Volume 159 — New York Appellate Division Reports

Appear by the defendant, Herbert F. J. Norton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 2d day of April, 1912, upon the decision of the court after a trial at the Erie Equity Term adjudging the plaintiff to be the owner of a half interest in the. proceeds of a mortgage made by Lafayette Square Theatre Company to the defendant. This is the second trial of the action.

<p>Judgment—res adjudicata — final decision of United States court — decree of Surrogate’s Court allowing probate from which no appeal has been taken.</p> <p>Where upon an appeal from a decree of a Surrogate’s Court it appears that the matters in dispute have been finally settled by the United States Circuit Court of Appeals, upon the application of the appellants, the decision of such court is res adjudicata.</p> <p>A decree of the Surrogate’s Court, admitting a will to probate from which the contestant has not appealed, is final and binding and cannot be thereafter reviewed.</p>

Appeal by the plaintiff, John E. Milholland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 17th day of October, 1912, upon the decision of the court after a trial at the Essex Special Term.

Appeal by the defendant, William D. Pindar, from a judgment of the County Court of Otsego county, rendered against him on the 11th day of October, 1912.

Appeal by the defendant, James R. Willard, from a judgment of the County Court of Fulton county, rendered against him on the 6th day of December, 1912, convicting him of feloniously receiving stolen property.

Appeal by Henry J. Williams, as administrator, etc., from a decree of the Surrogate’s Court of the county of Delaware, entered in the office of said surrogate on the 21st day of October, 1912, in so far as it adjudges the claimant Mary Sutton Lakin to be entitled to the sum of $598 from said estate:

Appeal by the petitioner, Witherbee, Sherman & Company, from an order of the Essex County Court, entered in the office of the clerk of the county of Essex on the 14th day of July, 1913, reversing a final order of a justice of the peace in summary proceedings, dated March 11,1913. .

Appeal by the defendant, the United Traction Company, 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 8th day of March, 1912, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 25th day of March, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Frederick E. Hawkes, as executor, etc., from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 19th day of March, 1913, upon the report of a referee appointed to hear and determine the issues.

Appeal by Anton H. Meyer, as assignee, 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 21th day of June, 1913, declaring the existence of an attorney’s lien and directing a reference.

Appeal by the defendants, Thomas Gilleran 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 Westchester on the 7th day of January, 1913, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the petitioner, Giovanni D’Adamo, from a decree of the Surrogate’s Court of the county of Jefferson, entered in the office of said surrogate on the 19th day of June, 1913, denying a petition to revoke letters of administration issued herein to the Italian consul and for the granting of said letters to the petitioner, Giovanni D’Adamo.

Appeal by John H. Hopkins, as special guardian of Homer D. Nash, from an order of the County Court of Genesee county, entered in the office of the clerk of said county on the 15th day of January, 1913, passing the accounts of John H. Ward, as committee of Homer D. Nash, and discharging his surety.

Appeal by the defendant, Utica Home Telephone Company, from a judgment of the County Court of Oneida county in favor of the plaintiffs, entered in the office of the clerk of said county on the 19th day of November, 1912, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the 18th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, New York Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the Pith day of March, 1913, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 11th day of March, 1913, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Peter B. Colgan, from an order of the Supreme Court, made at the Chautauqua Trial Term as resettled, and as resettled entered in the office of the clerk of the county of Chautauqua on the 7th day of June, 1913, dismissing the complaint at the opening, and also from the judgment entered upon said dismissal in said clerk’s office on the 9th day of June, 1913, as amended on June 27, 1913.

Appeal by the plaintiff, Leander B. Faber, as receiver, 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 or about the 12th day of September, 1913, granting defendants’ motion to cancel a lis pendens.

<p>Crime — attempt to bribe witness — evidence — prior conviction — impeachment of defendant — preliminary papers in other pending criminal proceedings inadmissible.</p> <p>Upon the trial of a defendant indicted for attempting to bribe a witness in violation of section 2440 of the Penal Law, it is error to permit proof of defendant’s conviction of another crime where the judgment was subsequently reversed.</p> <p>Questions to a witness in an endeavor to impeach a defendant should be limited to the knowledge of the witness from the speech of people whom he has heard, and should exclude knowledge based upon personal information. It is error to allow such a question to be asked, founded .in part upon the personal knowledge of the witness.</p> <p>Although the prosecution was entitled to prove that other criminal proceedings were pending against the defendant, it was error to introduce in evidence the affidavits and preliminary papers upon which such proceedings were founded.</p>

Appeal by the defendant, Samuel J. Clarke, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 26th day of June, 1912, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, The Ridgway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1913, requiring Ray Brown, the secretary, treasurer and director of the defendant, to answer certain questions which he had refused to answer on his examination under an order for the examination of the defendant by said Brown, as its secretary, treasurer and director,…

