision of the court, rendered after a trial at the Mew York Special Term, sustaining a demurrer to the complaint and dismissing the same upon the merits.

Appeal by the defendant, the Van Oortlandt Realty Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of November, 1912, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, and also an order of said City Court denying the defendant’s motion for a new trial.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of October, 1912, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the 2d day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the; plaintiff, Donald Mitchell, 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 3d day of June, 1912, upon the decision of the Court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendant, Alfred E. Norton 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 16th day of April, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 18th day of April, 1912, denying the defendant’s motion for a'new trial made upon the minutes.</p>

<p>Appeal by the ¡ defendant, George J. Kenny, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of April,; 1912, upon the verdict of a jury for $6,000, • and also from an order entered in said clerk’s office on .the 23d day of April, '1912, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Joseph H. Hunt, 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 5 th day of July, 1912, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 2d day of July, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Insurance — casualty insurance — liability ■ under policy against a “ Pott’s fracture ’’ sustained, by passenger on public conveyance.</p> <p>Where, during the life of a policy of insurance issued by a casualty company against “a Pott’s fracture effected directly and independently of all other causes through external, violent and accidental means while riding as a passenger in or on a public conveyance provided by a common carrier for passenger service, including the platform, steps or running board thereof,” it appeared that the insured immediately prior to an accident in which she sustained “ a Pott’s fracture ” had been riding as a passenger in a public conveyance which had been stopped for the purpose of permitting her .to alight; that while she was in the act of alighting, having one foot upon' the step of the conveyance " and the other upon the: pavement of the street, the accident occurred; that it occurred before she had “ completely alighted from the conveyance ” and was not due to the negligence of the common carrier, the holder of such policy is entitled to recover thereunder. .</p>

Appeal by the defendant, The First Methodist Episcopal Society of Homer Village, N. Y.,. front two orders of the Supreme Court, made at the New York Special Term and entered in the. office of the clerk of the county of New York on the 15th day of November, 1912, one changing the place of trial from New York county to Queens county, and the other denying a motion to change the place of trial from New York county to Cortland county.

Appeal by the; defendant, the Wallace Wall Paper Com, party, 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 December, 1912, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 9th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Frederick W. Whitridge, as receiver of the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in' the office of the clerk of the county of New York on the 21st day of June, 1912, upon the verdict of a jury for $20,000 rendered after á trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 24th day of June, 1912, denying the defendant’s motion for a new trial made upon the minutes in an action to recover damages for the death of the plaintiff’s intestate.</p>

Appeal by the defendant, the Holland Holding 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 28th day of October, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of October, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Bonds — debentures secured by trust mortgage construed — redemption of bonds before maturity at increased price — ascertainment of bonds to be redeemed by lottery — sinking fund.</p> <p>The debenture bonds of a corporation secured by a trust mortgage provided for the payment of $485 to the holders at maturity. There was a further agreement that a certain number of bonds should be redeemed each year before maturity, the particular bonds to be determined by an-annual drawing or lottery, such bonds to be redeemed at $533.50 in addition to accrued interest. The mortgagor further covenanted to pay a certain sum to the trustee to'the account of a so-called “ sinking fund ” and to pay a further amount each succeeding year to said fund, deducting, however, such amounts as might be necessary to pay the current interest upon outstanding bonds.</p> <p>Held, that the obligor only bound itself to pay the increased price of $533.50. upon those debentures which chanced to be drawn before maturity and that it was only bound to pay $485 with interest on the debentures which matured;</p> <p>That the so-called sinking fund was not such in fact, but was merely a deposit of money to pay interest and the increased principal of those bonds which were drawn before maturity.</p> <p>Scott, J., dissented, with opinion.</p>

Cross-appeals by the petitioner, Leopold Alfred Meyer, and by Edward Robitzek, from a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of July, 1912, in a proceeding to determine the custody of an infant.

<p>Mortgage — trust mortgage construed — provisions for reimbursement of mortgagor for sums expended in railroad equipment — sums paid to obtain an increase of capital stock, and in connection with issue of bond and mortgage and for taxes, discounts, etc.</p> <p>A trust mortgage executed by a railroad company upon substantially all its property then oymed and thereafter to' be acquired reserved a certain portion of the bonds to be delivered to the mortgagor by the trustee upon certificates issued by the former to reimburse it for the cost of constructing and equipping a certain branch line. In the list of properties conveyed the main line was stated to have been completely built, but there'was no such statement in regard to said branch line. One clause of the mortgage required proof that improvements had been made after the date of the mortgage in order to entitle the mortgagor to reimbursements from the reserve bonds, but there was no such provision in regard to the branch line aforesaid.</p> <p>Held, that the mortgagor on duly issuing certificates to the trustee was entitled to reimbursement from the reserve bonds for an indebtedness incurred in the construction of said branch line prior to the date of the mortgage, there being as to that particular branch line no limitation as to when the work was to be done in order to give the right to reimbursement.</p> <p>But the mortgagor is not entitled to reimbursement for fees paid to a foreign State in connection with an increase in its capital stock for such fees were not paid for construction or equipment.</p> <p>Nor is the mortgagor entitled to reimbursement from the reserve bonds for moneys. expended since the execution of the mortgage as a bonus to the State on an increase of its capital stock, or for the cost of engraving its bonds, or for issuing its mortgage, or the expense of selling certain bonds delivered to it under another clause of the mortgage, or for State taxes paid on its capital stock. Such expenditures were not made for construction or equipment for which alone it is entitled to reimbursement under the mortgage.</p> <p>Nor is the mortgagor entitled.to be reimbursed from the reserve bonds for payments made since the execution of the mortgage on an indebtedness due for the purchase of the stock of another corporation, which stock was covered by the mortgage and deposited with the trustee, there being no statement that there was a balance due thereon. A clause in the mortgage allowing reimbursement for the acquisition of capital stock of other corporations refers to stock acquired after the date of the mortgage.</p> <p>Nor is the mortgagor entitled to reimbursement for discounts paid by it since the execution of the mortgage in marketing bonds received under the terms of the mortgage, the proceeds of which were applied to the construction of the branch Une aforesaid.</p> <p>Scott, J., dissented in part, with opinion.</p>

Appeal by the defendant, John T. Glynn, 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 15 th day of February, 1913, denying the defendant’s motion to preclude the plaintiff from offering certain evidence and for judgment on the pleadings.

■ Cross-appeals by the plaintiff, Rose Schreiber, and the defendants, Louis- ¡Stern and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of June, 1912, upon the decision of the court, rendered after-a trial at the New York Special Term, in an action to foreclose- a mechanic’s lien.

Separate appeals by the defendants, Alexander S. Burns and Bernardo Semenza, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, directing the specific performance of a contract.

