Volume 157 — New York Appellate Division Reports

Certiorari issued out of the Supreme Court and attested =on the 14th day of November, 1912, directed to William Sohmer, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in fixing the franchise tax of the relator for the year beginning November X, 1909, and ending October 81, 1911.

Appeal by Joseph Van Order from an order and determination of the commissioner of public safety of the city of Troy, made on the 28 th day of December, 1912, discharging the appellant from the fire department of said city.

Appeal by the plaintiff, Aaron Wells, from a judgment of the County Court of Tompkins county, entered in the office of the clerk of said county on the 31st day of August, 1912, reversing a judgment of the City Court of Ithaca in favor of the plaintiff entered in the office of the clerk of said court on the 19th day of March, 1912.

Appeal by the defendant, the Albany Foundry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 17th day of October, 1912, upon the verdict of a jury rendered by direction of the court after a trial at the Albany Trial Term.'

Appeal by the plaintiff, The Long Island Railroad Company, 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 22d day of May, 1902, dismissing the plaintiff’s claim herein.

Appeal by the defendant, the B. F. Sturtevant Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 14th day of October, 1912, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 12th day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Delaware, Lackawanna and Western 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 Tompkins of the 13th day of December, 1811, upon the verdict of a jury for $1,000.

<p>Decedent’s estate — suit by administrator to recover money of decedent — fraud and undue influence — gift — evidence.</p> <p>Action by an administrator to recover certain sums of money received by his intestate from the sale of land, and alleged to have been obtained from him by the defendant, with whom he lived until his death, by the exercise of fraud and undue influence. Evidence examined, and held, that the moneys were voluntarily given by the decedent to the defendant, without fraud and undue influence, and that a judgment for plaintiff should be reversed and a -new trial granted.</p> <p>Kellog-g-, J., dissented.</p>

Appeal hy the defendants, William Farson and others, doing business as copartners, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 27th day of November, 1912, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, overruling the defendants’ demurrer to the complaint.

Appeal by the defendants, Ada M. Jones and another, as executrices, etc., from a judgment of the County Court of Cortland county, entered in the office of the clerk of said county on the 9th day of October, 1912, affirming a judgment of the City Court of Cortland in favor of the plaintiff.

Appeal by the plaintiff, Daniel A. Nolan, from an order and determination of John E. Cole, as commissioner of public safety of the city of Schenectady, New York, made on the 21st day of November, 1912, convicting the plaintiff of a violation of the rules and conduct of the police department and dismissing him therefrom.

Appeal by the defendant, The Casein Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 9th day of October, 1911, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 25th day of October, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lottie 0. G-raham, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 29th day of January, 1913, upon the decision of the court, rendered after a trial at the Washington Trial Term, a jury having been waived, in an action for divorce.

Appeal by the defendant, Isaac Cohen, from a judgment of the County Court of Schenectady county, entered in the office of the clerk of said county on the 6th day of June, 1912, upon the verdict of a jury.

Appeal by the defendants, George W. Bretsch 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 St. Lawrence on the 1st day of July, 1912, upon the decision of the court rendered after a trial at the St. Lawrence Trial Term before the court without a jury.

<p>Appeal by the plaintiff, Mary Landmesser, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the 2d day of January, 1913, granting the defendant’s motion to strike out portions of the complaint as irrelevant and redundant.</p>

Certiorari issued out of the Supreme Court and attested on the 6th day of December, 1912, directed to Harry M. Kaiser, agent and warden of Clinton Prison, commanding him to certify and return to the office of the clerk of the county of Clinton all and singular his proceedings had in the matter of the removal and dismissal of the relator from the position of guard at Clinton Prison.

Appeal by the defendant, the Syracuse, Binghamton and New York 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 Cortland on the 23d day of February, 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 January, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Jannette Carlin, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 13th day of December, 1912, upon the decision of the court, rendered after a trial at the Broome Special Term, in an action to foreclose a mortgage.

Appeal by the plaintiff, William E. Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Eensselaer on the 27th day of September, 1912, and apparently re-entered on the 30th day of September, 1912, upon the verdict of a jury; also from an order entered in said clerk’s office on the 27th day of September, 1912, denying the plaintiff’s motion for a new trial made upon the minutes, and also from an order…

Appeal by the defendant, the B. Gr. Coon 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 Tompkins on the 14th day of December, 1911, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 11th day of January, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Abbie Lasher, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 6th day of February, 1913, granting the defendant’s motion to strike out certain portions of the complaint as irrelevant.</p> <p>Also an appeal by the defendant, Thomas F. McDermott, as executor, etc., from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 6th day of February, 1913, denying' the defendant’s motion for a stay of proceedings until the payment of costs in a former action.</p>

Appeal by the defendant, The Delaware, Lackawanna and Western Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 1st day of October, 1912, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Libel — statements in petition for removal of school trustee — evidence — privileged statements.</p> <p>In an action for libel, based upon a petition by the defendant to the State Commissioner of Education for the removal of plaintiff and others as school trustees, it was charged in the petition that said trustees were unfit and incompetent persons, intellectually, morally and temperamentally, to hold the office, and that the plaintiff could barely read or write, had no education, was addicted to the use of intoxicating liquor, and had frequently been intoxicated in public places in the district. The application resulted in the removal of one of the trustees, but in the denial of the application for the removal of the plaintiff, upon the ground that his inability to read or write was not a proper ground under the statute for the removal by the Commissioner, and that he had not been proven guilty of intoxication while holding the office of school trustee.</p> <p>Hold, that findings by the jury that the defendant did not justify the charges made in his petition, and that he did not believe that such charges were relevant to the proceedings instituted, are against the weight of evidence, and that a judgment in favor of the plaintiff should be reversed and the complaint dismissed.</p> <p>The matters stated by the defendant in his petition were privileged.</p> <p>Lyou, J., voted for a reversal and a new trial; Woodward, J., dissented, with opinion.</p>

<p>Fraud—pleading — complaint in action to recover moneys alleged to have been fraudulently procured from State under contracts to furnish coal to State prisons—judgment upon the pleadings denied — when acceptance by agent of State no defense.</p> <p>A complaint in an action by the People, which alleges, first, that the defendants, who furnished a certain quantity of coal to a State prison between certain dates, fraudulently represented to the warden of said prison and to the agents of the State that the coal was pea coal, knowing that a certain quantity of it was not pea coal but of an inferior quality and worth less, and that the said agents, relying upon said false representations, made payments for pea coal; second, that the defendants, after them bid to furnish egg anthracite coal to a State prison had been accepted, with intent to defraud the People wrongfully induced the agents and wardens to enter into written contracts for the delivery of grate coal, which was inferior and cheaper than egg coal, and that, pursuant to said contracts, they delivered a certain quantity; that defendants wrongfully and unlawfully presented claims to the agents of said prison for coal so furnished and received pay therefor in excess of the value of coal furnished, for which the plaintiff demands judgment; third, that between certain dates the defendants delivered to a State prison a certain quantity of grate coal, the same being of an inferior quality and of a value less than egg coal, and during said period presented to the agent and warden claims for egg coal, knowing that such claims were false and fraudulent, and that said defendants thereby obtained, without authority, money belonging to the State to a certain amount, states facts sufficient to constitute a cause of action, and an order granting an application by the defendants for judgment upon the pleadings should be reversed.</p> <p>• The acceptance of the coal by an agent of the State is no defense if such acceptance was induced by the fraudulent representations of the defendants or if the agent or warden was in collusion with the defendants. Kellogg and Woodward, JJ., dissented, with memorandum.</p>

Appeal by the relator, Lester Gf. Wauful, from a final order of the Supreme Court, entered in the office of the clerk of the county of Albany on the 23d day of January, 1913, dismissing an alternative writ of mandamus.