<p>Decedent’s estate — when contract with decedent is testamentary in character — failure of specific legacy because of disposition of subj ect-matter.</p> <p>In an action by the plaintiff on behalf of herself and all other creditors of a testatrix against the executrix to establish the indebtedness of the estate to her, and to set aside certain conveyances alleged to have been made in fraud of creditors, it appeared that the testatrix when over seventy years of age signed the following instrument: “ I, Mary F. ' Gra Nun, do promise to care for Jane M. Sands in sickness and health as long as she lives. I, Jane M. Sands do promise to pay Mary F. Gra Nun Seventy dollars a month for the support of the house and her clothes as long as I live, and at my death he is to have Twenty thousand dollars that she will find in the Safe Deposit in New York and she is to take my keys and distribute the packages in box as they are marked, and all my clothing and wearing apparel and silver (in short) everything in the house shall be Mary F. Gra Nun’s.” About six months thereafter testatrix left plaintiff’s house and went to reside with the defendant, where she remained until her death about six years later, at which time she did not have any money or property in a safe deposit in New York or elsewhere. Prior to her death she had conveyed nearly all her property. Held, that although the first part of the agreement was contractual, the latter provision was testamentary in character and the $20,000 was a gift of a specific legacy which failed because the subject-matter thereof was not in existence at the date of the death of the testatrix;</p> <p>That since the specific legacy to the plaintiff failed, she was not a creditor and, therefore, the action was improper and the complaint should be dismissed.</p>

Appeal by the defendant, Marx E. Harby, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk in the 15 th day of January, 1913, upon the verdict of a jury for $1,000 and also from an order entered in said clerk’s office on the 15th day of February, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The People of the State of New York, by William Sohmer, Comptroller, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county óf New York on the 10th day of March, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 11th day of March, 1913, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by Laura Hoagland and others from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 4th day of March, 1912, judicially settling the account of the testamentary trustees herein.

Cross-appeals by Patrick Ryan, as sole surviving partner, etc., and the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of October, 1910, upon the report of a referee appointed to hear and determine the issues; also appeal by the defendant, The City of New York, from an order of the Supreme Court, entered in the office of the clerk of the county of…

Appeal by the defendant,- H. J. Koehler Sporting Goods Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 9th day of January, 1913, affirming a judgment of the Municipal Court of the City of New York in plaintiff’s favor.

<p>Insurance — policy on the assessment plan construed —pleading — demurrer to complaint in action against foreign corporation —■ jurisdiction.</p> <p>Where a policy of life insurance on the assessment plan provides that after the insured attains the age of sixty years, he is assessable at a certain rate per thousand, and no greater rate of assessment is specified after said age, the company cannot impose a greater assessment when the assured attains the age aforesaid.</p> <p>Where the defendant which issued the policy aforesaid is a foreign corporation and is sued by a policyholder, a resident of this State, for an injunction to restrain the collection of excessive assessments, the jurisdiction of the court is not raised by a demurrer to the complaint, but should be left to be determined when the plaintiff applies for judgment. Where the defendant, a foreign corporation, has been properly served with the complaint in such action the court has jurisdiction, and the question as to whether it will exercise it is one of discretion.</p>

Appeal by the plaintiff, Patrick H. G-albally, from so much of a judgment of the Supreme Court in favor of the defendant, Simon Strauss, entered in the office of the clerk of the county of New York on the 11th day of February, 1913, as dismisses the complaint as against said Simon Strauss, and also from an order entered in said clerk’s office on the 7th day of February, 1913, denying plaintiff’s motion for a new trial as against said Simon Strauss made upon the minutes.

Appeal by the defendant, Burr & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of November, 1912, denying defendant’s motion for a new trial made upon the minutes.