<p>Libel — evidence — conspiracy with which plaintiff is not connected— testimony that article referred to plaintiff— appeal.</p> <p>Where a defendant did not move for a nonsuit or the direction of a verdict, and the ease on appeal contains no order denying a motion for a new trial upon the minutes, the appellate court will review the exceptions only.</p> <p>In an action by an attorney at law for libels abusing him for attempting to obtain an amendment to the Copyright Law relating to musical compositions, the defendant is not entitled to show in justification or by ' way of mitigation Of damages that manufacturers of mechanical piano players had secret ¡ contracts with music publishers whereby if the amendment to the Copyright Law should be adopted they would obtain exclusive privileges,] there being nothing to connect the plaintiff with such alleged conspiracy.</p> <p>In such action it is error to permit the person who wrote the libelous articles to testify that he had the plaintiff in mind and intended to rfefer to him. But such error is harmless when the articles themselves in the light of surrounding, circumstances identify the plaintiff as the person referred to. ■</p>

Appeal by the defendant, Ada L. Simis, 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 Néw York on the 21st day of February, . 1913.

Appeal by the defendants, Charles Yung and another, as executors and trustees, 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 4th day of February, 1913, amending an order of reference entered in said clerk’s office on the 30th day of January, 1912, by striking therefrom a provision directing that the referee take and state the said defendants’ account as executors and…

Appeal by the plaintiff, Minnie C. Bunge, 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 8 th day of May, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

Cross-appeals by The Mercantile Trust Company, as executor, etc., and by . Adelena Muhlenbach Smith, legatee, and Charles Stuart von Lutnow Smith, legatee,, from parts of a decree of the Surrogate’s Court of the county of Mew York, entered in the office of the clerk df said court on the 17th day óf October, 1911, settling the account of The Mercantile Trust Company, as executor.

Appeal by the petitioner,' Hattie Amrhein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1913, denying a motion for the removal of the substituted trustee under the last will and testament of Franz Amrhein, deceased.

Certiorari issued out of the Supreme Court and attested on the 9th day of .HoVember, 1911, directed to Rhinelander Waldo, police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in imposing a fine upon the; relator.

<p>Limitation of action —■ suit to recover for negligence of bank in canceling stock upon forged power of attorney — Code of Civil Procedure, sections 382 and 410, construed — demand, when not necessary — when bank not in fiduciary relation toward its stockholders—fraud — concealment.</p> <p>In a suit by the plaintiff as administratrix of the alleged owner of certain shares of the capital stock of the defendant bank, to compel the defendant to deliver said stock or to pay the value thereof, and to account for the dividends earned since the 4th day of March, 1868, it was alleged that the defendant by negligence and upon a forged power of attorney on or about the 4th day of March, 1868, accepted the surrender of said stock and canceled the same. The answer, after putting in issue the material allegations of the complaint, alleged the ten, twenty and six-year Statutes of Limitations as separate defenses. The plaintiff in reply denied that the periods of limitation stated in the answer had elapsed, and also alleged three separate avoidances, first, that neither the plaintiff nor her intestate knew of the. existence of the cause of action prior to six years before the commencement thereof; second, that defendant fraudulently concealed the facts from the plaintiff’s intestate and from the plaintiff six years prior to the commencement of the action, and, third, that the defendant acted with respect to the said shares as trustee for and in a fiduciary capacity towards the plaintiff’s intestate. The defendant demurred to the alleged avoidances.</p> <p>Meld, that the defendant barde was not acting “in a fiduciary capacity ” within the meaning of subdivision 1 of section 410 of the Code of Civil Procedure, requiring a demand in certain cases before the commencement of an action;.</p> <p>That the right of action of plaintiff’s intestate was complete at the moment her shares were wrongfully transferred upon the faith of a forged power of attorney and no demand was necessary to perfect the cause of action;</p> <p>That the charge against the defendant of a breach of duty and a failure to exercise due care is not such fraud as is contemplated by subdivision 6 of section 383 of the Code of Civil Procedure, which specifies cases to which the six-year Statute of Limitations applies;</p> <p>That the general allegation of concealment contained in the plaintiff’s reply does not import or charge the commission of such an affirmative act as to postpone the operation of- the Statute of Limitations.</p>

Arpe at, by the defendant, The Empire State Surety 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 14th day of May, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s' office on the 7th day of June, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the ¡defendants, Julius A. Bernstein and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24thday of February, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of February, 1912,. denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Wells Fargo Express 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 13th day of December, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, the David Stevenson Brewing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of July, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the defendants, Richard W. Jones, Jr., and others, 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 16th day of January, 1913, upon the decision of the court, rendered after a- trial at the New York Special Term, sustaining the plaintiff’s demurrers to certain defenses and counterclaims contained in the answers of the respondent.

Appeal by the defendant, Percy L. Davis, from a judgment of the Supreme Court, rendered against the defendant on the 6th day of January, 1913, convicting him of an attempt to commit the crime of extortion.

Appeal by the plaintiff, Sylvian F. Bonny, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 2d 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 Queens County Trial Term.

Appeal by the: defendant, John L. McCloskey, from parts of an interlocutory ¡judgment of the Supreme Court in favor of the plaintiff and ¡certain of the defendants, entered in the office of the clerk of the county of Richmond 0n the 24th day of July, 1912, confirming! the report of a referee.

Appeal by the Department of Water Supply, Gas and Electricity of the City of New York from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of February, 1913, granting a peremptory writ of mandamus.

Appeal by Lascelles 0. Maxwell and Thomas Y. Crafts, as executors, etc., and another, from an order of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 30th day of December, 1912, affirming an order entered on the 7th day of July, 1911, in so far as the same affirms the assessment of a transfer tax in this proceeding.

Appeal by the plaintiff, the Hamilton Trust Company, 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 6th day of September, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining- a demurrer to the amended complaint and dismissing the same, and also from an order entered in said clerk’s office on the 9th day of May, 1912,. denying the plaintiff’s…

<p>Municipal corporations — street opening proceeding—failure to obtain unanimous vote of common council as required by statute—when subsequent proceeding for sewers and grading valid.</p> <p>If the charter of a city authorizes the common council to lay out and open a street only “by a unanimous vote of all its members,” and such resolution is adopted by the unanimous vote of eight out of ten members, they being the only ones who attended the meeting, the city does not acquire title to the street, even though it has paid the damages awarded in condemnation proceedings.</p> <p>But subsequent independent proceedings conforming to the requirements of the charter which provided for the grading of said street and for the construction of sidewalks and sewers are valid, and a local assessment therefor may be levied against the property benefited.</p> <p>Where the validity of the sewer and' sidewalk assessments has been determined by the Court of Appeals, an abutting owner who bought subject to all taxes and assessments and to the street opening proceeding, is entitled to recover moneys deposited by a former owner to secure payment of the assessments if they are found to be valid liens.</p>

<p>Bills and notes—Negotiable Instruments Law, section 380—liability of indorser of note payable to maker.</p> <p>A person who places his name on the back of a promissory note made by the maker, to the order of himself, before indorsement by the maker, cannot escape liability as an indorser under section 320 of the Negotiable Instruments Law.</p>

<p>Master and servant — negligence — injury to waitress in private residence by dumbwaiter — evidence.</p> <p>In an action by a waitress, employed in a private residence, against an ice company to recover for personal injuries, it appeared that as the plaintiff plaped her hand in a dumbwaiter for the purpose of sending a plate to the floor below, it was suddenly drawn down by a driver in the defendant’s employ in order that he might place ice thereon. Evidence examined, and held, insufficient to show that the act of the driver was in the discharge of any duty he owed defendant or any negligence on the driver’s part, and that a judgment in favor of the plaintiff should be reversed.</p> <p>Rich and Stapleton, JJ., dissented.</p>

Appeal by the defendant, John H. Hanan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of April, 1912, upon the decision of the court, rendered after a trial at the Kings County Trial Term, a jury having been waived.

