Volume 158 — New York Appellate Division Reports

Appeal by the plaintiff, William H. Childs, 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 14th day of February, 1913, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Neponset National Bank, 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 12th day of August, 1912, upon the verdict of a jury dismissing the complaint rendered by direction of the court, certain questions having been first submitted to the jury and a special verdict having been rendered, and also from an order entered in said clerk’s office on the same day granting to…

Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 27th day of January, 1913, upon the verdict of a jury for $3,100, and also from an order entered in said clerk’s office on the 28th day of January, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of January, 1913, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial.

Appeal by the defendant, Henrek P. Skaarup, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th 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 16th day of April, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Thomas Howatt and the corespondent, Martha A. Baeder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 17th day of February, 1913, upon an interlocutory judgment rendered upon the decision of the court after a trial at the Ulster Special Term. The judgment appealed from granted plaintiff a divorce.

Appeal by the defendants, John J. Halligan, individually and as executor and trustee, etc., 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 Eensselaer on the 16th day of December, 1912, upon the decision of the court, certain questions having been submitted to the jury upon a trial before the court and jury at the Eensselaer Trial Term.

<p>Appeal by the defendant, James Doyle, from a judgment of the County Court of Otsego county, rendered against him on the 4th day of October, 1912, convicting him of the crime of rape in the first degree.</p>

Appeal by the City of New York from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Ulster on the 19th day of April, 1912, confirming the report and awards of commissioners of appraisal, and also, as stated in the notice of appeal, from the report and awards of the commissioners of appraisal so far as affects parcel No. 643.

<p>Appeal by the relators, Albert Fluokiger and another, from, an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the 31st day of March, 1913, denying the petitioners’ application to give notice of a submission of a liquor tax question at a biennial town meeting on the 11th day of February, 1913.</p>

Appeal by the defendant, Hanna M. Manning, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 18th day of July, 1912, upon the decision of the court after a trial at the Tioga Trial Term, the court having taken the case from the jury at the close of the evidence.

Appeal by the plaintiff, Martin Silberkraus, from a judgment of the County Court of Schenectady county in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Joseph Walker, Jr., and another, as executors and trustees, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9 th day of May, 1913, denying plaintiff’s motion to dismiss defendants’ appeal from a judgment, and denying defendants’ motion to vacate the judgment and set aside the report of the referee, and declaring the case on appeal settled, and…

• Appeal by the defendant, Arthur Newell, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 24th day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. ' .

Appeal by the plaintiff, the Sturges & Bum Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chenango on the 6th day of January, 1913, dismissing the complaint and awarding defendant damages upon its counterclaim, upon the decision of the court after a trial before the court; a jury having been waived.

<p>"Will — execution — incompetency of testator — fraud and undue influence — evidence — publication of holographic will.</p> <p>A testator wrote his will on a sheet of letter paper of his club, and after signing it procured a member of the elub to sign as a witness in his presence after declaring the instrument to be his last will and testament. The steward of the club signed the instrument later in the day at the request of the testator. On the following day the testator sent the will with a letter to his housekeeper, the sole legatee therein named. The testator died unmarried about five months after the execution of the will, and his father filed objections to probate upon the grounds that the will was improperly executed, that its execution was obtained by fraud and undue influence and that the testator was of unsound mind and memory.</p> <p>Held, on all the evidence, that the objections were not sustained, and that the will was properly admitted to probate.</p> <p>The rule in respect to holographic wills as to the manner and method of publication is not so strict as where the will is drawn and "executed under the direction of an experienced scrivener.</p>

<p>Appeal by the" relator, Frank B. Lown, 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 9th day of December, 1912, denying a motion for a perémptory writ of mandamus.</p>

<p>Conversion — res adjudicata — prior judgment in favor of plaintiff for breach of contract of employment.</p> <p>A judgment in favor of the plaintiff in an action in the Supreme Court to recover damages by reason of the unlawful termination of his contract with the defendant, under which he was to have his house rent, garden and fire wood as part of his compensation, is res adjudicata and a bar to a subsequent action brought in Justice’s Court for conversion of stove wood in the possession of the plaintiff and stored upon the premises of the defendant, and also of a certain quantity of growing potatoes.</p> <p>Appeal by the plaintiff, Frederick Spragg, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 25th day of November, 1912, upon the dismissal of the complaint by direction of the court at the opening of the case, both parties having stipulated that a judgment roll of a former action between the same parties tried in the Supreme Court.be admitted in evidence for the purpose of argument of the motion for a nonsuit.</p>

Appeal by the defendant, Emily M. Keenan, as executrix, 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 Washington on the 6 th day of February, 1913, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, Vedder 0. Scott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 4th day of November, 1912, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the same day, one denying defendant’s motion to dismiss the complaint upon the ground that plaintiff had elected his remedy, the other denying his motion for a new trial made upon the…

<p>Appeal by the plaintiff, George D. Fish,- from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 11th day of April, 1913, overruling plaintiff’s demurrer to the second and third separate defenses set forth in the answer.</p>

<p>Landlord and tenant —■ right of tenant to remove stacked hay after expiration of lease — damage to meadow — conversion.</p> <p>Where the lessee of a farm leaves it at the expiration of his term in February, without removing a small quantity of hay stacked in a meadow, because of the bad condition of the roads, a subsequent tenant of the farm may prevent the removal of the hay during the following June when drawing the same would seriously injure his meadow, and the former tenant does not offer to pay for the damage caused.</p> <p>In an action by such former tenant against his successor to recover the value of hay remaining on the farm, the complaint was properly dismissed and the defendant should not be held liable for conversion.</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 Madison on the 26th day of May, 1911, upon the verdict of a jury for §7,000, and also from an order entered in said clerk’s office on the 5 th day of June, 1911, denying defendant’s motion for a new trial made upon the minutes.

<p>Tax—franchise tax—dividend — capital employed “ during the preceding year ” — Tax Law, section 182, construed.</p> <p>Upon certiorari to review the proceedings of the State Comptroller in determining a franchise tax, it appeared that the relator, immediately after its incorporation, with an authorized capital stock of $500,000, only $300,000 of which was ever issued, purchased for the sum of $200,000 the good will, business and lease of another company, and at once engaged in the prosecution of such business; that the remaining $100,000 received from the sale of its capital stock was and still is invested in dividend-paying securities; that the rental value of premises occupied by the relator having increased in value, a suit was brought against it for the cancellation of the lease, which was settled about May 1, 1910, by the relator surrendering the lease and the payment to it of $1,050,000 and the giving of a new lease; that May 3, 1910, the relator divided pro rata among the holders of its $300,000 of capital stock said $1,050,000, and in July, 1910, reduced its capital stock to $100,000, and that the State Comptroller in fixing the amount of the franchise tax, under section 182 of the Tax Law, deducted from the said $1,050,000 the sum of $200,000 as representing the invested capital of the relator, and treated the division of the $1,050,000 as a division of capital or assets, and treated the balance of $850,000, together with the sum of $38,250, the amount of prior dividends, as the aggregate of the dividends made or declared by the relator during the year ending October 31, 1910, and assessed the same as the dividends paid upon $100,000 of capital stock.</p> <p>Held, that the said $850,000 constituted a dividend made or declared within the meaning of section 182 of the Tax Law;</p> <p>That the Comptroller erred in assessing the tax upon the sum of $100,000 as par value of the capital stock during the year ending October 31, 1910. Such tax should have been computed upon the basis of $300,000.</p> <p>The provision of section 182 of the Tax Law, requiring payment by a corporation of an annual tax “to be computed upon the basis of the amount of its capital stock employed during the preceding year within this State” should not be construed as requiring all such stock to be employed during the entire year.</p>

<p>Eminent domain — condemnation for additional water supply for city of New York — allowance of counsel fees upon awards for business damages.</p> <p>Under the statute authorizing the city of New York to condemn lands for an additional water supply, the court has no power to make an allowance of counsel fees upon awards secured under the provisions of the statute for business damages or damages to land not actually taken growing out of the taking of lands for water supply purposes.</p> <p>Smith, P. J., and Howard, J., dissented.</p>

Appeal by Fred Wege from a decision of the commissioner of public safety of the city of Schenectady, made on the 28th day of October, 1912, dismissing Fred Wege from the police department after the hearing of charges.