<p>Tax — rules governing the assessment of franchise tax of street railroad corporations.</p> <p>Certiorari to review the action of the State Board of Tax Commissioners in imposing a special franchise tax upon railroad companies subsidiary to the Metropolitan Street Railway Company. The franchises of the several companies were assessed against each severally and not as an entity against the Metropolitan Company, which was the parent and operating company. Evidence examined, and held, that the relators were'guilty of no unreasonable delay in furnishing reports to the State Board of Tax Commissioners so as to be deprived of their right to review • the assessment under the provisions of section 44 of the Tax Law. Held, further, that the reports were as full and detailed as it was possible for the relators to make them.</p> <p>Where the railroads in question had long been operated under normal conditions, such as were calculated to show them earning capacity, it was proper for the court to apply the net earnings rule and to ascertain the value of the intangible rights of the system as a whole and then</p> <p>■ apportion the aggregate among the constituent companies in proportion' to the value of their tangible property in the streets. And this is true, although an expert testified that it would be advisable to obtain a combination of capital to purchase the franchises;</p> <p>The privilege of operating local cars on theWilliamsburg bridge was granted by the city to the bridge operating company which was assessed for the special franchise. By agreement between the operating company and the city of New York, which had assigned to the Metropolitan railway and the Brooklyn Heights railroad, the two latter companies agreed to operate the cars and divide the profits and losses, guaranteeing a dividend to the operating company. The cars were actually operated by the Brooklyn Heights Company, which accounted to the receivers of the Metropolitan. The cars belonged to the operating company and the city owned the tracks. Held, that in assessing the franchise tax the expenses and income arising from the operation of the franchise should have been excluded.</p> <p>In determining whether a railroad company is to be allowed credit for depreciation in excess of amounts actually expended for renewals the rule laid down in People ex rel. Manhattan B. Co. v. Wood-bury (203 N. Y. 231) should be applied, although the decision of the Appellate Division in that ease (143 App. Div. 905) was unreversed when the ease was tried, if all evidence necessary to entitle the relator to the benefits of the law as declared in the later decision was introduced.</p> <p>The court should deduct from the income of the relators payments made to the city of New York on their franchises, consisting of percentages of gross earnings, rents for the use of streets, fees for car licenses or special ordinances and tolls paid for the use of the "Williamsburg bridge pursuant to the requirements of the several franchises. Such items were in the nature of taxes.</p> <p>Where a railroad company has acquired real property and used it for railroad purposes but has wholly or partially abandoned the same, a reasonable time should be allowed'the company to sell or to make some other disposition of it, and it is entitled in the meantime to an allowance for the full value of the property, especially where it continues to use a portion thereof for storage purposes.</p> <p>In assessing the special franchise tax of a railroad the court should allow the relator to include cash, prepaid insurance and accounts receivable as working capital, upon which the benefit of a return was allowed.</p> <p>The cost of taking up and relaying pavements is part of the initial cost of building a street railway within a city, and should be considered in arriving at the value of the tangible property upon which the company is entitled to a return. Moreover, the cost of renewing and keeping such pavement in repair is a proper item of cost of maintenance of the right of way, and as such chargeable to operating expenses. While the railroad does not own the pavement it does own the value of the labor and material incident thereto.</p> <p>In assessing the franchise tax of a street railroad'company it is not entitled to an allowance for the cost of removing pipes, cables and other underground structures beneath the area occupied by its tracks and formerly placed there when underground electric power was installed.</p> <p>Charges against operating expenses which became known only after the books for the period in question had been closed should not be allowed, as such omissions correct themselves from year to year.</p> <p>Where several railroads have been operated as a system and no separate account of their several earnings have been kept, it is proper for the court to apportion the total value of the tangible and intangible property of the whole system among the several companies in proportion to the value of their respective tangible properties.</p> <p>In assessing the special franchise of a street railroad the cost of corporate organization, obtaining franchises, consents, certificates, etc., together with engineering expenses and the expense of issuing and marketing securities and other intangible elements of expense should be excluded. Where a railroad company has ceased to use a portion of real property for railroad purposes, and a reasonable time within which to dispose of the same has elapsed—and, in the absence of evidence to the contrary, one year and eight months is a reasonable time — it should be charged with the reasonable value of the unused portions thereof.</p> <p>Initial franchise tax payments are made on account of the intangible franchise, and are presumably included in the value thereof, and, hence, should not be considered in valuing the tangible property of the railroad outside the streets used by it.</p>

<p>Appeal by the plaintiff, Royal Live Fish 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 8th day of July, 1912, upon a dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury at the New York Trial Term.</p>

Appeal by the plaintiff, Paul Nowak, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 26th day of February, 1913, 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 Erie Trial Term.

Appeal by the plaintiff, Mary R. Lewis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 17th day of January, 1913, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, Rutherfurd 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 20th day of January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, London Guarantee and Accident Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 6th day of November, 1912, upon the verdict of a jury rendered by direction of the court, both parties having moved for the direction of a verdict at the close of the case.

Appeal by the plaintiff, The Tweedie Trading Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of May, 1912, upon the 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 New York Trial Term.

Appeal by the defendants, Joseph 0. Conkling, individually and as administrator, etc., and others, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 14th day of April, 1913, amending a notice of appeal herein, filed in said clerk’s office on the 17th day of January, 1913, by striking therefrom the words “to the Court of Appeals ” and inserting in place thereof the words “ to the…

Appeal by the defendants, Frederic Gr. Dunham and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 3d óf August, 1912, upon the decision of the court after a trial at the Erie Special Term.

Appeal by the defendant, Sound Shore Front Improvement 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 February, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of February, 1912, denying defendant’s motion for a new trial made upon the minutes.

■ Appeal by the respondent, Thomas J. Higgins, as commissioner, 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, granting relator’s motion for a peremptory writ of mandamus.

Appeal by Edward F. Donovan, judgment debtor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 1913, denying his motion to vacate an order for his examination in proceedings supplementary to execution.

<p>Will—trust for benefit of incompetent—provision that beneficiary is only entitled to income if not living with her husband.</p> <p>Where a testator, knowing that his daughter had been adjudged incompetent and was confined in an asylum for the insane, left a portion of his property in trust, income to be paid for her use, “provided, however, and only payable only in ease my said daughter shall be a widow or shall not be living with her husband,” the gift is not illegal upon the theory that it offered a premium to her to live apart from her husband. It seems, that a legacy made on condition that the legatee live apart from her husband would be void as against public policy.</p>

Appeal by the defendant, James W. Dickinson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 25th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of April, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The German National Bank of Pittsburgh, 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 26th day of May, 1913, as resettled and amended by an order entered in the said clerk’s office on the 30th day of June, 1913.

Cross-appeals by the plaintiffs, Charles Sundstrom. and another, and by the defendant, The State of New York, from a judgment and determination of the Board of Claims, entered in the office of the clerk of said Board on the 25th day of March, 1913, awarding claimants the sum of $72,044.98, and disallowing certain other items claimed by them.