<p>Partition — complaint — demurrer.</p> <p>A complaint in an action for partition which sets forth the chain of title from a person named and alleges that he was seized and possessed of the premises upon a certain date, and that he died twenty-one years later, but fails to allege that he was seized or possessed of the premises at any time subsequent to the date named, or at the time of his death, or that any of the alleged heirs at law or devisees of the person named have since been seized or possessed of the premises, and also fails to state any reason why certain defendants are made parties, is insufficient, and a demurrer thereto should be sustained.</p>

Appeal by the defendant, the American Foil Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of November, 1912, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 31st day of October, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Henry W. Schmeelk, Jr., 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 December, 1912, upon the verdict of a jury for $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>Trust — action to establish trust — letter of testator — evidence —failure to establish acceptance of trust by trustee.</p> <p>The owner of all the stock of a manufacturing company, except certain shares which upon its incorporation- he had given- to his employees, died, leaving a wife and minor son. By the terms of his will he gave the secretary of his company, who was also his business confidant, all of his property absolutely. The testator, on the same day he executed his will, wrote a letter addressed to the secretary, in which he stated that he had given all his property to him to avoid legal complications, and directed him to sell certain stock of the company and hold the proceeds in trust for his son. He also directed him in said letter, in case the business warranted it, to make certain quarterly payments to certain other persons named.</p> <p>In an action by the persons mentioned as beneficiaries in said letter to establish a trust for their benefit, evidence examined, and held, insufficient to establish the acceptance of the trust by the testator’s secretary, and that a judgment for the plaintiffs should be reversed.</p> <p>Hirsohberg and Rich, JJ., dissented.</p>

Appeal by the petitioner, the Mechanics’ Bank, Brooklyn, 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 January, 1913, denying the petitioner’s motion for a peremptory writ of mandamus.

Appeal by the defendant, the New York House Wrecking 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 15th day .of April, 1912, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Contract — contract for filling in lands with, material dredged from waterways — breach — enforcement of lien—quantum meruit for breach of contract — umpire disqualified by subsequent employment by parties — counterclaim — evidence.</p> <p>A contractor engaged in dredging entered into a written contract with the owner of adjacent lands whereby he agreed to excavate and deposit in a'fill a certain number of cubic yards of the dredged material on the property of the owner. It was provided that the elevation to which the fill was to be brought should be fixed by grade stakes, and that levees for impounding the material on both sides of the canal to be excavated should be provided by the owner; that if the owner was desirous the contractor would build such levees for him at cost, plus ten per cent; that the owner would pay the contractor,' for all material excavated and deposited, a certain sum per eubic'yard measured in the fill. It was also understood and agreed that each of the parties would appoint an engineer to determine the quantity of fill placed, and that all matters of difference should be referred to another engineer as umpire whose decision should be final and binding upon the parties. During the progress of the work some of the levees built along the canal slid out so as to let parts of the fill escape. After the owner had failed to pay certain amounts due under the contract, 'the contractor notified him that he regarded the contract as broken and terminated, and thereupon filed a ' notice of lien for the unpaid amounts for excavation and filling of the lands, and for an alleged amount due for the building and repairing of levees.</p> <p>In a suit to foreclose said lien the defendant claimed that the original cost of building the levees was excessive and also set up a counterclaim that one of the spillways was negligently placed so as to allow the sediment to flow back into the creek. Evidence examined, and held, that as the engineer, designated as" an umpire, was subsequently employed by the defendant, he was thereby disqualified and a decision by him was not a condition precedent to suit; • ' _</p> <p>That, the defendant having defaulted in making payments, the plaintiff could elect to treat it as a breach of the contract, and sue upon quantum meruit for the full value of the work performed;</p> <p>That the monthly certificates Of defendant’s engineers as to the quantity of work performed, having been acted upon by the defendant and payments made thereon, although not finally determining the rights of the parties under the contract, were competent evidence, as they were not shown to have been obtained by fraud, accident or mistake;</p> <p>That an additional claim by plaintiff for material lost by subsidence should not be allowed;</p> <p>That judgment for the plaintiff should be affirmed, and defendant’s counterclaim dismissed.</p>

Appeal by D. Retasen Robinson and Edward E. Perkins, as executors, etc., of Pliebe H. Robinson, deceased, from a decree of the Surrogate’s Court of the' county of Dutchess, entered in said Surrogate’s Court on the 24th day of September, 1912. ■

Appeal by the defendant, The.Livingston Amusement Company, from a judgment of the Supreme Court in favor of-the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day óf October, 191-2, upon the verdict of a jury for $500, and also from an order entered in said Clerk’s office on the 9th day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes..

<p>Master and servant — negligence injury by hoisting apparatus — negligence of fellow-servant—failure of master to notify servant of danger — when knowledge of superintendent knowledge of master.</p> <p>It seems, that where the plaintiff’s fellow-servant continued to operate a hoisting apparatus without any authority and without the knowledge of the master at a time when one of the clips holding the hoisting cable had become displaced with the result that the cable slipped, allowing the bucket to fall and injure the plaintiff, the master is not liable.</p> <p>But where the plaintiffs fellow-servant notified the masters foreman of ' the defect over forty minutes before the accident and the master, although it notified its inspectors, did' not warn the plaintiff but allowed him to continue to work in ignorance of the danger, the jury may find the master liable in failing to give notice and that the knowledge of the foreman was chargeable to the master.</p>

<p>Appeal by the plaintiff, Anton Follert, 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 Kings on the 1st day of February, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.</p>

<p>Appeals by the plaintiff, Mary S. Sidway, and by Frank S. Sidway from parts of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of March, 1913, as resettled and amended by an order entered in said clerk’s office on the 15th day of March, 1913, fining Frank S. Sidway the sum of $900.</p>

Appeal by the plaintiff, Gertrude L. Shaw, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of March, 1913. ■

<p>Appeal "by the plaintiff, Sarah E. Updike, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of. the county of Westchester on the 10th day of March, 1913, directing the plaintiff to serve a bill of particulars.</p>

Appeal by the plaintiff, John S. Pedersin, .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. Í3th day of March, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 12th day of April, 1912, dismissing the said complaint.