Appeal by the defendants,. Edward E. Hutton 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 Rensselaer on the 23d day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of October, 1912, denying the defendants’ motion for a new trial, and also from an order entered in said clerk’s office on the 23d day of November, 1912, vacating a…

Appeal by the defendant, The Sewer, Water and Street Commission of Saratoga Springs, M. Y., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 17th day of March, 1913, sustaining plaintiff’s demurrer to one of the special defenses set up in the answer.

<p>Appeal by the defendant, Henry Richter, 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 21st day of December, 1912, upon the decision of the court after a trial before the court, a jury having been waived.</p>

Appeal by the defendant, Frederick F.. Proctor, 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 3d day of February, 1913, for $2,300, upon the report of a referee.

Appeal by the plaintiff, The Hudson River Ice Company, from an order of the Supreme Court, made at the Greene County Special Term and entered in the office of, the clerk of the county of Greene on the 19th day of February, 1913, denying a motion to vacate a prior order, which vacated ex parte an injunction order obtained ex parte by the-plaintiff.

Appeal by the defendant, William Shaw, from a judgment of the County Court of Chemung county, rendered against him on the 3d day of June, 1912, convicting him of the crime of rape in the second degree upon the verdict of a jury, and also from an order made on the same day denying the defendant’s motion for a new trial.

<p>Appeal by the defendant, Leander B. Faber, individually and as receiver, etc., from an order of the Supreme Court, made at the Kings County Special Term, dated the 25th day of June, 1913, granting an injunction pendente lite restraining the sale of 393 shares of Kings County Lighting Company stock.</p>

Appeal by the defendant, Alfred E. Steers, president, 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 5tb. day of April, 1913, granting relator’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, Judson D. Tiffany, 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 11th day of April, 1913, dismissing his complaint upon the decision of the court after a trial before the court without a jury.

<p>Malicious prosecution—evidence — probable cause.</p> <p>In an action for malicious prosecution it appeared that the plaintiff dropped her ticket and five cents in the box in defendant’s station; that she requested the agent to pay her that sum; that he explained he could not do so but would give her a receipt for the money presentable at the main office; that she took five cents from the window and was pursued by the agent and seized and taken by a police officer before a magistrate, by whom she was held for trial and later found not guilty.</p> <p>Evidence examined,' and held, to establish probable cause, and that a judgment in favor of the plaintiff should be reversed.</p>

Appeal by the defendant, The City and County Contract Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk' of the county of Westchester on the 17th day of February, 1913, upon the verdict of a jury.

Appeal by the plaintiff, Mary Flynn, from a judgment of the Suprem'e Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 10th day of March, 1913, upon a dismissal of the complaint at the close of plaintiff’s case upon a trial before the court and jury at the Nassau Trial Term.

Appeal by the plaintiff, Henry T. Goodwin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 22d day of April, 1913, dismissing his complaint upon the decision of the court after a trial at the Rockland Special Term.

Appeal by the defendant, New York, New Haven and Hartford 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 Dutchess on the 11th day of December, 1912, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, New York Inter-Urban Water 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 6th day of May, 1913, overruling its demurrer to the complaint.</p>

Appeal by the plaintiff, James N. Butterly, 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 December, 1912, denying plaintiff’s motion for a trial by jury of one of the issues.

Appeal by the defendant, Augustus D. Kelsey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 5th day of March, 1913, upon the decision of the court after a trial at the Nassau Special Term.

Appeal by the defendant, Vincenzo Buccufurri, from a judgment of the Supreme Court, rendered against him on April 1, 1911, convicting him of the crime of manslaughter in the first degree.

<p>Appeal by the plaintiff, William N. Richie, frqm 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 November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1912, denying plaintiff’s motion for a new trial.</p>

Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 11th day of February, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 10th day of February, 1913, denying defendant’s' motion for a new trial made upon the minutes.

Appeal by the plaintiff, Adelaide M. Anderson, from a judgment of the County Court of Sullivan county in favor of the defendant, entered in the office of the clerk of said county on the 18th day of May, 1912, upon the verdict of a jury dismissing plaintiff’s complaint, and also from an order entered in said clerk’s office on the 17th day of June, 1912, denying plaintiff’s motion for a new trial.

Appeal by Eleanor I. Stewart, claimant, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of t Ulster on the 6th day of July, 1911, confirming the award of the commissioners for property appropriated for the Ashokan reservoir.

<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 plaintiff from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 19th day of February, 1913, upon the dismissal of the complaint at the close of plaintiff’s case upon a trial before the court and a jury at the Richmond Trial Term.

Appeal by the defendant, Harry B. Silver, from a judgment of the Court of Special Sessions of the City of New York, borough of Brooklyn, Part 2, rendered against him on the 2d day of January, 1913, convicting him of a violation of section 203 of the Public Health Law (Consol. Laws, chap. 45; Laws of 1909, chap. 49).

<p>Appeal by the defendant, The Board of Education of the City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of May, 1918, vacating and setting aside a judgment previously entered herein and setting the case down for trial.</p>

<p>Appeal by Edwin H. Brown, claimant, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 16th day of June, 1911, confirming the report of commissioners of appraisal, and also from the report of said commissioners.</p>

Appeal by the defendant, Leverett F. Crumb, 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 11th day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial.

Appeal by the plaintiff, Warburton Avenue Baptist Church, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 15th day of May, 1913, dismissing the complaint upon the decision of the court after a trial at the Westchester Special Term. The judgment granted the administrator judgment for $1,270.43 against the Yonkers Savings Bank.

<p>Foreclosure — infant defendant — failure of order of reference to contain direction to take proof, as required toy rule 60 of the General Rules of Practice — order appointing referee to compute nunc pro tunc — marketable title — compliance with intent and spirit of statute—correction of mistakes nunc pro tunc.</p> <p>Where, in a suit for the foreclosure of a mortgage in which two infant defendants appear by their guardian ad litem, the order of reference to compute the amount due did not contain a direction to the referee to take proof of the facts and "circumstances set forth in'the complaint, as required by rule 60 of the General Rules of Practice, but the referee did take such proof and file the evidence with his report, the same as if the order had conformed to the requirements of the rule, and the report was confirmed, and judgment of foreclosure and sale entered, and thereafter an order was made and entered appointing a referee to compute nunc pro tunc, and inserting therein the direction required by rule 60, title acquired under the foreclosure sale is marketable.</p> <p>If the intent and spirit of a statute are carried out, the words or methods used, so long as not in direct contravention of statute or rule of law or public policy, make but slight difference, and mistakes therein may be corrected nunc pro tunc.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment and order of the County Court of Kings county, entered in the office of the clerk of said county on the 30th day of April, 1913, sustaining defendant’s demurrer to an indictment charging the respondent with maintaining and suffering a place to be used for gambling, and with being a common gambler. The indictment contains three counts.