Appeal by the defendants, Michael J. Walsh, as Acting Comptroller, etc., and others, 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 30th day of June, 1913, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, Albert Pierce, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 15th day of April, 1913, upon the dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury at the Saratoga Trial Term, and also from an order entered in said clerk’s office on the same day dismissing the complaint and setting aside the verdict…

Appeal by the defendant, Ruggles-Robinson 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 26th day of December, 1912, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 11th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by James 0. Gropsey, district attorney, from an order of the Supreme Court, made at the Kings County Special Term arid entered in the office of the clerk of the county of Kings on the 16th day of September, 1913, granting a peremptory writ of mandamus.

<p>Appeal by the claimants, Frank V. Bishop and another, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of clerk of the county of Ulster on the 23d day of June, 1913, refusing confirmation of an award made to claimants of $7,250 by Business Damage Commission No. 1, Ashokan Reservoir, in their thirteenth separató report.</p>

Appeal by the defendant, John Walton, from a judgment of the County Court of Fulton county, rendered against him on the 7th day of June, 1912, convicting him of the crime of burglary in the third degree.

Appeal by the plaintiff, Dory Osterhoudt, from an order of the County Court of Ulster county, entered in the office of the clerk of said county on the 26th day of November, 1912, denying his motion to adjudge the defendant in contempt, to strike out its answer and for judgment in plaintiff’s favor as upon a default.

• Appeal by the defendant, Geo. W. Jackson, Inc., 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 21st day of November, 1912, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 9th day of December, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 10th 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 Jth day of February, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Carrie A. Eldred, from a judgment of the County Court of Queens county in favor of the defendant, The City of New York, entered in the office of the clerk of said county on the 29th day of January, 1913, upon a dismissal of the complaint as to the defendant, The City of New York, by direction of the court at the opening of the case.

Certiorari issued, out of the Supreme Court and attested on the 4th day of March, 1913, directed to Ehinelander Waldo, as police commissioner, etc., commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police force of the city of New York.

<p>Motion to confirm report of commissioners recommending that the proposed railroad as set forth should be constructed.</p>

<p>Motion to return record to Court of Special Sessions for correction.</p>

Appeal by the defendant, Franklin Fire Insurance Company of Philadelphia, Pennsylvania, from a judgment of the Supreme Court in favor of the defendant Daniel Crimmins, entered in the office of the clerk of the county of Herkimer on the 22d day of January, 1913, upon the decision of the court after a trial before the court without a jury, with notice of intention to bring up for review certain preliminary objections made at the opening of the trial.

Appeal by the plaintiff, Westmoreland Coal Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 20th day of August, 1912, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the defendant, The New York Central and Hudson Eiver Bailroad Company, from a judgment of the Court of Special Sessions of the City of New York, Part One, rendered against it on the 13th day of January, 1913, convicting it of a violation of section 181 of the Sanitary Code. (See Code of Ordinances of the City of New York, pt. 1, chap. 14.)

<p>Appeal by the defendants, Leo M. Klein and another, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 17th day of June, 1913, affirming a judgment of the City Court of the City of New York in plaintiff’s favor, and an order denying defendants’ motion for a new trial, and also from the order and judgment of the City Court of the City of New York, entered pursuant to the said order and determination of the Appellate Term.</p>

<p>Appeal by the defendant, Nathaniel W. Conkling, from part of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 11th day of March, 1913, upon the report of a referee.</p>

Appeal by the defendant, National Park Bank of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1913, denying defendant’s motion for judgment on the pleadings.

Appeal by the defendants, Max E. Schwalbe 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 Hew York on the 21st day of December, 1912, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendants, Bankers’ Land and Mortgage Corporation and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of February, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 14th day of February, 1913, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Pittsburg Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th 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 same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, E. Vail Watson, 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 10th day of April, 1912, upon the verdict of a jury, and also (as stated in the notice of appeal) from an order denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Carter & Weekes Stevedoring 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 12th day of March, 1918, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on or about the 13th day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brunswick-Balke-Collender Oompany of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of February, 1913, upon the decision of the court after a trial before the court at the New York Trial Term, a jury having been waived.

■ Appeal by the plaintiff, American Woolen Company of New York, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of March, 1913, reversing a judgment of the City Court of the City of New York in plaintiff’s favor and an order which denied defendants’ motion for a new trial.

<p>• Malicious prosecution — when action lies — institution of criminal prosecution — issuance of warrant not necessary.</p> <p>The application to a magistrate for a summons on a criminal charge, made maliciously and without reasonable or probable cause, and the issuance and service of a summons thereon, pursuant to section 82 of chapter 659 of the Laws of 1910, is the institution of a criminal prosecution, and, upon a dismissal thereof, after investigation by the corut, an action for malicious prosecution will lie, although no warrant was issued. Hotchkiss, J., dissented.</p>

Appeal by the plaintiff, Louis Casper, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of February, 1913, reversing a judgment of the City Court of the City of New York in plaintiff’s favor, and also from the judgment of the City Court of the City of New York, entered pursuant to said order and determination of the Appellate Term.