<p>Mandamus — practice —■ granting alternative writ does not determine merits—peremptory writ — ecclesiastical corporations — election of trustees — notices of election containing other matters:</p> <p>An alternative writ of mandamus is in the nature of an order to show cause. It affects no substantial right because it determines nothing for. ' or against either party except questions as to -the jurisdiction of the court. The writ and return thereto are in substance pleadings upon which issues of fact or law arise according as there may be demurrers or denials of the facts alleged. Upon these pleadings the issues are to be determined, and no substantial right is affected until such determination. Hence, an alternative writ of mandamus cannot be quashed or set aside upon motion for any matter involving the merits.</p> <p>Where affidavits presented in opposition to a motion for an alternative writ of mandamus are received without objection, and the questions involved are argued upon the merits before the Special Term and upon appeal to the Appellate Division, the proceeding may be treated as an application for a peremptory writ.</p> <p>An ecclesiastical corporation will not be compelled by mandamus to call a new meeting for the election of trustees on the sole ground that the notice of the prior meeting which was in accordance with the statute also contained a notice that a class meeting would’ be held on the same day in connection with the meeting for election of trustees, there being nothing to show that the rights of any persons entitled to attend were affected.</p> <p>Mandamus does not lie to review the validity of a corporate election.</p>

<p>Husband and wife —foreign divorce — conflict of laws — constitutional law — wben foreign decree conclusive here — collusion.</p> <p>A foreign decree of divorce is conclusive in this State under the full faith and credit clause of the Federal Constitution, where the plaintiff was domiciled in a foreign State and the defendant appeared in the action and the court of the foreign State had jurisdiction of the subject-matter and the parties.</p> <p>A judgment so obtained cannot be attacked collaterally in this State even though it was collusive.</p> <p>It is for the foreign court to hear and determine an application to revoke or annul such decree of divorce on the grounds of fraud or imposition.</p>

<p>Appeal by the defendant, Rosanna Archer, from a judgment of the' Supreme Court in favor of the defendant Carolina Wille, entered in the office of the clerk of the county of Queens on the 3d day of June, 1912, upon the decision of the court rendered after a trial at the Queens County Special Term.</p>

Appeal by the defendant, The Lake Shore and Michigan Southern 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 Chautauqua on the 29th day of- October, 1912, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the Utica State Hospital from a decree of the County Court of Oneida county, entered in the office of the clerk of said county on the 24th day of April, 1912, settling and allowing the account of Harry 0. Wesley, as committee of the person and property of Rosina 0. M. Taylor, an incompetent person.

<p>Insurance — life insurance—when contract for reinstatement becomes effective.</p> <p>Where in an action by the beneficiary of a life insurance policy it appears that the insured, after allowing the policy to lapse, made application for reinstatement, which, although 0. K.’d in all respects by the different departments of the company, was not approved by it, and no notice of reinstatement was given to the insured, the complaint should be dismissed upon the merits.</p> <p>An application for the reinstatement of a life insurance policy does not become effective until it is approved by the company and the insured notified.</p>

Appeal by the defendant, Anna B. Biers, from an interlocutory judgment of the Supreme .Court in favor of the plaintiff, entered in the office of the clerk of 'the county of Erie on the 2d day of January, 1912, upon the decision of the court rendered after a trial at the Erie Special Term in an action for divorce. The action was commenced on the 25th day of February, 1911,' to obtain an absolute divorce on the ground of adultery of the defendant.

Appeal by tie defendant, Domenico Galbo, from a judgment of the Supreme Court, rendered against the defendant on the 26th day of July, 1912, .convicting him of the crime of murder in, the second degree, and also from an order entered in the office of the clerk of the county1 of Monroe on the 31st day of July, 1912, denying the. defendant’s motion for a new trial.

Appeal by the defendant, the Leray Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson' on the 19th day of January, 1912, upon the verdict of a jury for $4, 600, and also from an order entered in said clerk’s office on the 18th day of January, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Railway Mail Association, 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 11th day of December, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Village of Solvay, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of said county on the 22d day of December, 1911, upon the Verdict of a jury for $200, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, William. Brennan, from a judgment of the Qounty Court of Erie county, entered in the office of the clerk of said county on the 2d day of December, 1912, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for. a new trial- made upon the minutes.

Appeal by the defendant, The Mutual Life Insurance 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 Monroe on the 14th day of August, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of August, 1912, denying the defendant’s motion for a new trial made upon the minutes.

1 > Appeal by the defendant, William G. Masterman, as cottnty treasurer, etc., 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 3d day of December, 1912.

. Appeal by the plaintiff, the Buffalo Steel 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 13th day of February, 1912, upon the decision of the court rendered after a trial at the Erie Trial Term, a jury having been waived dismissing the complaint upon the merits.

Hearing- pursuant to section 2138 of the Code of Civil Procedure upon the return to a writ of certiorari issued by order of the Supreme Court at a Special Term held in the city of Utica, N. Y., on the 8th day of November, 1912, upon the petition of the relator to review the decision of the respondent as superintendant of buildings in and for said city refusing to issue á permit to the relator to erect a building upon its lands in said, city located within the fire limits, so…

Appeal by the defendants, John Kozak and another,' from a judgment of the County Court of Oneida county, rendered against the defendants on the 16th day of December, 1912, . upon the verdict of a jury convicting them of selling intoxicating liquors on Sunday, in violation of section 30, subdivision A, of the Liquor Tax Law (Consol. Laws, chap. ■ 34 [Laws of 1909, chap. 39], as amd.. by Laws of 1910, chap. 494). The judgment was entered upon the verdict of a jury.

Cboss-appeals by the relator, The Buffalo and Lake Erie Traction Company, and the defendant, The State Board of Tax Commissioners, from parts, of an order of. the Supreme Court, made at the Erie Special Term- and entered in the office of the clerk of the county of Chautauqua on the 18th day of June, 1912,. reducing the assessment for taxation upon relator’s special franchise in the town of Westfield, Chautauqua county, from $130,000 to $117,344 as its aggregate actual value,…

<p>Attorney at law disbarred — unprofessional conduct.</p> <p>Attorney at law disbarred for inducing persons injured in a,n accident to retain him by means of false and misleading statements, for advising them to simulate injury more serious than they had sustained in order to enhance damages, for promising compensation to a third party for procuring such contracts of retainer, .and for contumacious conduct before the referee and the Appellate Division, the respondent having previously béen before the court upon charges of professional misconduct.</p> <p>While contracts making the fees of an attorney contingent upon success are legal when fairly made, all contracts to divide" such contingent fees with third parties not lawyers, or by which a person procuring such contract from another is to be compensated for services rendered, are prohibited by law and are made a misdemeanor by the statute.</p>

Appeal by the defendants, George D. Provost and another, from an interlocutory judgment of the Supreme Gonyt in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of July, 1912, upon the decision of the court rendered after a trial at the New York Special Term appointing a referee and granting other relief in an action for an accounting and to recover possession of certain securities.

Appeal by the defendant, Holbrook, Cabot & Rollins Corporation, from a judgment of the Supreme Court in favor of the plaintiffs, intered in the office of the clerk of the county of New York on the 5th day of December, 1912, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 7th day of January, 1913, denying the defendant’s motion for a new trial made upon the minutes. •

Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8th day of July, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of September, 1910, denying the plaintiff’s motion for a new trial made upon .the minutes. ,

Appeal by the plaintiff, William. 0. H. Wood, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 12th day of July, 1912, upon the decision of the court, rendered after a trial at the Mew York Trial Term, a jury having been waived, dismissing the complaint upon the merits.