<p>' Evidence — Code of Civil Procedure, section 839 — when witness not “ interested in the event.”</p> <p>Where on proceedings for the probate of a will, it is claimed that the will had been canceled and annulled by a later one, a person named as a beneficiary in the subsequent will is not “ a person interested in the event,” within the meaning of section 829 of the Code of Civil Procedure, and the exclusion of his testimony introduced to prove the execution of the subsequent will, the witness being dead, is reversible error.</p> <p>Where a witness is not testifying to a personal communication or transaction with a deceased person in relation to the question at issue, his testimony is not incompetent under section 829 of the Code of Civil Procedure, although he is interested in the event.</p>

Appeal by the defendant, Armond E. Wheaton, from a judgment of the County Court of Tompkins county, entered in the office of the clerk of said county on the 8th day of October, 1912, reversing a judgment of the City Court of Ithaca in favor of the defendant, and also from an order of said County Court entered in said clerk’s office on the same day reversing said judgment of the City Court and directing a new trial.

Appeal by the plaintiff, William Barton, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 10th day of January, 1913, upon an order reversing a judgment of the Justice’s Court in favor of the plaintiff, entered in said clerk’s office on the 10th day of January, 1913.

Cross-appeals, by the plaintiff, Charles Sisson, and the defendant, Lawrence Barnum, from a judgment of the Supreme Court in favor of the plaintiff and against the defendant, Lawrence Barnum, entered in the office of the clerk of the county of Chenango on the 18th day of September, 1911, upon the decision of the court rendered after a trial at the Broome Special Term.

Appeal by the plaintiff, the Adams Laundry Machinery Company, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Schenectady on the 23d day of January, 1913, retaxing the respondent’s costs herein, and amending the judgment theretofore entered herein accordingly.

Certiorari issued out of the Supreme Court and attested on the 3d day of December, 1912, directed to Frank W. Stevens and others, Commissioners, constituting the Public Service Commission of the State of New York for the Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in requiring the New York Telephone Company to furnish telephone service to the Metropolitan Telephone and…

Appeal by the defendant, the State Board of Tax Commissioners, and The City of New York, intervenor, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 18th day of June, 1912, reducing special franchise taxes assessed against the relator for the year 1905.

<p>Reargument of an application heretofore made by Charles M. Higgins for a modification of a decree entered herein on the 20th day of September, 1910. (See 140 App. Div. 750; 146 id. 897; 153 id. 933.)</p>

<p>Canal — suit to enjoin State from interfering with bridge — duty of State to build new bridge under the Barge Canal Act — injunction.</p> <p>Where in a suit by the owner of a toll bridge located parallel and very close to an aqueduct which carries the barge canal across the Mohawk river, to enjoin the State from interfering with its bridge, except for the purpose of constructing a new bridge required by the Barge Canal Act, it appears that arrangements have been made for the use of the aqueduct over the canal and not to open the canal for several months, so that public necessity does not at this time require the destruction of plaintiff’s bridge, an order vacating a temporary injunction granted in the action should be reversed, and the injunction restored, with leave to defendants to move to vacate the same when the destruction of the bridge shall become necessary to the opening of the canal.</p>

Cross-appeals — By plaintiff from so much of an order, entered in Eensselaer county clerk’s office September 7, 1912, as sets aside a verdict in favor of the plaintiff and grants a new trial, upon the grounds that said verdict is contrary to law. By defendant from so much of the same order as denies defendant’s motion to dismiss the complaint.

Appeal by the defendant, the Glens Falls Gas and Electric Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 3d day of June, 1912, and also from an order entered in said clerk’s office on the 21th day of June, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 14th day of October, 1912, upon the report of a referee.

Appeal by the plaintiff, Samuel Cohn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Master and servant — negligence — death of workman by fall of gravel pile — Employers’ Liability Act—defects in the ways, etc.— erroneous charge.</p> <p>Where in an action to recover for the death of a workman it appeared that when he and his fellow-servants were at work at the base of a pile of gravel or stone, with an overhang of from two to three feet, shoveling gravel therefrom, a part of the pile fell upon the intestate and killed him, it was error for the court to charge that the defendant’s liability rested, if at all, on the Employers’ Liability Act, and to submit to the jury over the defendant’s objection the question of defects in the ways, works, machinery or plant.</p> <p>Thomas, J., dissented.</p>

<p>Appeal by the defendant, Francesco Oricuoli, from a judgment of the County Court'of Kings county, rendered against him on the 16th day of December, 1912, convicting him of the crime of carrying concealed weapons.</p>

Appeal by the plaintiff, Gerhard Domhoff, 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 26th day of December, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 19th day of January, 1912, denying the plaintiff’s motion for a new trial…

<p>Receiver of partnership—removal for failure to commence action to recover property — indemnity for costs and expenses — right of receiver to appear on motion for removal.</p> <p>Prior to the commencement of a suit for the dissolution of a partnership, a deed of a large portion of the real property and a bill of sale of substantially all of the personal property of the partnership had been made by one of the partners to a creditor as collateral security for a partnership debt which was in excess of all of the assets of the partnership. The • creditor refused to surrender the property to the receiver of the partnership. Although the affidavit of the plaintiff’s attorney, used as the basis of a motion for the removal of the receiver appointed in the suit, contains a statement that the trial justice contemplated that the creditor should make a deed of the property to the receiver, and also that the bill of sale should be set aside, thereby transferring to the receiver possession of said real estate and personal property, the judgment did not so provide.</p> <p>Held, that the receiver should not be removed for failure to commence an action for the recovery of such real estate and personal property where it appears that his actual and necessary disbursements exceed anything which he has realized from the assets of the partnership or is likely to realize, and he has been refused indemnity for costs and expenses of the proposed action.</p> <p>A receiver regularly appointed, whose removal is sought upon the ground of incompeteney or lack of integrity, may appear and be heard in his own defense.</p>

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

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of February, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 6th day of February, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Jackson Memorial African Methodist Episcopal Zion Church, 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 W estchester on the 24th day of January, 1913, denying the defendant’s motion for a change of venue.

Appeal by the plaintiff, The People of the State of New York, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 15 th day of February, 1912, sustaining a demurrer to the indictment charging the defendants with being common gamblers.