<p>Contract — written contract for sale of automobile stating horse power — breach of parol warranty as to excess power.</p> <p>Where a written contract for the sale of an automobile was explicit and unambiguous as to the horse power of the chassis to be used, the purchaser cannot, in the absence of fraud or deceit, recover for the breach of an alleged oral warranty by the vendor that the motor would develop greater horse power.</p> <p>Parol testimony to prove a warranty as to present quality, condition or power of a thing sold is inadmissible in the face of a written contract which upon inspection is complete in that it contains all the terms and conditions necessary to a complete agreement.</p>

Appeal by the defendant, Park Row 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 11th day of November, 1912, upon the verdict of a jury for $2,750, and also from an order entered in said clerk’s office on the 12th day of November, 1912, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Queens County Water Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of May, 1913, affirming a judgment of the Municipal Court of the City of New York in plaintiff’s favor, and an order denying defendant’s motion for a new trial.</p>

Appeal by the plaintiff, Gouverneur M. Camochan, 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 25th day of July, 1911, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the petitioners, Christ Church of Bay Ridge and David Porter, from two orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of February, 1913, denying motions for the taxation of costs.

Appeal by the defendants, Harry Wolf and another, from a judgment of the Supreme Court in favor of the plain-' tiff, entered in the office of the clerk of the county of New York on the 18th day of December, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 2d day of January, 1913, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Harry Wolf and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of December, 1912, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 2d day of January, 1913, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, John F. Gallagher 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 12th day of July, 1913, granting an injunction pendente lite.

Appeal by the defendant, North Packing and Provision Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of August, 1913, denying a motion to set aside the service of a summons.

Cross-appeals by the plaintiff, Jeannette Demuth, and the defendants, George Kemp and Arthur T. Kemp and others, as trustees, from two judgments of the Supreme Court, entered in the office of the clerk of the county of New York on the 1st day of May, 1913, upon the decision of the court after a trial at the New York Special Term.

<p>Eminent domain — condemnation of dock property, city of Hew York — interest on award.</p> <p>An owner of docks in the city of Hew York whose property has been condemned by the city under section 824 of the charter is entitled only to simple interest from the date upon which the title vested in the city, which is four months after the filing of the oaths of the commissioners of estimate. He is not entitled to add the interest to the award to the date of the confirmation of the report of the commissioners and to interest on the sum total from that date, thus compounding the interest.</p> <p>While the interest upon the value of the property taken which accrues between the date of vesting of title and the confirmation of the report of the commissioners is part of the compensation to the owner, the interest which accrues thereafter is in the nature of a penalty for nonpayment, and the owner in order to be entitled thereto must make a demand upon the comptroller as required by section 1001 of the city charter.</p>

Appeal by the defendant, William Woop, 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 18th day of June, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 16th day of June, 1913, .denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Eva K. Conlon, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York bn the 11th day of July, 1911, upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the defendant, Cunard Steamship Company, Limited, 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 30th day of September, 1913, granting a motion for a bill of particulars.

Appeal by the defendant, Rockland County, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of April, 1913, granting plaintiff’s motion for judgment on the pleadings, with leave to answer within twenty days on payment of costs.

Appeal by the defendant, The Jefferson Bank, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the lYth day of June, 1913, affirming a judgment of the City Court of the City of New York in plaintiffs’ favor, and an order denying defendant’s motion for a new trial.

Appeal by the plaintiff, The People of the State of New York, from an order of the County Court of Westchester county, entered in the office of - the clerk of said county on the 29th day of June, 1912.

Appeal by defendant, John P. Whittley, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the 'county of Ulster on the 23d day of August, 1913, granting temporary possession to the plaintiff, under section 3380 of the Code of Civil Procedure, of premises sought to be condemned.

Reargument of an 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 the 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…

<p>Master and servant—contract for yearly hiring — novation—proviso that employee may be discharged on thirty days’ notice.</p> <p>The plaintiff was originally employed by a copartnership under a contract for a yearly hiring. Some years later the partnership business was incorporated and the plaintiff received a letter from the corporation which merely fixed the rate of his compensation and stated that employees could be discharged on thirty days’ notice, or on the payment of thirty days’ advance salary.</p> <p>Subsequently the plaintiff was discharged.</p> <p>Held, that even if he were discharged without cause, he could not recover on the basis of a breach of a yearly contract of employment, but at the most was only entitled to an extra month’s salary.</p> <p>Dowlihu, J., dissented.</p>

<p>Appeal by the plaintiff, Walter Schultze, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 11th day of April, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

Appeal by the defendant, Theodore Kosloff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of February, 1913, upon the verdict of a jury, 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 Henry B. Singer, as receiver, 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 September, 1913, denying his application for an order fixing the rental value of certain property.

Appeal by the plaintiff, The Traitel Marble Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of June, 1913, affirming a judgment of the City Court of the City of New York dismissing the complaint.

<p>Appeal by the defendants, Ardolph L. Kline and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 9th day of October, 1913, granting relator’s motion for a peremptory writ of mandamus.</p>

Appeal by the defendant, T. Hogan & Sons, Inc., 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 15th day of January, 1913, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 21st day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Law Union and Rock Insurance Company, Limited, 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 9th day of April, 1913, upon the decision of the court, a jury having been waived.