<p>Appeal by the plaintiff, John F. Yawger, 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 10th day of July, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining a demurrer to the complaint.</p>

Appeal by the plaintiff, George W. Young, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1911, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial.

<p>Appeal by the plaintiff, Edward D. Taussig, 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 22d day of May, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint on the merits.</p>

<p>Common carrier—loss of goods . in transit — agreement invalidating insurance of shipper ■— carrier liable for loss.</p> <p>Where a bill of lading issued by a carrier provided that in ease of loss it should have full benefit of any insurance upon the goods shipped in so far as it did not avoid the policy of insurance and a policy taken - out by the shipper provided that it should be void to the extent of any . insurance by the carrier which should- cover the- property, and that the insurer should be discharged if the -insured stipulated with any carrier' that in ease of loss it should have the benefit of any insurance, the policy is unenforcible.</p> <p>Hence, the shipper can recover from the carrier for loss of the goods although the insurance company, while disclaiming any liability for the loss, advanced the value of the goods to the shipper under an agree ment that he should prosecute his- claim against the carrier and return the proceeds to the insurer.</p>

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

<p>Appeal by the plaintiff, the Bartholdi Realty Company, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 14th day of March, 1913, denying the plaintiff’s motion for an injunction pendente lite.</p>

<p>Decedent’s estate — proceeding to subject realty to payment of debts.— proceeds of partition deposited in court — payment to creditors — Code of Civil Procedure, section 1538, construed — sufficiency of moving papers.</p> <p>Section 1538 of the Code of Civil Procedure, relating to the distribution of the proceeds of lands sold on partition, relates exclusively to the payment to heirs, devisees or other parties to whom amounts are awarded by the judgment in partition and not to payment to creditors.</p> <p>The several methods by which payment may be made under said section stated, per Scott, J.</p> <p>Where lands in which a testator owned an undivided interest have been sold on partition and his share of the proceeds has, pursuant to section 1538 of the Code of Civil Procedure, been deposited with the chamberlain of the city of New York to await further orders of the court, a proceeding may be maintained by creditors in the Surrogate’s Court under title 5 of chapter 18 of the Code of Civil Procedure for the application of the decedent’s realty to the payment of debts.</p> <p>Where the amounts due the several creditors have been judicially, determined in such proceeding the moneys deposited with the city chamberlain as aforesaid, being proceeds- of the partition sale, may be ordered to be distributed to the creditors although three years have [not elapsed since the issue of letters testamentary.</p> <p>The provisions of section 2750 of the Code of Civil Procedure that the pro ■ eeeding for the sale of real property to pay the debts of the decedent may be instituted at any time within three years after the issue of letters merely creates a lien upon the real estate and prescribes the time within which proceedings must be brought to enforce it.</p> <p>In order that the surrogate in a proceeding to subject'realty to the pay ment of debts may address the citation to certain named creditors instead of to the general creditors of the decedent, it is necessary that the moving papers show, as required by section 3754 of the Code of Civil Procedure, that the representative has published a notice requiring creditors to present then claims and that the time for such presentation has elapsed. Hence, the Supreme Court cannot order the distribution of the proceeds of lands pursuant to a decree of the surrogate if such proof was not made in the proceeding.</p>

<p>Appeal by Sarah D. Munn from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of . February, 1913, resettling and amending nunc pro tunc an order entered on the 1st day of October, 1912, confirming a report of commissioners of estimate and a report of a commissioner of assessment in a street opening proceeding.</p>

<p>Municipal corporations — city of New York —. notice of intention to sue.</p> <p>A notice of claim against’the óity of- New York for damages to property filed pursuant to section 261 of the city charter, as amended, is not void merely because it does not in direct terms state that the claimant intends to sue, if the claim, otherwise in due -form, was filed with the comptroller who examined the claimant as to its merits. This, because under the circumstances the comptroller was sufficiently advised that an action was contemplated.</p> <p>It seems, that the service upon the corporation counsel of a notice of intention to sue is not equivalent to notice to the comptroller.</p>

<p>Sale —option of vendee to choose between brands of goods — refusal to exercise option — election by vendor — surety — guaranty covering performance of contract. ■</p> <p>Where a contract of sale absolutely required the buyer to purchase a certain number of feet of timber but gave him an option to choose between different brands, and he refuses to elect, the right of election passes to the seller and he, having been at all times ready to deliver,, is entitled to recover the purchase price.</p> <p>A person who has guaranteed the “ payment and conditions ” of such contract of sale is liable not only for the payment of goods actually delivered to the vendee but for the performance of the conditions of the contract, and hence is liable for the value of the lumber which the vendee wrongfully refused to accept.</p>

■ Appeal by the defendant, Miguel S. Arrue, from an order of the Supreme Court, made at the New York Special Term and. entered in the office of the clerk of the county of New York on the 20th day of March, 1913, as resettled, granting a motion to vacate an order for the examination of one of the plaintiffs .before trial.

<p>Municipal corporations — street grading proceeding, city of Mew York — notice of claim—mistake as to extent of property—award made on erroneous theory that street exists.</p> <p>Where, through mistake, a claim for damages caused by a change of street grade filed with the assessors of the city of New York did not include a large portion of the lands owned by the claimant, but on the hearing testimony was taken without objection as to the damages to all his property including the portion omitted from the claim, the defect in the claim cannot be urged in opposition to the claimant’s application for a writ of certiorari to review the proceedings.</p> <p>An award of damages in such proceeding made on an assumption that the claimant’s property had frontage on a certain street, the grade of which had not been changed, when as a matter of fact, the said street, though laid out upon a map, never legally existed, is erroneous, and the mátter will be remitted to the board of assessors for a new hearing and a new award.</p>

Appeal by the defendants, Hermann De Selding 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 13th day ‘of September, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendant, The Equitable Life Assurance Society of the United States, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of September, 1912, upon the decision of the court, rendered after a trial at the New. York Special Term, adjudging that there has been no forfeiture of a life insurance policy for $30,000 issued to the plaintiff by the defendant, and that the beneficiaries named therein, within sixty days after satisfactory proofs of his death, shall be entitled to the sum of $5,484, as paid-up insurance to which he became entitled upon the lapsing of' the policy by his failure to pay the quarterly premium of $209.70, due on the 19th day of April, 1891.</p>

<p>Appeal by the plaintiffs, Charles S. Danziger and another, from an order of the Supreme Court, made at the New York Special Term and entered in' the office of the clerk of the county of New York on the 13th day of March, 1913, denying the plaintiffs’ motion to punish the defendant for contempt for violating an injunction restraining him from using the word “ Lenox ” in connection with the manufacture and sale of waists.</p>

Appeal by the defendants, Frederick W. Heinzer and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1913, granting the plaintiff leave to serve an amended complaint, without the payment of costs.

Appeal by the plaintiffs, The Metropolitan Telephone and Telegraph Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York orí the 27th day of March, 1913, denying the plaintiffs’ motion for an injunction pendente lite.