Appeal by the defendant, Byron E. Widger, 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 30th day of September, 1912, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 24th day of December, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John W. McArthur, from a judgment of the County Court of Delaware county in favor of the plaintiff, entered in the office of the clerk of said county on the 30th day of December, 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.

Appeal by the tenant, Albert Kusper, from a judgment of the County Court of Chemung county in favor of the landlord, entered in the office of the clerk of said county on the 9th day of July, 1912, reversing an order and judgment of the City Court of Elmira in favor of the plaintiff, and also an appeal from the order of said County Court upon which said judgment was entered.

<p>Certiorari issued out of the Supreme Court and attested on the 18th day of February, 1913, directed to the Public Service Commission for the Second District of the State of New York and the members thereof, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in permitting the Westchester Street Railroad Company to issue $434,000 of stock, and denying its application for a larger issue.</p>

Appeal by the plaintiff, the Town of Queensbury, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 26th day of February, 1912, upon the decision of the court after a trial at the Washington Special Term.

Appeal by J ames J. Redmond, taxpayer, 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 9th day of April, 1913.

Appeal by the plaintiffs, Jessie Wallace and others, from, a judgment of the Supreme Court, in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 9th day of October, 1912, upon the decision of the court after a trial at the Westchester Special Term dismissing the complaint in an action for specific performance.

Appeal by the defendant, The Bronx National Bank of New York, N. Y., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th day of December, 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.

Appeal by the defendant, James 0. Fargo, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 6th day of January, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 9th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Morris Jacobs, from a judgment of the County Court of Kings county, rendered against him on the 16th day of December, 1912, convicting him of burglary in the third degree and grand larceny in the first degree as a second offense.

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 17th day of December, 1912, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 13th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Grace F. Hicks, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 25th day of June, 1912, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the Saratoga Trial T'erm.

<p>Decedent’s estate — action upon promissory notes — failure to show lack of consideration — evidence — surcharging accounts of executrix — failure of defendant to make demand.</p> <p>Action by an executrix upon negotiable promissory notes made by the defendant to the order of the plaintiff’s testator, the defense being that the only consideration for the notes was an agreement by the testator to rent his farm to the maker, but that the testator died before the term began and that the maker never had possession of the premises, constituting a failure of consideration. Evidence examined, and held, that a judgment for the defendant should be reversed and a new trial granted.</p> <p>In such action it is error to admit evidence that the accounts of the executrix were surcharged by the surrogate in a certain amount and that she was required to invest certain funds and deposit securities with the county treasurer, etc.</p> <p>So, too, it is error to refuse to allow defendant’s wife to reply to a question asking whether she ever demanded possession of the farm from the executrix.</p>

Appeal by the defendant, Hoffman-Youmans Paper Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 11th day of December, 1912, upon the report of a referee appointed to hear and determine the issues.

Appeal by the City of New York from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 20th day of January, 1913, dismissing the writ of certiorari herein.

<p>Ejectment — when plaintiff estopped from asserting title.</p> <p>Where, in an action for ejectment, it appears that the plaintiff and owner who conveyed to defendant’s grantor, more than twenty years before such conveyance, entered into an agreement for the construction of a fence between them, which constituted a practical division, and that there was some talk between them that there might be a subsequent adjustment of it, that plaintiff, knowing of the transfer of the adjoining property to defendant’s grantor, made no effort to assert his alleged rights, and that the defendant purchased such adjoining property without notice of the arrangement between the plaintiff and the prior owner for a subsequent adjustment of the boundary, the plaintiff is estopped from asserting title as against the defendant, and a judgment in favor of the latter should be affirmed.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 8th day of March, 1913, dismissing the complaint upon the decision of the court after a trial at the Albany Trial and Special Term.

Appeal by the plaintiff, Thomas O’Connor, as executor, etc., 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 21st day of June, 1912, upon the decision of the court after a trial before the court at the Eensselaer Special Term.

Appeal by the plaintiff, Celia Murphy, from an order of the Supreme Court, made at the Washington Trial Term and entered in the office of the clerk of the county of Washington on the 8th day of February, 1913, granting defendant’s motion for a dismissal of the complaint made at the close of plaintiff’s case and renewed at the close of the whole case; also from the judgment entered in said clerk’s office on the 15th day of February, 1913, dismissing the complaint upon the…

Appeal by Otis H. Deck, contestant, from a decree of the Surrogate’s Court of Otsego county, entered in said Surrogate’s Court on the 5th 'day of February, 1912, admitting the proposed will to probate and decreeing that the testatrix was of sound mind and memory and free from undue influence.

<p>Appeal by Otis H. Deck, contestant, from a decree of the Surrogate’s Court of Otsego county, entered in said Surrogate’s Court on the 5th 'day of February, 1912, admitting the proposed will to probate and decreeing that the testatrix was of sound mind and memory and free from undue influence.</p>

Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 23d day of October, 1912, upon the decision of the court, the case having been taken from the jury at the close of the trial on motion of the defendant.

Appeal by the plaintiff, Lizzie M. 3?. Spallholz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 18th day of October, 1912, upon the decision of the court after a trial before the court without a jury at the Washington Trial Term.

Appeal by the defendant, the Hudson Valley Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 17th day of July, 1912, upon the verdict of a jury for $23,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Thomas C. Platt, as president, etc., and others, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk . of the county of Montgomery on the 20th day of June, 1912, as adjudges that the proper officers of the United States Express Company give due notice and hold a meeting of the shareholders of said company for the purpose of electing seven directors and that plaintiff recover his costs.

Appeals by the Long Sault Development Company and the relator, Gr. Wilson Ball, from two orders of the Supreme Court, one made at the Columbia Special Term, the other at the Albany Special Term, and entered respectively in the office of the clerk of the county of Albany on the 20th day of February, 1913, and the 8th day of March, 1913. The orders denied the application of the Long Sault Development Company and of the relator, Gr.

Appeal by the defendants, the Queensborough Gas and Electric Light 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 Nassau on the 11th day of December, 1912, upon the verdict of a jury for $12,500, and also from two orders entered in said clerk’s office on the 11th and 18th days of December, 1912, respectively, denying separate motions of the defendants for a new trial made upon the…

<p>Contempt—failure to fill in excavation in compliance with judgment — punishment.</p> <p>Where in a proceeding to punish a defendant for civil contempt in failing to comply with the provisions of a judgment requiring him to fill an excavation made upon his land so as to furnish lateral support to a public street, it appears that it is within the power of the defendant to comply with the said provisions, but there is no satisfactory evidence of actual present loss or injury to the plaintiff, an order requiring the defendant to pay a fine on account of loss or to be imprisoned until he complies with the judgment should be modified by striking out the provision for a fine.</p>

Appeal by the plaintiff, Florence E. Huscher, as administratrix, etc., from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 27th day of January, 1913, setting aside the verdict of a jury in plaintiff’s favor herein in the sum of $14,000, and granting defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Procter and G-amble Manufacturing Company, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 22d day of July, 1912, upon the decision of the court after a trial at the Richmond Special Term.