<p>Appeal by the defendant, The Nassau Electric Railway Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of March, 1913, granting the plaintiff’s motion for the appointment of a referee to fix the compensation of plaintiff’s attorney.</p>

Appeal by the defendants, Joseph T. McOaddon and another, individually and as executors and trustees, etc., and another, from part 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 10th day of February, 1913.

Appeal by the plaintiff, Mary Clarissa Almind, 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 31st day of December, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Hugh P. Skelly, 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 6th day of August, 1912, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Highways — right of contractor to lay tramway over city street — section 25 of the Rapid Transit Act —injunction.</p> <p>Where in a suit by a number of abutting owners who own the fee of a city street, and whose properties front on both sides thereof, to procure an injunction against the laying and use of a tramway by a contractor with the consent of the Public Service Commission, granted under section 25 of the Rapid Transit Act, it appears that the proposed tramway will be located about fifteen feet distant from the windows of some of the abutting houses, and will be used day and night for a period of about two years for the transportation of dump cars filled with earth, and is very likely to result in serious damage to the abutting owners, such use of the street is not a highway use within the scope of the easement acquired in said street by the public authorities, and an order of the Special Term granting an injunction should be sustained pending the trial of the suit.</p>

Appeal by Leander B. Faber, as receiver, etc., and another, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 7th day of March, 1913, and entered in the office of the clerk of the county of Kings, vacating a former order in the same proceeding.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of July, 1912, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 12th day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, A. Entemann, Inc., from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 2d day of April, 1913.

Appeal by the defendant, the Virginia Hot Springs Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of February, 1913.

Appeal by the defendant, the Gracehull Realty Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of February, 1913, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Appeal by the defendant, American Bridge 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 Westchester on the 2 Ah day of June, 1912, upon the verdict of a jury for $24,896.50, and also from an order entered in said clerk’s office on the 2d day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Master and servant—negligence — death cf employee through caving in of sewer excavation — evidence—Labor Law, section 18, construed— “structure” — “stay” — questions raised on appeal from nonsuit—pleading statute.</p> <p>In an action to recover for the death of plaintiff’s intestate, through the caving in of a sewer excavation in the process of construction by defendant contractors, by whom the intestate was employed, the complaint, among other allegations of the cause of the accident, alleged that said defendants failed to properly shore, support and secure the excavation and the ground contiguous thereto. At the close of plaintiff’s case the complaint was dismissed as to the defendant contractors, and exceptions ordered to be heard in the first instance by the Appellate Division.</p> <p>Evidence examined, and held, that plaintiff’s exceptions must be sustained and a new trial granted;</p> <p>That, although defendant’s liability under section 18 of the Labor Law was not presented on the trial, it was properly raised on appeal under the allegations of the complaint;</p> <p>That said statute being a general one, it was not necessary to specially plead it;</p> <p>That the sewer excavation, although located below the surface of the street, constitutes a “ structure” within the meaning of the statute, and that the sheathing, shoring and bracing of such structure are included within the terms of the statute and constitute a “ stay.”</p> <p>The provisions of said statute are not to be limited to appliances furnished to an employee, with which he is to perform his labor, and may be applied to structures intended as was the sheathing, shoring and bracing in this case, to prepare the place where work is to be performed, and render it more safe.</p>

Appeal by the defendant, Annie Patterson, 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 3d day of March, 1913, denying the said defendant’s motion for judgment on the pleadings.

Appeal by the defendant, Wilbur 0. Johnson, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of March, 1913.

Appeal by the plaintiff, Andrea Polo, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 16th day of J anuary, 1913, upon an order, entered in said clerk’s office on the same day, granting the defendants’ motion to set aside the verdict of a jury theretofore rendered in favor of the plaintiff and dismissing the complaint, and also from the said order pursuant to which the judgment was entered.

Appeal by the plaintiff, Andrea Polo, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of February, 1913, denying the plaintiff’s motion to vacate and set aside an order theretofore made herein discharging the defendant Domenico D’Achille from custody.

<p>Courts—jurisdiction—action by non-resident against foreign corporation for personal injuries caused in foreign State — Code of Civil Procedure, section 1780, construed—said section constitutional — practice—objection to jurisdiction.</p> <p>The court is without jurisdiction to entertain an action against a foreign railroad company to recover damages for personal injuries where the injury occurred in a foreign State and the plaintiff is a resident thereof. Section 1780 of the Code of Civil Procedure, depriving the Supreme Court of jurisdiction under the circumstances aforesaid, is not unconstitutional.</p> <p>Section 1780 of the Code of Civil Procedure, stating the circumstances under which a foreign corporation may be sued here, relates not to the legal capacity of a non-resident to sue in our courts, but to the nature of the subject-matter of the action. Hence, the defendant may take advantage of the lack of jurisdiction at any stage of the action, although such objection has not been raised by answer.</p>

Appeal by the defendant, Louis J. Lang, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 20th day of July, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by Magdalena E. Sohmadeke from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of September, 1912, settling the accounts of the trustee herein.</p>

Appeal by the defendants, Alfred L. Norris 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 Kings on the 24th day of June, 1911, upon the verdict of a jury for $17,541.25, and also from an order entered in said clerk’s office on the 22d day' of June, 1911, denying the defendants motion for a new trial made upon the minutes.

Appeal by the plaintiff, Bert Butler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 8th 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 Westchester Trial Term, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the same day denying the plaintiff’s motion…

Appeal by the defendant, William B. Rosencrans, 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 8th day of March, 1913.

Appeal by Francis R. Hitchcock, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of February, 1913.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 16th day of April, 1912, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 23d day of April, 1912, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Charles Veit, 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 25th day of January, 1913, upon the dismissal of the complaint by direction of the court upon the opening on a trial at . the Kings County Trial Term.</p>

Appeal by the defendant, The New York, New Haven and Hartford Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of October, 1911, upon the verdict of a jury for $9,900, and also from an order entered in said clerk’s office on the 10th of November, 1911, denying defendant’s motion for a new trial made upon the minutes.

<p>Crime — grand larceny, second degree — Penal Law, section 1290 — obtaining money by a false pretense.</p> <p>A defendant who pleads guilty to an indictment charging him with grand larceny, second degree, in that with an intent to deprive the complainant of her property and appropriate it to his own use, she having answered an advertisement requesting the services of a governess, he falsely stated that he was authorized by his sister, a resident of another State, to engage such governess on condition that she would advance moneys to him to pay her railroad fare to the residence of the alleged sister, which representations were known to be false, and “ by color and aid thereof ” feloniously obtained money from the complainant, is not entitled to an arrest of judgment upon the ground that the facts charged do not constitute a crime.</p> <p>Such representations are not promissory only, being accompanied by a false statement that the defendant’s sister resided in the foreign State and needed the services of a governess.</p>

Appeal by Mary A. McQuade, a .beneficiary, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 26th day of September, 1912, denying her motion to compel the Central Trust Company of New York, as substituted trustee, to pay her $1,000 on account of income.