Appeal by the defendant, Harris Wolff, 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 Néw York on the 27th day of January, 1913, sustaining the plaintiff’s démurrer to a partial defense and counterclaim.

Appeal by the defendant, Henrietta Loser, individually and as executrix, 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 20th day of March, 1913, denying the defendant’s motion for judgment on the pleadings.

Appeal by the defendants, Francis L. Leland 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 5th day of April, 1913, granting the plaintiff’s motion to be allowed the expense incurred by her in removing certain encroachments.

Appeal by the defendant, Michael H. Lynch, from a judgment of the Court of General Sessions of the Peace, of the county of New York, rendered against the defendant on the 28th day of February, 1913, affirming a'judgment of the City Magistrates’ Court convicting the defendant of a violation of section 2143 of the Penal Law.

Certiorari issued out of the Supreme Court and attested on the 25th day of November, 1911, directed to William R. Will-cox and others, composing and constituting the Public Service Commission of the State of New York for the first district, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in fixing the rate to be charged by the relator for gas for the years 1912 and 1913.

Appeal by the defendant, Charles H. Hyde,' from a judgment of the Supreme Court, rendered against the defendant on the 11th day of December, 1912, convicting him of the crime of receiving a bribe; also from orders denying the defendant’s motions for a new trial and in arrest of judgment, and also from an order entered in the office of the clerk of the county of New York on the 8th day of January, 1912, denying the defendant’s motion for a change of the place of trial.

Appeal by the plaintiff, Jacob Diamond, 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 5th day of January, 1912, reversing a judgment of the City Court of the city of New York in favor of the plaintiff entered upon the verdict of a jury and dismissing the complaint herein.

<p>Husband and wife — divorce — agreement to provide trust fund in lieu of alimony—replevin of stock placed in trust — irrevocable trust — res adjudicata.</p> <p>In an action by a wife for absolute divorce a stipulation was entered into whereby it was agreed that in the event that final judgment should be recovered in favor of the plaintiff a prior separation agreement should be terminated; that the husband would pay to a trust company a certain sum-weekly for the use of his wife during her life; that after her death ■ the use of such sum should be divided equally between then- two daughters, who were of age, during them lives, respectively; that in order to secure such payments he would assign to the trust company certain shares of stock; that if he should make default in payments said trust company should, in its discretion, sell the stock and apply the pro-, eeeds to the payment of any installment due; that if any part of the fund should remain after the termination of the trust it should be repaid to him or his personal representatives. He also agreed to convey a certain parcel of land' to his two daughters in trust to pay the rents and profits thereof to his wife during her life, and thereafter to hold the same for them own use, with absolute power of sale during the continuance of the trust. It was further agreed that if the husband should deposit a certain sum in money with the trust company for the benefit of his wife and daughters the payments heretofore mentioned should cease. In consideration of the above agreement it was stipulated that the plaintiff would not make any application, and should not receive any allowance ■ for counsel fees or alimony pendente lite. Upon the entry of judgment in the divorce action in favor of the plaintiff it was ordered that, the husband having provided for the support of his wife, no provision should be made therefor, but leave was granted the wife at any time thereafter, upon the husband’s failure to comply with the stipulation, to apply for suitable alimony. The husband complied with the stipulation entered into in the divorce action until sometime after the, death of his wife, when he brought an action of replevin against the trust company to recover possession of the stock. The answer for a first defense alleged the stipulation and for a second defense that the j udgment in the divorce action was res adjudicata.</p> <p>Held, that there was a valid trust created in favor of the daughters, which cannot be destroyed by the settlor alone, and a special property in the certificates of stock in the trustee, and hence a demurrer to the first defense was properly overruled;</p> <p>That as the validity of the agreement, so far as the daughters’ interests therein are concerned, was not passed upon in the divorce action, the judgment therein is not res adjudicata, and the demurrer to the second defense should have been sustained.</p> <p>Scott, J., dissented, with opinion.</p>

Appeal by the defendant, Frank-A. Carr, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1912, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 10th day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes in an action for false imprisonment and malicious prosecution.

<p>Highways—Highway Law, section 59a — interest on award of damages for change of grade.</p> <p>A claimant to whom an award of damages for the change of the grade of a street was made, before the addition of- section 59a to the Highway Law, by chapter 701 of the Laws of 1910, allowing interest on such claims from the time of the change of the grade to the time of the payment of the award, is not entitled to recover interest under said section.</p>

<p>Charges of professional misconduct against an attorney by the Association of the Bar of the City of New York.</p>

Appeal by the plaintiff, the Harlem Savings Bank, 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 14th day of March, 1913, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the plaintiff, Edward Hart, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of January, 1912, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, Sophie J. Schaus and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of May, 1912, upon the verdict of a jury; also from an order entered in said clerk’s office on the 3d day of May, 1912, denying the defendants’ motion for a new trial made upon the minutes, and also from an order entered on the 21st day of May, 1912, denying the…

<p>Appeal by the defendant, G-erson Silberstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of February, 1913, overruling the defendant’s demurrer to the complaint.</p>

<p>Appeal by the defendant, The Delaware and Hudson 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 hpon the verdict of a jury for $90,711.84, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Bills and notes — liability of bank upon certification of check.</p> <p>The rule that the certification of a check imposes upon the certifying bank an obligation to pay to the holder is subject to the qualification that if the certification has been induced by mistake and the rights of. no third parties have intervened and the holder has lost nothing nor changed his position in reliance upon the certification, the certifying bank may be relieved from liability.</p> <p>Hence, where in an action to recover against a bank upon its certification of a check it appears that the cheek in question represented proceeds of certain checks owned by the plaintiff which it had sent to the maker for collection; that at the time the check was received by the plaintiff it had become insolvent and was in the hands of a Deputy Superintendent, of Banks, who sent the check to the defendant for certification; that if said deputy had made an examination of plaintiff’s books he would have discovered that plaintiff was indebted to the maker of the check in a much larger amount than was called for and that within an hour after the check had been certified defendant received instructions from the maker to stop payment and immediately notified the plaintiff, the complaint should be dismissed.</p> <p>Lattg-hliit, J., dissented, with opinion.</p>

<p>Appeal — practice.— default in serving case.</p> <p>Where an appellant defaults in the service of printed papers, the Appellate Division has jurisdiction to dismiss the appeal,</p> <p>But a motion to open a default in serving the: case on appeal should be brought at Special Term. The Appellate Division will not Consider such motion. .</p>

<p>Tort — action for assault and rape — evidence — birth certificate of child alleged to have been born to plaintiff—exhibition of child to jury.</p> <p>Civil action to recover damages for assault and rape. Evidence examined, and held, that the plaintiff did not present a ease so free from reasonable doubt as to warrant the court in disregarding substantial errors.</p> <p>The plaintiff in such action claiming that she was made pregnant by the defendant was entitled to show, not only the immediate damages suffered from the assault, but that she conceived and gave birth to a child as the result of the intercourse in order to corroborate her testimony and to entitle her to damages to-the time the action was commenced.</p> <p>But in order to make such proof she was not entitled to put in evidence the transcript of a birth certificate filed with the department of health • of the city of ¡New York, in which the name of the mother was not that of the plaintiff, although the defendant was named as the father, there being no proof as to who the person was who made the certificate or that she had statutory authority to do so.</p> <p>Such certificate is only competent as evidence in so far as it affects public rights and interests and is not proof of facts therein recited as between the parties to such action.</p> <p>Moreover it was error for the court over the defendant’s objection to allow the child to be exhibited to the jury in order that through its resemblance to the defendant he might be. charged with its paternity, he having denied any intercourse with the plaintiff.</p>

Appeal by the plaintiffs, Henry A. Caesar and another, copartners, etc., 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 7th day of February, 1913, affirming an order of the City Court of the city of New York granting the respondent’s motion for judgment on the pleadings.