Appeal by the plaintiff, Mabel Cohen, 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 11th day of February, 1913, upon a dismissal of the complaint by the court at the opening upon a trial before the court and jury at the Queens Comity Trial Term.

<p>Master and servant — negligence — injury to employee by unguarded shaft — failure properly to guard machinery as required by Labor Law — evidence—burden of proof.</p> <p>Where an employee in an action to recover for personal injuries caused by having his hand caught between the shafting and a piece of metal on his employer’s machine alleges that the defendant failed properly to guard the shafting at the point where the injury was caused, the burden of showing that it is impracticable to guard the machine as required by section 81 of the Labor Law is upon the defendant. It is reversible error to refuse to allow the defendant to ask its experienced manager if it was customary to guard such a machine as the one in question, or if there was any way by which it could have been guarded and the work properly carried on.</p>

Appeal by the plaintiff, Ellen Eckersley, as administratrix, 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 22d day of January, 1913, denying her petition for an order directing the payment to her of certain moneys held by the State Treasurer.

Appeal by Avasta Hughes, as administratrix, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 28th day of March, 1913, denying her motion to be substituted as plaintiff in this action, and for leave to make and serve an amended complaint as administratrix.

Appeal by the defendant, National Lead Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of November, 1912, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 4th day of December, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Edison Electric Illuminating Company of Brooklyn, 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 March, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 6th day of March, 1913, denying defendant’s motion for a new trial made upon the minutes.

Reargument of an appeal by Richard E. Fowler and others from parts of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said surrogate on the 6th day of December, 1912. (See 157 App. Div. 893.)

Appeal by the defendant, the Village of Briarcliff Manor, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8th day of April, 1912, upon the verdict of a jury, and also from an order made on the trial of the action allowing the plaintiff to amend his complaint, and also from an order made at the same time denying defendant’s motion for leave to amend its second separate defense.

Appeal by the defendant, Simpson, Hendee & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 16th day of February, 1912, upon the verdict of a jury for $1,500, and also from an order entered’in said clerk’s office on the 12th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Attorney at law disbarred.</p> <p>Attorney at law disbarred for allowing his client falsely to testify that he could not produce a witness in bastardy proceedings, and for stating to the court that judgment would go for his client if said witness could be produced, he knowing that the witness was available. The respondent had formerly been suspended from practice for two years.</p>

<p>Charges presented by the Association of the Bar of the City of New York against the respondent for professional misconduct.</p>

<p>Charges presented by the Association of the Bar of the City of New York against the respondent for professional misconduct.</p>

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

<p>Attorney at law suspended.</p> <p>Attorney at law suspended from practice for one year for misappropriating a sum of money collected for a client and also a mortgage assigned to him for collection. The full penalty of disbarment is not inflicted because of the youth and inexperience of the respondent.</p>

Appeal by the judgment creditor, plaintiff, Ernest B. Denison, from an order of a justice of the Supreme Court, entered in the office of the clerk of the county of Kings on the 21st day of May, 1913, vacating an order theretofore made for the examination of the Home Trust Company of New York by its president as a third party in proceedings supplementary to execution,

Appeal by the defendants, Rose D. Schaefer, individually and as executrix, etc., 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 Queens on the 8th day of February, 1913, adjudging a certain paper which had been admitted to probate • as the last will and testament of Elizabeth Rintelen, deceased, to be not in truth and fact the last will and testament of said deceased.

Appeal by the plaintiff, Mary Smith, as administratrix, etc., from part of an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the Tth day of April, 1913, and also from an order entered in said clerk’s office on the 20th day of May, 1913, denying the plaintiff’s motion to resettle the first mentioned order.

<p>Master and servant—negligence — death by slipping of ladder — evidence raising question for jury.</p> <p>Action against a master to recover for the death of a servant who, by the direction of a foreman, mounted a ladder which slipped and killed him. There was evidence that the spurs on the foot of the ladder were blunt and liable to slip. Evidence examined, and held, sufficient under section 18 of the Labor Law to make the defendant’s negligence and the contributory negligence of the decedent questions for the jury.</p> <p>Said provisions of the Labor Law do not preclude the defendant from invoking the contributory negligence of the decedent.</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 21st day of December, 1912, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 18th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Frank Mann, as executor, etc., from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of November, 1912, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict, and also from an order entered in said clerk’s office on the 2d day of November 1912, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Herman Brede, 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 26th day of October, 1912, upon .the decision of the court after a trial at the Kings County Special Term.

Appeal by the petitioner from an order of a justice of the Supreme Court, made at the Supreme Court chambers in the city of Schenectady and entered in the office of the clerk of the county of Schenectady on the 18th day of October, 1913, denying the petitioner’s application to cancel the certificate of nomination issued by the Secretary of State of the State of New York to Henry V. Borst, showing the said Borst to be the hominee of the Socialist party as justice of the…

<p>Appeal by the plaintiff, Manuela IST. Einstein, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 9th day of September, 1913, denying plaintiff’s motion to strike from the separate defense contained in the answer certain denials of allegations of the complaint on the ground that the same were irrelevant and redundant.</p>

Appeal by the plaintiff, Manuela N. Einstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of September, 1913, denying plaintiff’s motion to strike from the separate defense contained in the answer certain denials of allegations of the complaint on the ground that the same were irrelevant and redundant.

Appeal by the defendant, Massachusetts Bonding and Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleik of the county of New York on the 9th day of September, 1913, denying defendant’s motion to require plaintiffs to reply to the second separate defense set up in the answer, • and also requiring the defendant to furnish plaintiffs with a bill of particulars before the plaintiffs will be required to…

Appeal by the defendant, Keystone Driller Company, from so touch 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 19th day of June, 1913, resettling a prior order entered in said clerk’s office on the 19th day of May, 1913, as disallows and amends certain interrogatories and cross interrogatories attached to a commission to examine witnesses in a foreign country.

Appeal by the plaintiff, Leih-und-Sparkassa Aadorf, 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 14th day of January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of January, 1913, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the relators, George D. Squires and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 23d day of August, 1912, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the plaintiff, Adelaide M. McLaughlin, as execu-trix, etc., 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 10th day of April, 1912, upon the dismissal of the complaint by direction of the court at the close of the case after a trial before the court and jury at the Queens County Trial Term.

Appeal by the petitioner, William J. Wilkins, 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 his motion to reverse an order of the board of elections of the city of New York placing the name of George A. Loft upon the official ballot as candidate for Congress in the thirteenth Congressional district.

Appeal by Francis E. Stoddard, Jr., 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, declaring independent nominations for Assemblyman in the twenty-fifth Assembly district, and for alderman in the twenty-sixth aldermanic district void.

Appeal by the defendant, Dennis Charles McQuade, from a judgment of the Supreme Court in favor of the plaintiffj entered in the office of the clerk of the county of New York on or about the 9th day of January, 1918, upon the decision of the court after a trial before the court at the New York Trial Term, a jury having been waived.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.</p>

Appeal by the defendant, Julia Nugent, from a judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of Dutchess on the 4th day of August, 1910, upon the report of a referee appointed to hear and determine the issues.