Appeal by the defendant, The Great Atlantic and Pacific Tea Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of October, 1912, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 23d day of October, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Arthur K. Bonta, 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 February, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 28th day of February, 1913, denying the defendant’s motion for a new trial made upon the minutes. „

<p>Appeal by the Municipal Civil Service Commission of the City of New York and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1913, granting the petitioner’s motion for a peremptory writ of mandamus requiring his reinstatement to the position of clerk in the office of the municipal civil service commission of the city of New York, from which he was removed by an order of the commission on the 6th day of November, 1912.</p>

Appeal by the defendant, Henry Allen Tenney, 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, in so far as such order denies in part the defendant’s motion for a bill of particulars.

Appeal by the plaintiff, Henry E. Fox, from a judgment of the Supreme Court in favor of the defendant, entered in the of6.ce of the clerk of the county of New York on the 30th day of October, 1912, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 21st day of October, 1912, denying the plaintiff’s motion for a new trial.

Appeal by the plaintiff, Fannie Mendelson, 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 30th day of November, 1912; upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Practice — Justice’s Court — error in date of summons — effect of failure to amend.</p> <p>Justices’ Courts not being courts of record acquire jurisdiction only through strict compliance with the statute. The provisions of section 24 of the Code of Civil Procedure as to disregarding errors in process apply only to courts of record.</p> <p>Where a summons issued by a justice of the peace was antedated through clerical error, the plaintiff may apply for an amendment correcting the date; but having failed to do so, the justice should dismiss the action on motion of the defendant.</p>

<p>Husband and wife — conveyance by husband to avoid payment of alimony — remedies of wife — failure to prove insolvency — evidence.</p> <p>It seems, that if after a judgment of separation in favor of a wife she wishes to attack the validity of transfers made by her husband she should reach the property by sequestration proceedings and by an action by a receiver if necessary.</p> <p>A wife, having obtained a decree of separation, cannot maintain a suit to set aside transfers of lands alleged to have been made by her husband for the purpose of avoiding payment of alimony without proving that the husband was made insolvent by such conveyance.</p> <p>In such suit a verified petition made by the husband in an application for release from imprisonment alleging his insolvency is not admissible as against his grantee.</p>

Appeal by the defendant, Barney Deckenbrock, from a judgment of the Supreme Court, rendered against the defendant and entered in the office of the clerk of the county of Kings on the 6th day of January, 1913, upon the verdict of a jury convicting him of the crime of abduction, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporations — action to restrain interference with property alleged to encroach upon highway — dedication for highway purposes — proof not showing acceptance by city—will—devise creating determinable fee.</p> <p>Appeal from a judgment awarding damages for the removal of a house by municipal authorities upon the ground that it encroached upon a public highway, and restraining further invasion of the plaintiff’s land by the city.</p> <p>It was claimed that a strip of the land which had been occupied by the plaintiff and her predecessors for sixty years was upon a portion of the street which had been dedicated by a former owner for street purposes and accepted by the city. Evidence examined, and held, that even if such dedication had been made there had been no acceptance of that part of the street by the defendant.</p> <p>A devise to a wife “ as long as she shall remain my widow,” with a provision that if she married she shall only have the interest provided by statutes, creates a determinable fee.</p>

Appeal by the defendant, Bart Dunn, 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 28th day of February, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 15th day of February, 1911, granting the plaintiff’s motion for the direction of a verdict, and also from an order entered on the 24th day of April, 1911,…

Appeal by the petitioner, Maria D. Hitchings, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of April, 1913.

<p>Municipal corporations — chapter 769 of the Laws of 1896, providing for a water supply for the village of White Plains, construed — authority of water commissioners to purchase water—ultra vires contract — Village Law.</p> <p>Chapter 769 of the Laws of 1896, entitled “ An act to provide for supplying the village of White Plains with water, and authorizing the issue of bonds therefor, and to create a board of water commissioners for said village,” examined, and held, not to limit the power of the board of water commissioners of said village to the construction and operation of a municipal plant; but that, after having acquired a plant, it had the right, if necessary, to increase its water supply by any reasonable . method.</p> <p>A contract by said board with an individual to supply water to the village for a period of fifteen years, at a certain price per gallon, was not ultra vires, although not specifically authorized by the statute.</p> <p>Said contract was not void because it covered a period longer than one year, in violation of section 8 of the statute, which prohibited the board of water commissioners from entering into contracts for “ any service rendered or to be rendered or supplies furnished or to be furnished for a longer period than one year.”</p> <p>The Village Law has no application to the water commissioners appointed under chapter 769 of the Laws of 1896, and hence the above contract is not void because made to cover a greater period than five years.</p> <p>Carr and Stapleton, JJ., dissented.</p>

<p>Appeal by the plaintiff, William J. McGrath Power, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of February, 1912, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial.</p>

<p>Tax—repeal of special acts by General Tax Law — collection of unpaid taxes, county of Westchester.</p> <p>The General Tax Law (Laws of 1896, chap. 908) repealed by implication a special act (Laws of 1874, chap. 610, and acts amendatory thereof) providing for a collection of unpaid taxes in the several towns of the county of Westchester.</p> <p>Said special acts were not saved from repeal by section 94 of the General Tax Law of 1896, providing that “this article shall apply to all the cities or towns of the State, in so far as the matters herein provided for do not conflict with the special and local laws of such cities or towns,” for said section is expressly limited to the provisions of article 4, while the provisions for the sale of lands for unpaid taxes are governed by article 6.</p>

Appeal by the defendant, New York Inter-Urban Water Company, 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 28th day of March, 1913, denying defendant’s motion for an order directing that the complaint be made more definite and certain.

<p>Appeal by the plaintiff, Joseph Gordon, 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 19 th day of January, 1912, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.</p>

<p>Corporation — master and servant — action by officer of corporation for breach of contract fixing salary — effect of re-election to office without resolution as to amount of salary—payments conditioned upon business of corporation.</p> <p>Action against a corporation brought by its secretary and treasurer to recover damages for an alleged wrongful discharge from employment. The plaintiff, having been elected to said office, had a certain salary assigned him by resolution of the directors with an additional sum payable semi-annually for preparing financial reports and an additional compensation not exceeding a certain sum as in the discretion of the president the business might warrant. Having been re-elected under the same contract for several years, he was finally re-elected to office under a general resolution re-electing all the corporation officers “for the ensuing year,” there being no resolution as to his salary. Subsequently the business of the corporation was removed to another city and the plaintiff rendered no further services to it but acted for another corporation associated in business with the defendant and thereafter was by resolution removed from office. On all the evidence,</p> <p>Held, that although the resolution at the last election did not specify the salary to be received by the plaintiff, he was, under the circumstances, entitled to the same compensation as he had previously received;</p> <p>That he was not entitled to recover such additional compensation as had been previously left to the discretion of the president depending upon the business of the company.</p>

Appeal by the defendant, the Meade Transfer 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 20th day of December, 1912, upon the verdict of a jury for $3,120, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Eva Siegel, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of April, 1913, transferring the above-entitled cause from the City Court of New York to the Supreme Court, in so far as said order directs that the case be placed upon the proper calendar of the Supreme Court.