Appeal hy thq plaintiffs, Henry A. Caesar and another, copartners, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York ón the 7th day of February, 1913, affirming an order of the City Court of the city of New York granting the respondent’s motion for judgment on the pleadings.

Appeal by the plaintiffs, Henry A. Caesar and another, from a determination of the Appellate Term of the Supreme Court, entered in the office of the' clerk of the county of New York on the 7th day of-February, 1913, afffrming an order of the City Court of the city of New York granting the respondent’s motion for judgment on the pleadings.

<p>Appeal by the defendants, Martha Bernhard and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 1912, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendant, Abraham Levy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of November, 1912,- upon the verdict of a jury rendered by direction of the court.

<p>Appeal by Lippman Altmayer, as testamentary guardian, etc., from a decree of the Surrogate’s Court of the county of New York.</p>

Appeal by the plaintiff, Eda Sickles Crackanthorpe, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1913, sustaining the defendant’s demurrer to the1 complaint and dismissing thó ' complaint.

Appeal by the defendant, Vito Micelli, from a judgment of the Court of G-eneral Sessions of the Peace in and for the city and county of New York, entered on the 1st day of November, 1911, convicting the defendant of the crime of kidnapping.

Appeal by the defendants, Alexander W. Dreyfoos and' another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of March, 1913, granting the plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiff, Rose M. Pelz, 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 January, 1913, granting the defendant’s motion for judgment on the pleadings.

<p>Pleading — complaint —underwriting agreement — guaranty of payment of loan to syndicate manager — complaint stating cause of action.</p> <p>Appeal from a judgment overruling a demurrer to a complaint upon the ground that it failed to state a cause of action and that the plaintiff had no capacity to sue. The complaint set. out an agreement whereby the defendant subscribed for a certain number of shares of stock for which he agreed to pay one-half of the par value, the remaining portion of the stock being subscribed for by others at the same rate. The subscribers were “underwriters” and the contract provided that they desired to deal in the stock through a “syndicate manager," the other party to the agreement. The stock was transferred to the syndicate manager and a percentage of the subscription price was to be paid upon the maturity of a loan to be made to said manager who was empowered to negotiate the same on his personal note secured by a pledge of the stock, the subscribers guaranteeing repayment of the loan. The power to enforce the agreement was given solely to the syndicate manager who had sole right to; enforce payment of the obligations assumed by the underwriters. It was further alleged that subsequently another contract was made between the plaintiff and the syndicate manager reciting the prior contract and providing that the plaintiff should lend to the manager certain moneys on his promissory note, talcing a deposit of ■the stock'as security and an assignment of the underwriting agreement, which was done; that the defendant agreed to pay a certain percentage of the loan but failed to do so upon demand.</p> <p>Held, that the two contracts construed together constituted a guaranty of payment by the defendant to-the plaintiff; -</p> <p>That the defendant was liable independently of the guaranty although he did not pay a percentage upon the stock at the time of his subscription;</p> <p>That the plaintiff was the real party in interest and that a demurrer to .the complaint should be overruled..</p>

<p>Appeal by the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of March, 1913, which resettled a prior order granting a motion by the petitioner, Philip Woolley, for a reference to the commissioners of estimate and assessment in this proceeding of his claim for damages arising from the discontinuance of an established street.</p>

<p>Appeal by the plaintiffs, Charles S. Danziger and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1913, denying the plaintiffs’ second motion to punish the defendant for contempt of court.</p>

■ Appeal by the petitioner, William Sohmer, as Comptroller e£. 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 13th day of March, 1913, denying the petitioner’s motion for the transfer of certain court funds from the Peoples Trust Company of the county of Kings to the chamberlain of the city of New York, and also from an order entered in said clerk’s office on…

<p>Landlord and tenant — negligence—injury to goods by water—evidence not establishing liability of landlord.</p> <p>Action by a tenant against his landlord to recover damages for injury to goods caused by water which escaped from a crack in the cylinder of a pumping engine. The lease of another tenant in the same building required him to operate the pumping engine and to keep it in good condition. The pumping engine was designed to fill a tank upon the roof of the building which supplied water to the tenants in the upper stories. It appeared that the water pipes in the building froze and the defendant’s agent, on being notified, sent plumbers to make repairs, .and they shut off the water from the building, but before the work was completed the weather moderated so that the pipes thawed and during the night the water escaped through a crack in the cylinder of the pumping engine. The water had been shut off from the building by the plumbers by means of a stopcock in the basement which was in the possession and under the control of the plaintiff, and the water which escaped from the cylinder was greater in quantity than that which could have come from the pipes and water tank. Evidence examined, and "held, insufficient to establish negligence upon the part of the defendant.</p> <p>A landlord is only liable for defects in the demised premises remaining under his control where he has actual or constructive notice thereof. Where there is no evidence of actual notice, constructive notice cannot be predicated without evidence of the existence of a defect discoverable by reasonable inspection for such length of time that it could have been discoverable, by the exercise of reasonable care.</p>

Appeal by the plaintiff, David Huyler Gaines, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of November, 1912, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff and dismissing the complaint.

Appeal by the plaintiff, the Navarre Hotel and Importation Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of December, 1911, upon the dismissal of the complaint by the direction of the court at the' close of plaintiff’s case on a trial at the New York Trial Term.

Appeal by the defendants, Charles D. Halsey 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 30th day of November, 1912, upon the report of a referee.

Appeal by the defendant, Addison Smith, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of April, 1913.

Appeal by the defendant j .Addison Smith,' from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county pf New York on the 28th day of April, 1913, denying a motion to vacate an attachment on original papers.

Appeal by the plaintiff, Jeanette H. Joseph, 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 17th day of March, 1913, denying the plaintiff’s motion to compel the defendant to receive a reply and to open her default and permit her to serve such reply.

Appeal by the defendant, Andrew Miller, 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 26th day of November, 1912, upon the verdict of a jury rendered by direction of the court..