<p>Injunction — appeal—powers of Appellate Division — Code of Civil Procedure, section 606, construed — when temporary injunction should not be granted.</p> <p>Section 606 of the Code of Civil Procedure, relating to the granting of a temporary injunction and the power of the Appellate Division in the premises,'should be construed so as to read as follows: “Pending an appeal to the Appellate Division or to the Court of Appeals from an order or judgment denying or vacating an injunction, an injunction order which, if granted,-may be modified or vacated by the Appellate Division may also be granted or continued by the Appellate Division or a justice thereof.”</p> <p>A temporary injunction should not be granted enjoining a defendant, an attorney at law, from collecting percentages due him under certain contracts retaining him to appear in condemnation proceedings in the city of New York, where the nature and the legality of the contracts are in issue and the plaintiff has failed to incorporate them in the moving papers.</p>

Appeal by the plaintiff, the Raymond Concrete Pile Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 7th day of January, 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 the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Granite Spring Water 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 11th day of February, 1913, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the plaintiff, Louis Vasligato, an infant, etc., ' from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of May, 1913, upon a dismissal of the complaint at the close of the case by direction of the court after a trial before the court and a jury at the Kings County Trial Term.

<p>Appeal by the plaintiff, Helen Hicks Earle, 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 Westchester on the 17th day of June, 1913.</p>

Appeal by the defendant, New York City Waterfront 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 23d day of May, 1913.

Appeal by the plaintiff, Hyman Blumenthal, from a judgment of the Supreme Court in favor of the defendant Brooklyn Union Elevated Railroad Company, entered in the office of the clerk of the county of Kings on the 28th day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1912, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mills W. Barse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of March, 1909, upon the decision of the court after a trial at the Kings County Special Term, with notice of intention to bring up for review an order made on or about March 4, 1909, confirming the report, account, findings and refusals to find of the referee herein, and directing entry of the final…

<p>Appeal by George Hyatt Robinson and another 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 23d day of July, 1913, as directs that the claim of the respondents be paid from the estate of Augusta Hyatt.</p>

Cross-appeals by Harry E. Thaw and the People of the State of New York and others from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Dutchess on the 21st day of April, 1913.

Appeal by the defendant, Broc R. Shears, from a judgment of the Supreme Court in favor of the plaintiff, rendered against him on the 20th day of January, 1913, convicting him of the crime of grand larceny in the first degree after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Joseph Walz, 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 12th day of June, 1913.

Appeal by Frank Dickerson 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 25th day of March, 1913, denying his motion for an order to compel the payment of an award.

Appeal by the defendant, Inn Corporation, from an order of the Supreme Court, made at the Kings County Special Term for Motions and entered in the office of the clerk of the county of Kings on the 25th day of June, 1913, denying a motion to vacate a warrant of seizure.

Appeal by the defendant, Louis Fishman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of July, 1913.

<p>Attorney at law suspended—preferring criminal charges for purpose of influencing decision in civil case.</p> <p>Attorney at law suspended from practice for professional misconduct in preferring criminal charges for the purpose of influencing the decision of civil cases in which he or his client was interested.</p> <p>A lawyer is never justified in using a criminal proceeding to collect a civil debt or enforce a civil right, and especially not when it clearly appears that the facts upon which the criminal charge is made do not justify the same.</p>

<p>Charges of professional misconduct against the respondent, Charles H. Herbst, an attorney, by the Association of the Bar of the City of New York.</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 Queens on the 5th day of December, 1912, and amended by an order entered in said clerk’s office on the 26th day of December, 1912. The judgment was entered upon the verdict of a jury for $10,000.

<p>Attorney at law — charges of professional misconduct in judicial opinion — power of Appellate Division to make investigation.</p> <p>Under the Judiciary Law the Appellate Division has power, upon the personal motion of an attorney at law who has been charged in the written opinion of a justice with professional misconduct, to order an inquiry into his conduct and may designate persons to prepare charges and report to the court.</p>

Appeal by the defendant, Terry & Tench Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of October, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 22d day of October, 1912, denying the defendant’s motion for a new trial.

<p>Appeal by the plaintiff, Andrew Stevenson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of May, 1913, denying his motion for judgment on the pleadings dismissing a counterclaim interposed by the defendant executors, on the ground that the same is not of the character permitted to be interposed under section 501 of the Code of Civil Procedure.</p>

Appeal by the defendant, The Hammond Typewriter 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 8th day of November, 1912, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Michael J. Mahony, 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 2'Tth day of November, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Stollwerok Brothers, Inc., 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 October, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of October, 1912, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Warner-Quinlan Asphalt Company, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Albany on the 28th day of August, 1913, denying its motion for an injunction pendente lite.</p>

Appeal by the relator, Samuel Hutchinson, 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 2d day of July, 1912, denying relator’s application for a peremptory writ of mandamus directing the respondent to pay relator’s claim for interest upon an award for land appropriated by the State for barge canal purposes.

Appeal by the claimant, The People of the State of New York, 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 14th day of April, 1913, confirming the report of a referee dismissing the claim of the People of the State of New York.

Appeal by John F. Yawger, as receiver, etc., from an order of the Supreme Court, made at Albany Special Term and entered in the office of the clerk of the county of Albany on the 27th day of May, 1913, allowing respondent’s claim in the sum of $750 with interest.

<p>Appeal by the petitioner, William J. Hyland, 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 May, 1913, denying a motion for a peremptory writ of mandamus to compel the respondent to reinstate the petitioner in the police department of the city of New York.</p>

<p>Crime — criminally receiving stolen property — evidence of good character of defendant — charge.</p> <p>Where, upon the trial of a defendant for criminally receiving stolen property, the only instruction by the court as to evidence of the good character of the defendant was that “it is to be given by the jury its just and proper weight and no more,” it was reversible error for the court to refuse the request of the defendant to charge “ that good reputation of itself may create a reasonable doubt, where otherwise no doubt would exist.”</p>

<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 defendant, Metropolitan Life Insurance Company, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 27th day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Tennis J. Van Der Bent, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 3d day of April, 1913, upon the decision of the court after a trial at the Ulster Special Term.

<p>Appeal — case on appeal — resettlement of case to conform to stenographer’s minutes.</p> <p>The law does not look with favor upon an appeal from an order denying a motion to resettle a case, as the orderly administration of law requires that the determination of the court below with regard to what occurred during the trial shall be conclusive unless there is a manifest abuse of power. Thus, where the trial justice states that according to his recollection no motion for the direction of a verdict or motion to dismiss was made and no such motion appears in the stenographer’s minutes, the record will not be amended in that respect.</p> <p>But where neither the proposed case nor the case as settled by the trial justice conforms to the actual occurrences as disclosed by the stenographer’s minutes, the record should be amended by inserting a transcript of said minutes.</p>

<p>Execution against salary — remedy where person holding salary refuses to pay.</p> <p>The court has no authority to order a city comptroller summarily to pay over a percentage of the wages of an employee against which an execution has been issued, under section 1391 of the Code of Civil Procedure, for where an officer or corporation holding such salary refuses to pay, he is personally liable to an action by the judgment creditor, which remedy is exclusive.</p>