Appeal by the plaintiff, Salvatore Scognamillo, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1913, as resettled by an order entered in said clerk’s office on the 24th day of February, 1913, overruling a demurrer to a counterclaim contained in the amended answer of the defendants Antonio Passarelli and Alfonso Passarelli.

Appeal by the defendant, the Columbia-Knickerbocker Trust Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 11th day of February, 1913, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint herein.

Appeal by the defendant, Philip Friedman, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 4th day of March, 1913, affirming a judgment of a city magistrate of the city of New York, convicting the defendant of a violation of section 2147 of the Penal Law.

Appeal by the defendant, Mary Clementine Smedley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1913, staying the execution of a judgment entered upon an order of said court in so far as it directed a restitution of funds and property for the recovery of which this action was brought, which were delivered to the plaintiff pursuant to a judgment entered upon the…

Appeal by the defendants, the United States Rubber Company 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 llth day of March, 1913, denying a motion made by the defendant Samuel P. Colt that the plaintiff’s reply be made more definite and certain.

Appeal by the plaintiff, John A. Hartford, from a judgment of the Siipreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of February, 1913, 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 10th day of February, 1913, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>County — audit of claims against objection of comptroller — submission of controversy to court not authorized.</p> <p>Under the County Law the board of supervisors cannot audit any claim which the county comptroller advises should be rejected or modified, except in accordance with his decision, unless two-thirds of all members of the board shall vote in favor of the audit contrary to such decision. It seems, that the proper method of reviewing the action of boards of audit having judicial or quasi-judicial powers respecting the audit of claims, is not by action, but by certiorari or mandamus, depending upon the circumstances of the particular case.</p>

Appeal by the defendants, George F. Martens, Jr., 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 Kings on the 6th day of May, 1912, upon the decision of the court after a trial at the Kings County Special Term in an action to register title.

<p>Real property — registration of title — trial of issues — failure to name parties defendant—jurisdiction—duty of court to examine certificate of title — when order for service of summons not conclusive proof that all claimants have been made parties.</p> <p>Where, in an action for the registration of title to real property no persons were originally named as parties defendant, except the People of the State of New York, and “all other persons, if any, who have any right or interest in or lien upon the property affected by this action, or any part thereof,” but subsequently another party was made defendant, and the complaint alleged among other things that the plaintiff was the owner in fee simple absolute of the property described by virtue of a certain deed to him, and also by adverse possession, and the defendant interposed an answer which denied the allegations of the complaint, and particularly that plaintiff was the owner in fee simple absolute, either by virtue of the deed or by adverse possession or otherwise, and specifically alleged various defects in plaintiff’s title, the defendant, after a demand that the ordinary rules of evidence be applied, was entitled to a trial of the issues, and it was error for the court to give judgment for the plaintiff, as on a motion for judgment on the pleadings.</p> <p>Where in such action it appeared from the facts stated in the official examiner’s certificate that plaintiff did not have an estate in fee simple in the property, but that several other persons had or might have some interest therein, and no facts were stated by the plaintiff respecting the existence or non-existence of such claimants, or showing any effort on his part to obtain information relating to them, the court had no jurisdiction to make an order for the issuance of a summons in which such claimants were not specifically named or appropriately described.</p> <p>At the commencement of an action for the registration of the title to real property, the court is not justified in relying upon the conclusions of the official examiner, but is bound to carefully and critically examine the certificate, the abstract and the accompanying affidavits, and to see that, assuming all of the facts therein stated (as distinguished from mere conclusions, inferences and opinions; to be true, not only does the applicant appear to have a title free from reasonable doubt, but that every person who might have any right or interest therein or lien thereon is specifically named as a party defendant, if such name is known or can be ascertained. Unless this be done, the court has no jurisdiction to direct that such action shall be commenced, or to authorize the issuing or service of a summons therein.</p> <p>The provisions of section 380 of the Real Property Law, that “ the question of the sufficiency of the proof that all such owners and claimants who can be found by diligent inquiry are duly and specifically named and made parties to the action shall be for the court,” and that “its decision that such proof is sufficient shall be shown by its making the order for the service of the summons and the commencement of the action as prescribed in this article, and such decision or order shall not be drawn in question after six months from the time when the final judgment in the action is entered,” do not apply where plaintiff’s right to registration is contested and where a final judgment in his favor is before the court for review.</p> <p>There is a distinction between a ease where there is some evidence upon which the court may act, and one where there is no evidence upon which to base its determination. In the former case the court might have jurisdiction, although its decision might be erroneous, but in the latter it has no jurisdiction and its order is void.</p>

<p>Eminent domain — condemnation proceedings — order appointing referee to hear and determine issues — appeal.</p> <p>' Where, upon the return day of a motion for the appointment of commissioners in condemnation proceedings the defendants appear, make preliminary objections on the ground that the petition is insufficient, and interpose an answer, an appeal from an order appointing a referee to hear and determine the issues raised by the petition and answer is unauthorized and should be dismissed.</p>

Appeal by the defendant, Frank McWilliams, Incorporated, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 27th day of January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of January, 1913, denying defendant’s motion for a new trial.

Appeal by the defendant, Farish-Stafford Company, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of April, 1913, denying a motion to vacate an order of reference.

<p>Appeal by the defendants, Isaac Lichtenstein and another, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 5th day of March, 1913, overruling a demurrer to the complaint.</p>

Appeal by the defendants, Sagamore Development Company and others, 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 21st day of May, 1913, overruling demurrers to the complaint.

Appeal by the defendant, William A. Prendergast, as comptroller, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of April, 1913; granting an application for a peremptory writ of mandamus.

Appeal by the plaintiff, Queens-Nassau Mortgage Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 27th day of March, 1913, vacating and setting aside a judgment of foreclosure and sale.

<p>Public health — crime — practice of dentistry without license — information — demurrer.</p> <p>An information charging that defendant at divers times between certain dates, and particularly on specific dates mentioned at a place within a certain county, particularly described, “did unlawfully, wilfully and knowingly, not being then and there a dentist licensed to practice as such in this State, and not being then and there registered in the office of the clerk of this county, * * * hold himself out to the public as practicing dentistry, and did unlawfully, wilfully and knowingly practice dentistry,” is sufficient, and a demurrer thereto should be overruled.</p>

Appeals by the relator, the New York and Eockaway Beach' Eailway Company, from four final orders of • the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of February, 1913, reducing assessments against the relator for special franchises.

Appeal, by the defendant, Fannie Humphreys Gaffney, from part of a judgment of the Supreme Court in favor of the plaintiff and the defendant Frederic Humphreys, entered in the office of the clerk of the county of New York on the 15th day of November,' 1912, upon the report of a referee.

Appeal by the defendant, Pasquale Motello, from a judgment of the County Court of Orange county, rendered against him on the 18th day of January, 1912, convicting him of the crime of murder in the second degree.