Appeal by the defendant, Frederick W. Parker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — injury to employee while working in elevator shaft — failure of elevatorman to warn employee — contributory negligence — evidence.</p> <p>, In an action to recover for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant’s servant in operating an elevator, it appeared that the deceased was employed by contractors engaged by the defendant to install fireproof partitions in elevator shafts. The contractors had arranged with the engineer and elevator operator that the car itself should be used as a platform or scaffold for the men when obliged to work within the shafting. Shortly before the accident, a call came for the elevator to go to a lower floor, and by direction of the operator the decedent and his fellow-worker left the top of the car which they were using as a scaffold, and landed on the seventh floor, the operator saying that he would return shortly. He was detained for about half an hour, and when he started the car up the counterweights descended and caught the deceased who. was standing wholly or partly on an iron beam running across the elevator shaft at the floor level. It is claimed that the operator was negligent in failing to give warning before he started his car. It did not appear that the deceased was required by any work on which he was engaged to stand on the iron beam where he was injured.</p> <p>Evidence examined, and held, insufficient to establish either the negligence of the defendant or the decedent’s freedom from contributory negligence.</p> <p>Lau&hliít and Hotchkiss, JJ., dissented.</p>

<p>Appeal by the defendant, Waterbury 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 18th 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 26th day of March, 1913, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Ernest Ontra, from part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day of May, 1913.

<p>Pleading — counterclaim — designating new matter as defense and counterclaim — failure to reply.</p> <p>Where, in a suit to foreclose a mortgage, the defendants introduced their plea that the mortgage was the result of an usurious transaction, with the words “and as a separate and distinct defense and counterclaim thereto allege,” etc., and demanded affirmative relief, and the plaintiff did not reply, the new matter denominated as a counterclaim should have been treated as such, and defendant’s motion for judgment thereon granted.</p>

Appeal by the defendant, Central New England 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 Dutchess on the 25th day of May, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Sardius D. Bentley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 1st day of November, 1911, upon the decision of the court, a jury having been waived.

Appeal by the defendant, York 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 Cayuga on the 21st day of December, 1912, upon a decision of the court after a trial at the Cayuga Special Term.

Certiorari issued out of the Supreme Court and attested on the 27th day of February, 1913, directed to the Public Service Commission of the State of New York for the Second District commanding the commissioners to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in directing the relator to cease on or before March 1, 1913, from charging the increased rates of fare for one-way and commutation passenger service which…

Certiorari issued out of the Supreme Court and attested on the 27th day of February, 1913, directed to Public Service Commission of the Second District of the State of New York, commanding the Commissioners to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in fixing the rates and charges for commutation and other passenger tickets to be charged by the relator for three years from March 1, 1913, between the G-rand…

Appeal by the plaintiff, Granulator Soap Company, and American Surety Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of June, 1913, confirming the report of a referee appointed to take proofs and to ascertain the damage sustained by reason of an injunction.

Appeal by the defendants, The Brooklyn Heights Bailroad Company and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of November, 1912, appointing commissioners to ascertain and determine the compensation to be made by plaintiff to the defendants for the intersections and connections mentioned in the petition herein, and the line or lines, grade or grades, points or…

Appeal by the plaintiff, Giovanni Scaglione, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 26th day of June, 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 same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles L. Wise, from an order of the Supreme Court, made at Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of October, 1913, denying the defendant’s motion to frame issues* of adultery for trial by jury.

<p>Pleading — action against master under Labor Law — bill of particulars — affirmative defenses of contributory negligence and assumption of risk.</p> <p>Where in an action under the Labor Law brought by a servant against ■his master to recover for personal injuries alleged to have been caused by negligence, the defendant, after denying the material allegations of the complaint, charges that the plaintiff was guilty of contributory negligence and assumed the risks incident to his employment, the court, in its discretion, may require the defendant to give a bill of particulars of the affirmative defenses aforesaid.</p> <p>Since the enactment of section 2 of chapter 352 of the Laws of 1910, the burden of proving that a servant was guilty of contributory negligence is placed upon the master; that is to say, it is an affirmative defense.</p>

<p>Appeal by the plaintiff, Dill & Collins Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 11th day of June, 1913, upon the decision of the court after a trial at the Yew York Trial Term, a jury having been waived, and also, as stated in the notice of appeal, from the decision rendered by the court.</p>