<p>Attorney and client — attorney’s lien on judgment—satisfaction of judgment by client at less than face value — execution against persons against whom judgment has been obtained.</p> <p>An attorney having a retainer giving him a percentage of any judgment obtained for his client has, by virtue of section 475 of the Judiciary Law, a lien which attaches to such judgment which, cannot be affected by any settlement between the parties, and, hence, where the client satisfies a judgment at less than its face value, the satisfaction piece should be vacated on the application of the attorney.</p> <p>It seems, that even after judgment the client may satisfy the same for less than its face value providing he acts fairly and in good faith and in reasonable apprehension that the defendant may become insolvent or the judgment may be reversed on appeal. But the burden is upon the client to justify that action.</p> <p>It seems, that where an attorney’s retainer gives him a percentage to be determined by the sum “ realized” “either by way of settlement or suit,” he is only entitled to the percentage on the sum for which the client satisfies a judgment obtained by him as that is the amount “realized.”</p> <p>The summary proceeding authorized by section 475 of the Judiciary Law is applicable only to disputes between attorney and client. Where an attorney seeks to enforce his lien against persons' not his clients against whom he has obtained a judgment, the court cannot in such summary proceeding authorize him to issue execution to satisfy his lien, as that must be done by foreclosure.</p>

<p>Deposition — examination' of corporation before trial—knowledge of officer obtained prior to incorporation — books and papers of third person.</p> <p>Where a corporation sues upon a promissory note of which it has become the holder, it may be examined before trial through its officers as to matters of defense alleged by the defendant, although they occurred prior to the formation of the corporation, where the officers had personal knowledge thereof. Under such circumstances the prior knowledge of the officers is imputable to their corporation.</p> <p>But on such examination before trial the plaintiff cannot be compelled to produce the books and papers of a third party once holder of the note who is not a party to the action and over whose books and papers the plaintiff has no control.</p>

Appeal by the defendant, Thomas A. Sperry, 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 28th day df March, 1913, dissolving a partnership and appointing a referee to take and state an account of the partnership property.

Appeal by the defendant, Charles Buek, from an order and determination of the Appellate Term 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 February, 1913, affirming a judgment of the City Court of the city of New York in plaintiff’s favor and an order denying defendant’s motion for a new trial.

Appeal by the defendant, Noah E. Barnes, from a judgment of the Supreme 'Court in favor of the plaintiff, rendered against him on the 7th day of April, 1910, convicting him of the crime of grand larceny in the first degree.

Appeal by the defendant, Gustavus Emil Strauss, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1913, overruling a demurrer to the reply.

Appeal by the defendant, James W. Henning, 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 June, 1913, denying a motion to vacate an order for the examination of the appellant in supplementary proceedings.

Appeal by the plaintiff, Panama Realty 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 15th day of January, 1913, upon the verdict of a jury rendered by direction of the court.

<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 defendant, City Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February, 1913, dismissing the counterclaims interposed by the answer, and giving judgment upon the pleadings in plaintiff’s favor.

Certiorari issued out of the Supreme Court and attested on the 18th day of October, 1911, directed to Rhinelander Waldo, police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in the hearing and trial of the relator.

<p>Appeal by the plaintiffs, The Trustees of the Sailors’ Snug Harbor in the City of New York, and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of October, 1912, sustaining a demurrer to the complaint, and dismissing the same upon the ground that it fails to state facts sufficient to constitute a cause of action.</p> <p>By this action the plaintiffs seek authority either to sell or to mortgage a portion of the real estate devised by the will of Robert R. Randall, deceased; also for instructions as to their power in certain particulars to deal with such real estate and the accretions of rents and other accumulations therefrom. Captain Randall died in the year 1801, having in June of that year made his last will and testament, probate of which was regularly made in New York city. The provisions of his will which bear upon ' the issues in this action are as follows:</p> <p>“Sixthly. As to and concerning all the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath the same unto the Chancellor of the State of Hew York, the Mayor and Recorder of the city of New York, the President of the Chamber of Commerce in the city of New York, the President and Vice-President of the Marine Society of the city of New York, the senior Minister of the Episcopal Church in the said city, and the senior Minister of the Presbyterian Church in the said city; to have and to hold all and singular the rest, residue and remainder of my said real and personal estate, unto them, the said Chancellor of the State of New York, Mayor of the city of New York, the Recorder of the city of New York, the President of the Chamber of Commerce, President and Vice-President of the Marine Society, senior Minister of the Episcopal Church, and senior Minister of the Presbyterian Church in said city, for the time being, and their respective successors in the said offices, forever, to, for and upon the uses, trusts, intents and purposes, and subject to the direction and appointments hereinafter mentioned and declared concerning the same; that is to say, out of the rents, issues and profits of the said rest, residue and remainder of my said real and personal estate, to erect and build upon some eligible part of the land upon which I now reside, an Asylum, or Marine Hospital, to be called ‘ The Sailors’ Snug Harbor,’ for the purpose of maintaining and supporting aged, decrepit and worn-out sailors, as soon as they, my said charity Trustees, or a majority of them, shall judge the proceeds of the said estate will support fifty of the said sailors, and upwards. And I do hereby direct that the income of the said real and personal estate, given as aforesaid to my said charity Trustees, shall forever hereafter be used and applied for supporting the Asylum or Marine Hospital hereby directed tobe built, and for maintaining sailors of the above description therein, in such manner as the said Trustees, or a majority of them, may from time to time, or their successors in office may from time to time, direct. And it is my intention that' the institution hereby directed and created should be perpetual, and that the above-mentioned officers for the time being and their successors, should forever continue and be the governors thereof, and have the superintendence of the same; and it is my will and desire that if it cannot legally be done, according to my above intention, by them, without an Act of the Legislature, it is my will and desire that they will, as soon as possible, apply for an Act of the Legislature to incorporate them for the purposes above specified. And I do further declare it to be (my) will and intention that the said rest, residue and remainder of my real and personal estate should be, at all events, applied for the uses and purposes above set forth; and that it is my desire all courts of law and equity will so construe this, my said Will, as to have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, possess or enjoy my property, except in the manner and for the uses hereinabove specified.”</p> <p>The foregoing residuary clause covered both real and personal property, the former includmg premises with which this action is principally concerned, and consisting of upwards of twenty-two acres of land which, at the time of the testator’s death, lay remote from the city, but afterwards was included within the fifteenth ward thereof, and lies in the district embraced within Waverly place, Eighth street, Fourth and Fifth avenues. At the instance of the trustees named in the will, in the year 1806 the Legislature passed an act (Laws of 1806, chap. 4) entitled “An Act to incorporate the Trustees of the Marine Hospital, called The Sailor’s Snug Harbor, in the City of New-York.” The preamble to this act recited that it had been represented to the Legislature that Captain Randall had devised his residuary estate to the Chancellor of this State, and to the other incumbents of the several offices enumerated in the will, and to their successors in office, in trust, for the purposes described in the will, and had “ declared his intention to be, that the said estate should at all events be applied to the purposes aforesaid, and no other, and if his said intent could not be carried into effect without an act of incorporation, he therein expressed his desire that the said trustees would apply to the Legislature for such incorporation;' ” that the said trustees had represented that the estate so devised would, in time, if prudently managed, enable them to carry the testator’s purposes into practical effect, but that inasmuch as they held their trusteeships under the will only during their ephemeral incumbency of the offices they respectively held, inconveniences had arisen in the management of the estate, to overcome which they “ prayed to be incorporated for the purposes expressed in the said will.” By the 1st section of the act, “ John Lansing, Junior, the Chancellor of this State,” and the other officials named in the will, “ and their successors in office respectively, in virtue of their said offices,” were “constituted and declared to be a body corporate, in fact and in name, by the name and style of the Trustees of the Sailor’s Snug Harbor in the City of New-York,” by which name they and their successors were given continual succession and other corporate functions, and were declared to “ be capable, in law, of holding and disposing of the said real and personal estate devised and bequeathed as aforesaid, according to the intention of the said will, and the same is hereby declared to be vested in them and their successors in office, for the purposes therein expressed.” Power to purchase, hold and convey “ any other real and personal estate for the use and benefit of the said corporation, in such manner as to them, or a majority of them, shall appear to be most conducive to the interest of the said institution ” was likewise given. The 2d section of the act conferred upon the trustees power to make rules for the government of the corporation, and contained other provisions for the organization of the internal affairs of the corporation and its trustees and for the regulation thereof. By the 3d and last section the act was declared to be a “ public act, and be construed in all courts and places benignly and favorably, for the purposes therein intended.” The accumulations of the estate having as yet proven insufficient to carry out the purposes of the will, and time having demonstrated that it was undesirable to establish the Sailors’ Snug Harbor upon any of the testator’s lands, by procurement of the trustees, in the year 1828 an act was passed (Laws of 1828, chap. 276) which, among other things, authorized the trustees, with the approval of the Court of Chancery, to purchase a suitable tract upon which to build and maintain the harbor, and thereupon “it shall be lawful for the said trustees to lease all the lots now belonging to .the ” corporation. In pursuance of this act, the trustees purchased land and located the harbor on Staten Island, and by authority of the same act they adopted a plan for the improvement and development of their fifteenth ward property. Pursuant to this plan, the property was divided into lots each approximately 25 by 100 feet, and was leased upon long term ground leases, many of which have fallen in, Avhile many others have still considerable periods to run. Under these leases the tenants erected their own improvements and paid to the trustees a net rental over and above all taxes and other charges, which were borne by the tenants. The complaint further alleged that the type of buildings which were erected upon a large number of the lots in question, while appropriate to the uses to which the land was then adapted, where they have not become worn out and worthless, have become obsolete and unadapted and unadaptable to the only use or uses to which it is now practical to devote them; that as to a large portion of the property, from a district of residences, the neighborhood has become one devoted chiefly to business, and that, in order to uphold values, already much depreciated in the very considerable section in question, and to prevent a further and increasing sacrifice of income by driving desirable business permanently away, it is necessary that the property should be improved in an appropriate manner, a course which involves the buying up of leases and also the erection of suitable improvements by the plaintiff corporation (for which purposes it lacks the necessary means), or the sale of portions of the property to those who may wish to buy and improve. Upon these and other minor subjects the plaintiff prayed for the instruction and authority of the court.</p>