<p>Appeal by the defendants, Daniel Rosenblath and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of March, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1911, denying defendants’ motion for a new trial.</p>

Appeal by the defendant, Jacob Kaiser, 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 3d day of March, 1913, 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 1st day of March, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William Heineman, from a judgment of the Court of G-eneral Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 31st day of October, 1910, convicting the defendant of the crime of manslaughter in the first degree, and also from two orders entered on the 3d day of November, 1910, respectively denying the defendant’s motions in arrest of judgment and for a new trial made upon the minutes.

Appeal by the defendant, the Fullerton-Weaver 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 19th day of February, 1913, affirming a judgment of the City Court of the city of New York, entered upon a verdict in favor of the plaintiffs, and an order denying its motion for a new trial, and also (as stated in the notice of appeal) from a judgment of affirmance entered in the office of…

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 24th day of November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of November, 1911, denying the defendant’s motion for a new trial made upen the minutes.

Appeal by the plaintiff, The Miami V alley G-as and Fuel 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 3d day of February, 1912, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, John 0. Hoenninger, as executor and trustee, etc., and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiifs, entered in the office of the clerk of the county of New York on the 10th day of March, 1913, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Selina Weeks, from part 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 26th day of February, 1913.

Appeal by plaintiff, Arthur E. Grannis, 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 28th 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 23d day of December, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

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

Appeal by the defendants, Georgie Annie McDonald, as executrix, etc., 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 14th day of February, 1912, upon the report of a referee.

<p>County of Bronx — chapter 548 of the Laws of 1912 construed—right of electors of Bronx county to elect justice of City Court of New York.</p> <p>Provisions of chapter 548 of the Laws of 1912 establishing the county of Bronx examined, and held, that the electors of said county are not entitled to participate in the nomination for and election of a justice of the City Court of New York to fill a vacancy required to be filled at the general election in 1913.</p> <p>Ingraham, P. J., and Clarke, J., dissented, with opinion.</p>

Appeal by the plaintiff, the Bankers Trust Company, as substituted trustee, etc., from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 10th day of February, 1913, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendants’ demurrers to the amended complaint.

Appeal by the defendants, Frank W. Blair and others, as receivers, 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 31st day of March, 1913, denying the defendants’ motion to set aside the service of the summons and complaint herein.

<p>Appeal by James E. Murphy, the judgment creditor, 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 16th day of April, 1913, reversing an order of the Special Term of the City Court of the City of New York denying a motion to vacate an order for the examination of Norman S. Walker, Jr., a third person, and granting the motion to vacate said order.</p>

Appeal by the defendants, The People of the State of New York, and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the.county of New York on the 25th day of February, 1913, confirming the report of a referee and directing the State Treasurer to pay to the petitioner, as the sole heir at law and next of kin of William A. Kinnilly, all moneys and other personal property turned in to the Treasurer of the…

Appeal by the defendant, Benjamin Adriance, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes in an action for criminal conversation.

Appeal by the plaintiff, Leo Schlesinger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of April, 1913, denying the plaintiff’s motion for the continuance of a temporary injunction order granted ex parte, and also from an order entered in said clerk’s office on the 14th day of May, 1913, denying a motion for a reargument.

<p>Master and servant — negligence — injury to employee while lowering plaster cast—evidence — expert testimony.</p> <p>In an action under the Employers’ Liability Act to recover for personal inj uries sustained by the plaintiff, a carpenter, while assisting in lowering an upright frame covered by a heavy plaster cast, it appeared that the defendant, because of the unusual size of the cast, had increased the number of men usually employed from ten to twenty-eight. Three men held the ends of ropes which were slackened as the cast was being lowered. Three others, supplied with poles, fastened them in the cornice in the upper frame of the exhibit, and two or three men were stationed with their hands against the base to prevent it from slipping. Planks were also placed beneath the east to prevent it from slipping upon the tile floor. The remaining twenty men were stationed to bear the weight of the cast as it was lowered. Two horses three and one-half feet high were placed beneath the cast to receive it. The cast having been lowered to an angle of from thirty-five to forty-five degrees suddenly skidded, and while the men still kept hold of it, continued slipping to such a degree that it passed the horses placed to receive it, and in falling to the ground struck the plaintiff and permanently injured him.</p> <p>Evidence examined, and held, that the method adopted for the lowering of the cast was such as any prudent man in the exercise of reasonable care would have adopted, and that the sole cause of the accident was the skidding, and that a judgment for plaintiff should be reversed and a new trial ordered.</p> <p>The handling of such structure was not an operation requiring the aid of expert testimony to explain it to the jury or to inform them of the various methods by which it could be performed.</p>

Separate appeals by the defendants, the New York Telephone Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the'county of New York on the 13th day of January, 1913, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 11th day of January, 1913, denying defendants’ respective motions for a new trial made upon the minutes.

Appeal by the defendant, Samuel Kohn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March, 1913, directing the county clerk óf the county of New York to tax costs in favor of the plaintiff.

<p>Appeal by the plaintiff, Ella M. Lester, as administratrix, etc., 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 21st day of July, 1911, setting aside a verdict for §4,000 and granting a new trial in a statutory action under section 1902 et seq. of the Code of Civil Procedure to recover for the death of plaintiff’s intestate.</p>

Appeal by the plaintiff, Percy Darrell Standing, 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 3d day of January, 1913, setting aside the verdict of a jury in plaintiff’s favor for $2,500 and granting defendant’s motion for a new trial.

Appeal by Harris D. Colt and another, as substituted trustees under the last will and testament of Richard S. Ely, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 1st day of May, 1913, appointing an appraiser in transfer tax proceedings.

Appeal by the defendant, The Terry 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 14th day of November, 1912, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 16th day of November, 1912, denying the defendant’s motion for a new trial.

Appeal by the defendants, Bernard Margulies and others, as executors, etc., of Nathan Sift, deceased, 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 May, 1913, granting plaintiff’s motion to strike out certain paragraphs of the amended answer as irrelevant and redundant and requiring defendants to make other paragraphs more definite and certain.

Appeal by the plaintiffs, Alfred J. Schwabe 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 7th day of May, 1913, extending defendant’s time to plead.

Appeal by the plaintiff, Maurice Deiohes, as receiver, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of May, 1913, directing that the issues raised by the defendant’s counterclaim and the plaintiff’s reply thereto be first tried at Special Term.

Appeal by the plaintiff, Maurice Deiches, as receiver, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of May, 1913, granting leave to the defendant to serve an amended answer, and directing that the other individuals composing the firm of Otto Heinze & Co. be brought into this action as additional parties defendant, and that the summons and complaint be amended…

Appeal by the plaintiff, Alfred H. Oaspary, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1913, denying a motion to dismiss the counterclaim interposed by defendant’s amended answer.

Appeal by the defendant, Eleanor G-. Cassebeer, 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 a motion to set aside an execution.

Appeal by the relator, the New York Mail and Newspaper Transportation Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of March, 1913, as denies to the relator costs and disbursements, and awards the same to the respondent.