Appeal by the defendant, Beed 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 Erie on the 11th day of August, 1913, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the defendant, Lake Shore and Michigan Southern Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 13th day of June, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p> <p>Plaintiff’s intestate was killed at about one-thirty o’clock in the morning on April 7, 1912, at the Lion street crossing of defendant’s railway tracks in the city of Dunkirk, having been struck while attempting to pass over the crossing on foot by one of defendant’s fast passenger trains called the Twentieth Century Limited. Lion street is one of the principal business streets of Dunkirk. The railway crossing is protected by gates on each side, and there are five tracks running east and west across Lion street, which runs north and south.</p> <p>Deceased, with his companion Nelson, undertook to pass over the crossing from the north to the south side, along the sidewalk on the easterly side of Lion street. The first two tracks on the north side are sidings and not used for through trains, either passenger or freight. The third track is the westbound track of defendant’s main line, and the train which struck and killed plaintiff’s intestate was running west on this track. The fourth track .is used for defendant’s east-hound trains, and the fifth track is another siding. The distance from the north rail of the west-hound track on which deceased was struck to the. northerly curb line of Third street, which crosses Lion street at right angles, is fifty feet, and the distance between the north rail of the west-bound track and the south rail of the siding track immediately north of it is twelve and one-half feet. The two main line tracks are straight toward the east for about seventeen hundred feet. The tracks on the two north sidings were not occupied with standing cars east of Lion street, nor were there any cars or engines moving on either of these sidings at the time of the accident, or during the time that deceased and his associate were attempting to pass over the crossing.</p> <p>One of the disputed questions of fact is as to whether deceased and Nelson passed onto the crossing around the gate after it was lowered, as was defendant’s contention, or whether the gate was lowered after they had proceeded onto the crossing and were at a point midway between the first and second sidings, as was plaintiff’s contention, and as plaintiff’s witnesses Nelson and Bartos testified.</p> <p>According to their testimony, when deceased and Nelson were between the two sidings, the gates came down, and Nelson says that he and deceased then looked around and saw them go down; that at that time a long freight train was approaching the crossing from the west on the east-bound track, being the fourth track from the north side of the crossing, and that they stood between the first and second siding tracks about two minutes while this freight train was proceeding east over the crossing, and that when about two cars of the freight train remained to pass, they started on south walking slowly. They stopped again about nine feet north of the west-bound track. At that time the freight train had not entirely cleared the crossing, and as the caboose of the freight train was coming onto the crossing they started, walked slowly four or five feet, and were struck by the engine of the “ Twentieth Century Limited ” moving west on the third track, being the track between where they last stopped and the east-bound track on which the freight train was running. At the time they were struck the freight train had not yet cleared the crossing. Nelson testifies that both he and Hatch looked to the east and to the west, but neither discovered the approach of the “Twentieth Century Limited” on the east, although it ran over a straight track for at least seventeen hundred feet in full view from where they stood, with nothing to interfere with their view except the darkness and the absence or dimness of the headlight. Hatch was proceeding some in advance of Nelson, who, at the last moment discovering the approach of the engine, attempted to seize hold of Hatch and draw him back, without success. Hatch was killed and Nelson was injured and has an action pending against defendant on that account.</p> <p>The grounds of negligence left to the jury were the absence of warning signal by bell or whistle, the absence or dimness of the headlight, and the speed of the train, variously estimated by the witnesses at from twenty-five to fifty or sixty miles an hour. An ordinance of the city of Dunkirk prohibited the blowing of whistles within the city limits at this time of night. There was conflict in the evidence as to whether the bell was rung. There were switch and signal lights along the tracks to the east from the crossing, which plaintiff claims rendered it difficult to identify the locomotive headlight, if dim, and distinguish it from the other lights.</p> <p>The evidence upon the question of defendant’s negligence and the alleged contributory negligence of deceased was not materially different upon this trial than upon the previous trial, which was reviewed in this court (Hatch v. L. S. & M. S. R. Co., 156 App. Div. 394), except that upon this trial evidence was given by private detectives employed by defendant since the first trial tending to show that plaintiff’s witness Nelson had admitted to them that his testimony upon the first trial as to the care and caution used by deceased and himself in attempting to pass over this crossing was false.</p> <p>Deceased was a police officer and had been employed for nearly a year prior to his death as a nightwatchman by the owners of the buildings in the vicinity of this railroad crossing. He was familiar with the crossing and its surroundings and the uses made of the several tracks and the operation of defendant’s railroad at that point.</p>

Appeal by the defendants, Casper Schuster and another, 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 25th day of June, 1918, denying said defendants’ motion for judgment on the pleadings.

Appeal by the defendants, F. Park Lewis and others, constituting the board of managers, etc., 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 Q-enesee on the 11th day of September, 1913, granting a peremptory writ of mandamus.

<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 New York Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 21st day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1912, denying defendant’s motion for a new trial made upon the minutes.

<p>Mortgage — foreclosure — duty to produce bond when principal security — evidence.</p> <p>Where in a suit for foreclosure it appears by the terms of the mortgage and is also alleged in the complaint that the bond is the principal security and the mortgage only collateral thereto, the plaintiff must either produce the bond or satisfactorily account for his failure to do so.</p> <p>Where, under such circumstances, the plaintiff fails to produce the bond on the trial, and his only explanation is that it is not in his possession, and that some years ago he delivered it with the mortgage to his attorney, a judgment in his favor should be reversed.</p>

<p>Attachment — action against foreign corporation upon certified checks — sufficiency of affidavit.</p> <p>Where in an action by an assignee of certified cheeks against a foreign corporation the allegations of the complaint are stated as of the personal knowledge of the plaintiff and it is duly verified, an affidavit of the plaintiff for a warrant of attachment which states that the defendant is a foreign corporation, etc., that there is a certain amount now due and owing to the plaintiff from the defendant over and above all counterclaims known to the plaintiff, and then relates the certification and assignment of the checks, and has attached a telegram from the foreign State department of banking that the defendant is a foreign corporation, is sufficient and an order vacating the warrant should be reversed.</p>

<p>Appeal by the Montefiore Home, 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 15th day of August, 1913, denying a motion for the issuance of a writ of mandamus to compel the cancellation and discharge of a municipal assessment upon real property.</p>

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of April, 1913, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 24th day of April, Í913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Twisted Wire and Steel Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of June, 1913, overruling separate demurrers to the amended complaint.