Appeal by the defendant, Archibald S. White, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of June, 1913, as resettled by an order entered in said clerk’s office on the 12th day of June, 1913, denying defendant’s motion to strike out portions of the complaint as irrelevant, redundant and scandalous and to make other allegations more definite and certain.

Appeal by the defendant, Archibald S. White, 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 June, 1913, in so far as the same denied defendant’s motion for an extension of time to answer, and also from said order as resettled by a second order entered hi said clerk’s office on the 25th day of June, 1913, granting an extension of time upon conditions, and also an appeal…

Appeal by the plaintiff, Almon Gr. Miller, from an order of the Supreme Court, made at the Tompkins Special Term and entered in the office of the clerk of the county of Tompkins on the 29th day of May, 1913, awarding plaintiff the sum of $525 for counsel fees and expenses.

Appeal by the defendant, 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 Cortland on the 18th day of April, 1913, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the. minutes.

Appeal by the plaintiff, Luther H. Cary, as foreman, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 28th day of February, 1913, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendant, the Buffalo Cold Storage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 28th 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 the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Anna Roughan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 27th day of August, 1912, upon the decision of the court after a trial at the Chenango Special Term.

Appeal by the defendant, Edward W. Colligan, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 22d day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1911, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Catherine Fitzgerald, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 8th day of May, 1912, upon a dismissal of the complaint at the close of the plaintiff’s case by direction of the court upon the trial before the court and jury at the Cattaraugus Trial Term.

<p>Vendor and purchaser — contract to convey lands construed—payment of city taxes.</p> <p>Where a contract for the purchase of real property provides that the vendor will furnish at his own expense abstracts of title and tax searches to the date of transfer, showing “good title and premises free and clear of all hens and incumbrances, ” and that on the delivery of the deed on June 1, 1910, “all taxes, insurance premiums and water rates are to be adjusted to and including May 31, 1910,” and the charter of the city in which the property is located provides that city taxes levied on the first day of April each year shall be liens upon the property taxed from the time of the levying thereof, a city tax levied on the property conveyed on the first day of April was a lien thereon at the time of the making of the contract, and should be paid by the vendor.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 21st day of May, 1913, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 26th day of May, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James 0. Fargo, as president, 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 10th day of April, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Dominick Pascowitch, from a judgment of the Court of Special Sessions of the City of New York, borough of Brooklyn, rendered against him on the 14th day of April, 1913, convicting him of the crime of assault in the third degree.

<p>Decedent’s estate — deposition—proof not establishing undue influence or testamentary incapacity — adultery of husband of testatrix — pertinency of proposed interrogatories — appeal.</p> <p>The fact that a wife believed her husband to have been an adulterer and yet made him the chief beneficiary under her will is no proof that he exerted undue influence or that she lacked testamentary capacity. Hence, in a proceeding to probate the will of the wife, interrogatories should not issue to establish the fact that the husband had improper relations with another woman, but persuaded his wife to believe that such was not the fact.</p> <p>While on a commission to take the deposition of witnesses without the State either party is allowed to insert questions pertinent to the issue, when the pertinency of proposed questions is challenged the proposer must show their pertinency.</p> <p>An appeal to the Appellate Division lies from an order of the Surrogate’s Court disallowing proposed interrogatories.</p>

Appeal by 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 6th day of June, 1913, granting the petition of Charles W. Moon, as administrator of the goods, chattels and credits of Mary Elizabeth Brown, deceased, and of Jacob Levi Brown, deceased, defendants herein, and directing the Comptroller of the State of New York to draw and deliver…

<p>Appeal by the defendant, Mary M. Klopsch, as executrix, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of" the county of New York on the 21st day of November, 1912, vacating a judgment and granting a new trial.</p>

Appeal by the defendant, Kittie P. De Groote, individually and as executrix, etc., from an order of the Supreme Court, made at the New York' Special Term and entered in the office of the clerk of the county of New York on the 19 th day of April, 1913, overruling a demurrer to the complaint and' awarding judgment in plaintiff’s favor.

<p>Guaranty and suretyship — guaranty of promissory note — principal and agent — agreement granting authority to individual members of firm — signing of agreement by one member ineffective.</p> <p>Where in an action upon an underwriting agreement the defendant’s liability is predicated in part upon the guaranty by the “ managers ” of the underwriters of a promissory note and the assignment of the underwriting agreement as collateral security, the underwriting agreement signed by defendant granted specific authority to the “managers” to guarantee the payment of notes, and the “managers” were designated in the underwriting agreement as “ Olaude W. Jester and Martin S. Watts, general partners, and George T. Jester, special partner, doing business under the firm name and style of Jester & Co.,” it was the individual members of the firm of Jester & Co. who were made the “managers,” and the signing of the guaranty by- one of ,the managers alone, who added to his own name that of the firm, was not a valid exercise of the authority given to them, and was ineffective to create any liability against the defendant. ,</p>

<p>Decedent’s estate — action by child to recover for services rendered to parents — proof not justifying recovery.</p> <p>Where, in an action to recover for services rendered to a decedent, the relationship between the parties is that of parent and child, the law presumes that the services were gratuitous in the absence of proof of an express promise to pay.</p> <p>Action by a daughter to recover for services rendered to her father and mother during their lifetime. Evidence examined, and held, insufficient to establish a promise to pay for the services, and that a judgment for the plaintiff should be reversed and a new trial granted.</p>

Appeal by the defendant, New York Safety Resérve Fund, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 16th day of April, 1913, upon the decision of the court after a trial before the court without a jury at the Orange Trial Term.