<p>Life insurance — suit to cancel policy — evidence •— admissions by agent — payment of premium by agent.</p> <p>Suit to have a- policy of life insurance declared null and void upon the ground that it had no valid inception. Evidence examined, and held, that there was no delivery of the policy to the insured or payment of premium on his behalf, and that a judgment for the plaintiff should be affirmed;</p> <p>That admissions of an agent of the plaintiff were binding upon the defendant, an assignee of the policy, only in so far as he claimed title through such agent.</p> <p>Payment of a premium by an insurance agent cannot inure to his benefit or to the benefit of the insured who did not direct or ratify such payment.</p>

<p>Cross-appeals by the plaintiff, the Colwell .Lead Company, and the defendant, the Construction Material and Coal Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of December, 1912. The plaintiff appeals from so much of said order as denies a motion to set aside the verdict of a jury in favor of the defendant upon the plaintiff’s claim for $650 and interest; and the defendant appeals from that part which directs that the verdict of a jury in favor of the defendant upon plaintiff’s claim of $1,500 be set aside and a new trial granted.</p>

Appeal by the defendant, James L. Titus, 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 4th day of December, 1912, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered in the office of the clerk of said court on the 20th day of June, 1912.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of October, 1912, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 1st day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporationsschool buildings, city of Mew York—limitation on powers of board of education—contract — acceptance of bid in excess of sum appropriated.</p> <p>Although the board of estimate and apportionment and the board of aldermen of the city of Mew York, on the request of the board of education, authorized the issuance of corporate stock, a certain portion of the proceeds of which was to be used for the construction of a particular school building, and notwithstanding that the lowest bid was in excess of said sum, the board of education awarded the contract to the bidder ‘1 subject to financial ability,” there was only a conditional acceptance of the bid". Hence, where the board of education canceled the contract upon the ground that there was not a sufficient appropriation for the school building, the bidder cannot .maintain an action to recover prospective profits.</p> <p>The amount expended for the erection of schools comes neither from the general nor special school fund provided for in section 1059 of the city charter, but is raised by the issuance of corporate stock under section 169 of the charter. , The board of education is bound by the limitation placed by the board of estimate and apportionment and the board of aldermen upon the amount raised for school buildings by the issuance of corporate stock.</p> <p>The board of education of the city of Mew York, while a corporation, is one of the administrative departments, and is bound by section 1541 of the charter, providing that no expense shall be incurred by a department unless an appropriation shall have been previously made covering the same, nor any expense in excess of the sum appropriated. .</p>

.Appeal by the defendant,'William M. Barrett, as president, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of November, 1912, reversing a judgment of the Municipal Court of the city of New York in fávor of the defendant dismissing the complaint, and granting judgment in favor of the plaintiff.

Appeal by the defendant, Max S. G-rifenhagen, register of the county 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 15th day of April, 1913.

<p>Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of November, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to a separate defense contained in the answer, and granting the relief asked in the complaint.</p>

Appeal by the defendants, Clarence P. Whitman and another, from an order of the Supreme Court, made at, the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 6th day of March, 1913, overruling the defendants’ demurrer to the complaint and granting the plaintiff’s motion for judgment on the pleadings.

<p>Appeal by William W. La Point from an order of the Supreme iOourt, ’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 April, 1913, directing the appellant to pay over, to the city chamberlain of the city of New York the sum of $5,235.41,-to be held pending the result of proceedings before a referee to take proof of the allegations of respondent’s petition.</p>

<p>Appeal by the plaintiff, Geoffrey T. Clarkson, as liquidator and -assignee, etc.!, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1913, sustaining demurrers to the complaint interposed by the defendants Wal'pole Rubber Company and Edward P. Metcalf.</p> <p>The plaintiff, a liquidator of a foreign insolvent bank, sues as a stockholder to enforce a cause of action belonging to the Valveless Inner Tube Company against the defendant and others who are charged with wrongfully converting its assets,</p>

Appeal by the defendant, the Pictorial Review 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 19th day of March, 1913, overruling the defendant’s demurrer to the complaint on the ground that it states no cause of action; , Action for libel..

<p>Mortgage — chattel mortgage —substitution of security.</p> <p>Appeal by the defendants from a judgment of the Supreme Court in favor of the plaintiff, entered in Otsego county clerk’s office on the 8th day of July, 1912.</p>

Appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendants, entered in the clerk’s office of the county of Delaware on the 26th day of April, 1910, upon the report of a referee.

Appeal by the relator from orders of the Special Term, entered in the office of the clerk of the county of Massau on the 34th day of March, 1913.

Appeal by the plaintiff from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 24th day of January, 1913, denying her motion to open a default and to vacate the judgment entered herein dismissing her complaint.

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

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 30th day of' September, 1912,- setting aside a verdict and granting a motion for a new trial upon the ground of newly-discovered evidence.</p>

<p>Appeal from part of an order of the Supreme Court, entered in the New York county clerk’s office on the 28th day of February, 1913, directing the appellant, an attorney, to deposit moneys with the city chamberlain for the account of the petitioner.</p>

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

<p>Appeal from an order directing the defendants to permit an inspection of various books of account.</p>

<p>Venue — transitory action — convenience of. witnesses.</p>

<p>Appeal from so much of an order of the Supreme Court, entered in the New York county clerk’s office on the 6th day of July, 1912, as directs payment of taxable costs to date as a condition of opening default.</p>

<p>Habeas corpus to inquire into the cause of imprisonment or restraint of the relators.</p>

<p>■ Crime — correction of judgment, by appellate court.</p>

Appeal by the defendant, Benjamin Markowitz, from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 23d day of September, 1912.

Appeal by the defendant, William P. Hickok, from a judgment of the Supreme Court, Special Term, made and entered in the office of the clerk of the county of Westchester on the 22d day of October, 1912.

Appeal by relator from an interlocutory judgment of the Supreme Court, entered in the Few York county clerk’s office on the 23d day of January, 1913, and also from an order entered on the 18th day of January, 1913, sustaining a demurrer to an alternative writ of mandamus, with leave to obtain an alternative writ.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 17th day of January, 1913, approving an undertaking on appeal.</p>

<p>Surrogate — settlement of accounts ■—jurisdiction.</p>

Appeal by the defendant, Emile Offeman, from so much of an order of the Supreme Court, entered in the New York county clerk’s office on the 30th day of January,-1913, as denied in part a motion to make the complaint more definite and certain.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 4th day of December, 1913, directing-a compulsory reference.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 30th day of January, 1913, vacating an order for the examination before trial of the officers of plaintiff and for the production of its books and papers.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 5th day of March, 1913, granting the plaintiff’s motion to restore the action to the trial calendar upon conditions.</p>

<p>Appeal from an order of the Surrogate’s Court denying a motion of exec- ■ utor and affirming orjder fixing transfer tax. Order affirmed, with ten dollars costs and disbursements.</p>

<p> Lien completion of work. </p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office ón the 30th day Of January, 1913, on an order entered on the 39th day of January, 1913, and also from said order granting the plaintiff’s motion for judgment on the pleadings.</p>

<p>Appeal from an order of the Surrogate’s Court, entered on the 6th day of January, 1913, fixing and determining a transfer tax, on appeal from an order of said court theretofore entered.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 4th day of March, 1913, denying a motion for a new trial on the ground of newly-discovered evidence.</p>