Appeal by the defendant, August Todebush, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of February, 1913, resettling a prior order entered in said clerk’s office on the 6th day of February, 1913, reversing a judgment of the City Court of the City of New York in plaintiff’s favor, unless the plaintiff stipulated to reduce the said judgment to $2,000, in which case…

Appeal by the defendant, Illinois Surety 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 27th day of May, 1913, denying defendant’s motion to set aside a judgment for irregularity.

Appeal by Wolcott G-. Lane, as executor, etc., of Elizabeth D. G-. Lane, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 6th day of August, 1912, modifying an order entered therein on the 6th day of February, 1912, fixing and assessing a transfer tax.

Certiorari, in five separate proceedings, issued out of the Supreme Court and attested on the lYth day of July, 1912, directed to the Public Service Commission of the State of New York for the First District and others, commanding them to certify and return to the office of the clerk of the county of New York all and singular every proceeding had in issuing an order requiring the respective relators to equip certain cars with power brakes and geared hand brakes.

<p>Partnership — action against administratrix of partner upon firm notes — evidence — existence of partnership — insolvency of surviving partner — agreement to share profits.</p> <p>In an action upon promissory notes alleged to have been made in the name of a partnership of which defendant’s intestate was a member, the court dismissed the complaint on the merits, upon the ground that the evidence failed to establish that defendant’s intestate was a partner, and that if it did, the action could not be sustained because it did not appear that the surviving partner was insolvent.</p> <p>Evidence examined, and held, sufficient to establish prima fade the existence of the partnership of which defendant’s intestate was a member, and the insolvency of the surviving partner, and that the judgment dismissing the complaint upon the merits should be reversed and a new trial granted.</p> <p>An agreement for sharing in the profits of a business is sufficient to constitute a partnership as to third persons.</p>

Appeal by the defendant, The American Exchange National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of July, 1912, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Max Miller, 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 10th day of June, 1912, upon the decision of the court after a trial at the New York Special Term, and also, as stated in the notice of appeal, from the refusal of the court to make findings of fact and conclusions of law as proposed by the defendant.

Appeal by the defendants, Oliver L. Gardner 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 3d day of March, 1913, as resettled by an order entered in said clerk’s office on the 8th day of March, 1913, denying the defendants’ motion to require the complaint to be amended so as to separately state and number the causes of action therein.

Appeal by the defendant, The Security Bank 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 11th day of April, 1913, denying defendant’s motion for judgment on the pleadings.

Appeal by the defendant, Barnet Zucker, from an order of filiation entered against him by the Court of Special Sessions of the City of New York on the 23d day of January, 1913.

Appeal by the defendant, American Specialty Tailoring 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, as resettled by an order entered in said clerk’s office on the 19th day of April, 1913, denying defendant’s motion to vacate an order for the examination of one of its officers before trial, and directing the production of books and papers.

Appeal by relators, The Third Avenue Bailroad Company and James N. Wallace and others, from a final order of the Supremo 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 Hay, 1913, confirming the assessment of the special franchises of the Third Avenue Bailroad Company, made by the State Board of Tax Commissioners for the year 1910, and dismissing writs of certiorari theretofore obtained by them to…

Appeal by the relator, The Forty-second Street, Manhattan-ville and St. Nicholas Avenue Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of May, 1913, confirming an assessment against special franchises of the relator for the year 1910 at $4,206,000, and dismissing the writ of certiorari.

<p>Appeal by the relator, the Union Railway Company of New York City, 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 May, 1913, confirming special franchise assessments for the year 1910, and dismissing a writ of certiorari.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment and order of the Court of General Sessions of the Peace in and for the county of New York, entered upon the minutes of said court on the 14th day of October, 1912, allowing demurrers and amended demurrers interposed by the defendant Nicholas Arnstein to two indictments against him and others, charging the crime of grand larceny in the first degree.

Appeal by John Wynne from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of May, 1912, as confirms the report of the commissioners of appraisal herein as to damage parcel No. 17, and overrules his objections thereto.

<p>Executor and administrator—reference upon an accounting — evidence — surcharge against executor — when surcharge should be charged back against heirs — expenses of reference — commissions and costs of executor — decree modified.</p> <p>Some twenty objections having been filed upon an accounting by an executor, the matter was sent to a referee at a large expense in fees, and as the result of which only three items of surcharge upon the debit side of the account were sustained. The referee deducted from the credit side of the account items aggregating §3,314.78, of which $3,093.80 was the amount of a credit erroneously appearing upon both the executor’s and trustee’s accounting; §350 was a fee paid his attorneys after the period covered by his account; $660.98 was for a discrepancy in coal bills. The executor appeals from the three items surcharged.</p> <p>Evidence examined, and held, that the first and second surcharges for the value of a horse and for the difference between the total amount of decedent’s deposit and the portion thereof which the executor claimed to be the property of the decedent was erroneous and should be set aside;</p> <p>That the surcharge for rent which should have been collected for prem. ises which had been , occupied by certain of the heirs under an agreement between them whereby they released the executor from liability arising thereunder, was proper, but the amount thereof should be charged back against the hens who assumed to use the premises and release the executor from liability;</p> <p>That the decree appealed from should be modified by striking out the first two surcharges, by charging the expenses of the reference and the costs of the executor to the estate, by striking out the provision that the executor has grossly mismanaged the estate, and by allowing him his commissions and costs upon the accounting.</p>

Appeal by the judgment debtor, James T. Haverty’s Stables, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of May, 1913, denying the judgment debtor’s motion to vacate an order for his examination in supplementary proceedings.

Appeal by the petitioner, Joscelyn Stable' 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 28th day of April, 1913, denying a motion for a writ of mandamus.

Appeal by the defendants, George D. Prevost 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, denying the defendants’ motion for an order directing the delivery to them of certain securities deposited in the United States Trust Company, by order of the court.

<p>Sales — breach of warranty — failure of purchaser to reject goods upon discovery of defects.</p> <p>Where, in an action by the assignee of an importer to recover damages for a breach of warranty, it appears that the assignor had made a contract for the purchase and shipment of a certain quantity of black-eyed beans, the quality of which was to correspond to the general average of the year, and that when such beans arrived the assignor examined them and, although finding that they were of very bad quality, shipped them to customers who refused to receive them, the complaint should be dismissed.</p> <p>Where both buyer and seller are able to judge of the character and quality of goods by inspection, the right of the buyer to recover damages for breach of contract does not survive acceptance, after a reasonable opportunity for inspection.</p>

Cross writs of certiorari issued out of the Supreme Court and attested on the 21st day of July, 1911, and the 5th day of October, 1911, respectively, directed to Joseph P. Hennessy and others, constituting the board of assessors of the city of New York, 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 awarding damages to Jordan L. Mott in consequence of the change of grade of Third avenue…

Appeal by the defendant, Hudson and Manhattan Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of May, 1912, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 19th day of April, 1912, denying defendant’s motion for a new trial.