Appeal by the petitioners, Michael J. Farley and others, from an order. of a justice of the Supreme Court, entered in the office of the clerk of the county of Chenango on the 30th day of August, 1913, denying the application herein.

Appeal by Albert Smith Sheldon and another from a decree of the Surrogate’s Court of the county of Madison, entered in the office of said surrogate on the 23d day of December, 1912, with notice of an intention to bring up for review the findings made by the surrogate.

Appeal by the plaintiff, the Lestershire Lumber and Box Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 20th day of January, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 5th day of February, 1913, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by William W. Farley, as State Commissioner of Excise, from an order of the county judge of Broome county, entered in the office of the clerk of said county on the 28th day of October, 1912, denying an application to cancel liquor tax certificate No. 19,442, issued to Daniel S. Gardner.

Appeal by the plaintiff, Charles H. Seeley, as receiver, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 19th day of April, 1913, upon the decision of the court after a trial at the Broome County Special Term.

Appeal by the defendant, Eoyal Insurance Company, Limited, from an order of the Supreme Court, made at the Albany Trial Term and entered in the office of the clerk of the county of Albany on the 9th day of May, 1913, denying the defendant’s motion to compel plaintiffs to reply to the first defense contained in the answer.

Appeal by the defendant, Kanes Falls Electric Company, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 16th day of August, 1911, upon the decision of the court after a trial before the court without a jury at the Warren Trial Term.

<p>Landlord and tenant—action for rent — proof of authority of agent to lease premises — evidence—-holding over by tenant — new trial — appeal — authority of Appellate Division to review errors where no exceptions have been taken at trial.</p> <p>In an action to recover unpaid rent it appeared that the plaintiff’s agents, unauthorized to extend or alter the terms of any lease, procured a tenant with whom a lease was executed by the plaintiff herself for one year, rent payable monthly in advance; that defendant remained in possession of the premises for over two months after the expiration of said lease, when this action was commenced to collect the rent at the rate specified in the original lease. The defendant claimed that prior to the expiration of the lease she had agreed with plaintiff’s agents that the rent should be reduced for the next year, and that she should be relieved from the payment of water rates. Evidence examined, and held, sufficient to establish the alleged agreement between the defendant and the plaintiff’s agents, but insufficient to establish the authority of the agents to make such agreements, and that a judgment in favor of the defendant should be reversed and judgment directed for the plaintiff.</p> <p>Plaintiff’s agents having no authority either to substitute a new lease or to modify the old one, the holding over of the defendant is in law presumed to have been under the terms of the original lease.</p> <p>The authority of an agent to execute or modify a lease cannot be proved by the declarations of the agent.</p> <p>Upon a motion for a new trial under section 999 of the Code of Civil Procedure the trial court has authority, if the interests of justice so require, to grant a new trial, notwithstanding any failure on the part of the attorneys for the plaintiff to take proper objections or exceptions or to make proper motions.</p> <p>Upon an appeal to the Appellate Division from the judgment alone error cannot be claimed, except through an exception taken at the trial; but if the appeal is from an order denying a motion for a new trial, errors may be reviewed and a new trial granted, although no exceptions have been taken.</p> <p>Kellogg, J., dissented, with opinion.</p>

<p>Appeal from an order denying plaintiff’s motion to continue temporary injunction until the final determination of the action.</p>

<p>Appeal from an order of the Supreme Court, made at the New York Special Term, dated the 4th day of April, 1913, and entered in the New York county clerk’s office, compelling defendant in an action on a fire insurance policy to furnish a bill of particulars.</p>

<p>Appeal from interlocutory judgments sustaining demurrers to the complaint.</p>

<p>Appeal from a judgment entered on the pleadings.</p>

Appeal by defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on January 3, 1913, awarding the plaintiff damages for nuisance.

<p>Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1913, appointing' a referee to hear and determine the issues.</p>

Certiorari issued out of the Supreme Court, attested on the 17th day of March, 1913, to review the action of the Public Service Commission. Writ dismissed and order sustained, with fifty dollars costs and disbursements.

<p>Appeal from a judgment of the Supreme Court, entered in the Erie county clerk’s office on the 6th day of March, 1913, and also from an order entered on the same day.</p> <p>Judgment and order affirmed, with costs.</p>

Appeal by the plaintiff from an order of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 34th day of May, 1913, setting aside the verdict of a jury in favor of the plaintiff and granting defendant a new trial. Order affirmed, with costs.

<p>Appeal from a judgment of the Supreme Court, entered in the Rensselaer county clerk’s office on the 2d day of January, 1913.</p> <p>Judgment unanimously affirmed, with costs, on the opinion of Cochrane, J., at Special Term.</p>

<p> Practice —pleading—amendment—jurisdiction—County Court of Kings county. </p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 17th day of February, 1913, dismissing his complaint, and also from an order, entered in said clerk’s office on the same day, denying a motion for a new trial. Judgment and order affirmed, with costs.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 17th day of March, 1913, dismissing his complaint. Judgment affirmed, with costs.

<p>Appeal from an order of the Supreme Court, entered in the Nassau county clerk’s office on the 16th day of April, 1913.</p> <p>Order affirmed, with ten dollars costs and disbursements, on opinion of Mr. Justice Blackmar at Special Term.</p>

<p>Infant—contract—right to rescind—purchase of stock—practice — injunction — staying action at law pending decision in suit in equity.</p>

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of December, 1913, and also from an order entered in said clerk’s office on the 6th day of January, 1913, denying a motion for a new trial.

<p>Application to dismiss an appeal from an order confirming a report of commissioners of estimate and assessment.</p>

<p> Mortgage —foreclosure. </p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 18th day of February, 1913, on a verdict and from an order entered on the 30th day of February, 1913, denying a motion for new trial.</p>

<p>Appeal from an order of filiation made at the Court of Special Sessions of the city of Hew York and entered on the 31st day of March, 1913.</p>

<p>Appeal from an order of the Special Term, entered in the New York county clerk’s office on the 19th day of July, 1913, denying a motion for leave to serve an amended complaint and giving leave to discontinue the action upon certain terms.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 25th day of July, 1913, denying a motion to compel the defendants to serve a bill of particulars of then claims.</p>

<p>Appeal from an order of the Supreme Court, entered in the Mew York county clerk’s office on the 31st day of Hay, 1913, granting the defendants’ motion for judgment and vacating a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 6th day of June, 1913, dismissing the complaint at Trial Term at the close of plaintiff’s case.</p>

<p>Appeal from an order of the Supreme Court, entered in the Mew York county clerk’s office on the 11th day of July, 1913, denying a motion to set aside the taxation of costs in favor of plaintiff and against one defendant, and to direct taxation of costs in favor of one of the defendants against the plaintiff.</p>

<p> Appeal —failure to file papers. </p>

<p>Certiorari—dismissal of policeman — Mew York city.</p>

<p>Incompetent person — accounting of committee—trust — lease — renewal.</p>