<p>Guaranty and surety—landlord and tenant—agreement extending lease does not release guarantor of original lease—recovery of rents due prior to merger of lease in fee.</p> <p>Under a submission on an agreed statement of facts, it appeared that plaintiff’s testator, claiming rents due, leased premises for a term of years at a yearly rental, payable monthly, in advance, together with taxes, water charges and insurance; that on the same day the defendant guaranteed in writing the performance of said lease by the lessees; that thereafter, but prior to the expiration of the lease, an extension thereof was made in writing for a certain number of years from the expiration thereof, which the defendant did not guarantee; that thereafter plaim tiff’s testator took a mortgage on the lease, which was thereafter foreclosed by the plaintiff, who bought in the leasehold at the referee’s sale, and that the amounts claimed by the plaintiff became due before entry of judgment in foreclosure.</p> <p>Held, that the agreement extending the lease in no way affected the original lease, and did not release the defendant as surety;</p> <p>That although the leasehold was merged in the fee by plaintiff’s purchase, it did not affect plaintiff’s claim which matured prior thereto; That a judgment in favor of the plaintiff should be directed for the full amount claimed.</p>

Cross oertioraris issued out of the Supreme Court and attested on the 10th day of April, 1913, and the 22d day of April, 1913, respectively, directed to William D. Dickey and others, commissioners, etc., 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 respect to a claim of William Waldorf Astor for damages caused by a change of grade.

Appeal by the defendant, Joseph De Nigris, from a judgment of the Court of General Sessions of the Peace of the county of New York, rendered against him on the 3d day of September, 1912, convicting him of the crime of rape in the second degree.

Appeal by the defendant, J. Edward Lambie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of April, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 23d day of April, 1912, denying defendant’s motion for a new trial.

Appeal by the plaintiff, Harlow C. Curtiss, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 17th day of July, 1912, upon the verdict of a jury rendered by direction of the court on motion of the defendant, plaintiff also having moved for the direction of a verdict for the full amount claimed.

<p>Appeal by the defendant, City of Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of October, 1912, upon the verdict of a jury for $14,000, and also from an order entered in said clerk’s office on the 22d day of August, 1912, denying the defendant City of Buffalo’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the Lehigh Valley 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 Ontario on the 10th day of October, 1912, upon the verdict of a jury for $10,916.08, and also from an order entered in said office on the 15th day of October, 1912, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Margaret E. Cook, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of' Chautauqua on the 19th day of April, 1913, 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 same day, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Negligence — death of infant struck by automobile while crossing city street — evidence — speed of automobile — charge — care required of infant.</p> <p>An action to recover for the death of plaintiff’s intestate, a boy about ten years of age, who while crossing a city street in the evening was struck and fatally injured by an automobile in which the defendant was riding with his chauffeur who was driving the car.</p> <p>Evidence examined, and held, that although there was no direct testimony as to an estimate of the speed of the car, there was some evidence of facts from which as an inference the jury might under proper instructions have determined that the car was running at a greater speed than four miles per hour, and it was error for the trial court to instruct the jury that there was no evidence warranting them in finding that the speed exceeded said rate;</p> <p>That although the court had properly charged that the intestate should be held to only that degree of care and caution for his own safety which a reasonably careful and cautious boy of that age is accustomed to exercise, it was error to charge subsequently that the burden was upon the plaintiff to show that the intestate was incapable of taking care of himself in the street in order to warrant the jury in finding that he was not guilty of contributory negligence;</p> <p>That a judgment in favor of the defendant should be reversed and a new trial granted.</p>

Appeal by the defendants, Arthur E. Stilwell 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 7th day of March, 1913, pursuant to an order made at the New York Special Term, with notice of intention to bring up for review on such appeal the said order, entered in said clerk’s office on the 26th day of February, 1913, granting the plaintiff’s motion for judgment on the pleadings.

Appeal by the plaintiff, William. B. HacFarlane, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 20th day of February, 1913, upon the decision of the court after a trial at the Erie Special Term dismissing the complaint upon the merits. Clark H. Hammond, Corporation Counsel [George E. Pierce of counsel], for the respondents, city of Buffalo and others.

Appeal by the relator, Leo Borowiak, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 28th day of January, 1913, dismissing a writ of habeas corpus, and remanding relator to custody.

Appeal by the plaintiff, Maria A. Fatta, 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 5th day of September, 1912, upon the decision of the court after a trial at the Erie Special Term.

Reargument of an appeal by the defendant, Carl W. Storandt, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 21st day of August, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James Foley, from an order and 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, reversing a judgment of the City Court of the City of New York in plaintiff’s favor.

Appeal by John Z. Lowe, Jr., and others, as 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 28th day of April, 1913, as resettled on the petition of the respondent, referring the issues to a referee to take proof and report thereon.

Appeal by the defendants, Crosstown Street Railway Company of Buffalo 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 Erie on the 20th day of February, 1913, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial.

Appeal by the defendant from a judgment of the Supreme Court, rendered against him on the 10th day of May, 1912, in the county of Albany, convicting him of the crime of manslaughter in the first degree.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 7th day of October, 1912, directing the payment to the defendant Rosa W. Straus, individually, of certain money deposited in court to abide the event of this action.</p>

<p>Attorney — admission to practice.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 12th day of July, 1912, on a verdict, and also from an order entered on the 29th day of July, 1912, denying a motion for new trial.</p>

<p>Appeal from order denying motion for resettlement of findings and judgment, and from order denying motion for reargument.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 12th day of April, 1913, granting a motion for a bill of particulars and for a separate trial of issues.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 3d day of February, 1913, as resettled by an order entered on the 13th day of March, 1913, denying a motion for leave to amend the complaint.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 18th day of October, 1913, on a verdict and also from an order entered on the 31st day of October, 1913, 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 13th day of March, 1913, denying a motion for the appointment of a guardian ad litem for the defendant Stephani, and also from an order entered on the 7th day of April, 1913, denying a motion for a reargument.</p>

<p>Attorney disbarred — conviction of crime.</p>

<p>Libel — sufficiency of complaint.</p>

Appeal by the defendant, Frances A. Harris, 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 May, 1912, upon the decision of the court rendered after a trial at the New York Special Term. Judgment affirmed, with costs, on opinion of Giegerich, J. Present— Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

<p>Appeal from an order of the Supreme Court denying the application of the relator for a peremptory writ of mandamus commanding the defendant to issue a warrant upon the State Treasurer for his salary as Commissioner of Labor of the State.</p>

<p>Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 18th day of December, 1912, in favor of the plaintiff, and from an order bearing date the 13th day of January, 1913, and entered in said clerk’s office, denying its motion for a new trial.</p>

Appeal by the defendant from an order of the Supreme Court, entered in the office of the clerk of the county of Kings on the 13th day of February, 1913, granting plaintiff’s motion for a new trial.

Appeals by Sigmund Stern and others from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Putnam on the 8th day of May, 1913.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 35th day of July, 1913, in favor of the plaintiff, and from an order entered in said clerk’s office on the 33d day of July, 1913, denying its motion for a new trial.

Appeal by the plaintiffs, George A. Hearn and others, as copartners, etc., from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 33d day of April, 1911, denying plaintiffs’ motion for judgment on the pleadings. Order affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice Kelby at Special Term (-Reported in 80 Mise.