Appeal by the claimants, John 0. Heintz and another, owners of damage parcel No. 3, 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 30th day of October, 1911, confirming the report of commissioners of estimate and assessment.

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

<p>Appeal by the defendants, William Salomon 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 10th day of October, 1913, resettling a prior order denying defendants’ motion to strike from the complaint certain allegations as irrelevant, immaterial and redundant, and to make certain other allegations more definite and certain.</p>

Appeal by the defendants, William Salomon 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 3d day of November, 1913, resettling a prior order denying a motion to strike from the complaint certain allegations as irrelevant, immaterial and redundant, and to make certain other allegations more definite and certain.

Appeal by the defendant, United States Title Guaranty and Indemnity Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Underpinning and Foundation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of 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 defendants, Thomas A. Reilly and another, from a judgment of the Supreme Court in .favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th 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 27th day of December, 1912, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Abner M. Harper, Inc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 4th day of March, 1913, upon the decision of the court after a trial at the Orange Special Term.

Appeal by the defendant, Isaac Portman, from a judgment of the County Court of Kings county, rendered against him on the 13th day of May, 1913, convicting him of the crime of bigamy.

Appeal by the defendant, 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 Hew York on the 13th 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 30th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The White Company, from a judgment of the Supreme Court in its favor, entered in the office of the clerk of the county of New York on the 21st day of July, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of June, 1913, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ferdinand Straus, 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 August, 1912, denying the plaintiff’s motion for judgment on the pleadings and sustaining a demurrer to the complaint.

Appeal by the plaintiff, The New Thought Church, 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 August, 1913, denying a motion for an injunction pendente lite.

Appeal by the plaintiff, Foster Milliken, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of July, 1913, as resettled by an order entered in said clerk’s office on the 24th day of July, 1913, sustaining a demurrer to the complaint.

Appeal by the plaintiff, Otto L. Spannhake, Inc., from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of November, 1912, as resettled by an order entered in said clerk’s office on the 13th day of December, 1912, modifying a judgment of the City Court of the City of New York in plaintiff’s favor and affirming it as modified.

<p>Appeal — preparation of case — when respondent entitled to amendment inserting evidence.</p> <p>Where the defendant excepts to a large number of findings made upon a trial before the court upon the ground “that there is no evidence to support the findings of fact or any of them,” he gives notice to the plaintiff that he intends to argue these exceptions as errors of law and the latter is entitled to amend the proposed case on appeal so as to include the evidence, although the appeal has been taken under section 998 of the Code of Civil Procedure. ■</p> <p>Section 994 of the Code of Civil Procedure applies only to cases in which the appellant confines himself to exceptions to the conclusions of law found by the trial court.</p>

<p>Parties'— when defendant not entitled to have another joined as plaintiff— when new plaintiff cannot be substituted or joined under section 756 of the Code of Civil Procedure.</p> <p>Where, in an action by a firm to recover moneys alleged to have been used by their agent, without authority, to speculate in stock through the defendants as brokers, with knowledge of the latter, the defendants learn for the first time during the trial that the plaintiffs have made a composition agreement with certain creditors, and have assigned this and other causes of action to trustees to receive and distribute the proceeds, they are not entitled either under section 453 or 756 of the Code of Civil Procedure, to have the trustees joined as parties plaintiff.</p> <p>It seems, that a new plaintiff cannot be substituted or even joined with the original plaintiff under section 756 of the Code of Civil Procedure, upon the application of the defendant, in opposition to the original plaintiff and the person sought to be substituted or joined.</p>

<p>Negligence—injury to boy by stepping into pail of hot cement in street — evidence insufficient to establish negligence of defendant.</p> <p>Action to recover for personal injuries sustained by a boy who, while playing ball, stepped backward from the sidewalk into a pail of hot cement, which was being used by the defendant in repairing an asphalt pavement.</p> <p>Evidence examined, and held, insufficient to establish the negligence of the defendant.</p> <p>Dowling, J., dissented.</p>

<p>Execution—Municipal Court, of City of New York—jurisdiction of action to enforce execution against salary.</p> <p>Where, after a judgment has been recovered in the Municipal Court of the City of New York, and the employer of the judgment debtor has failed to comply with an order of the Supreme Court obtained under section 1391 of the Code of Civil Procedure, directing him to withhold ten per cent from the salary of the defendant, the Municipal Court has jurisdiction of an action against such employer to recover such amount.</p>

<p>Pleading — sufficiency of complaint in action for services.</p> <p>A complaint in an action to recover for services rendered, which alleges that the plaintiff was employed under a contract containing an agreement to pay a specified sum; that he actually performed the services, and that defendants have failed to pay therefor, is sufficient, if unanswered, to entitle plaintiff to j udgment.</p>

Appeal by the defendant, The National City Bank of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1913, overruling a demurrer to the complaint. The demurrer was made on the ground that’ the complaint did not state facts sufficient to constitute a cause of action.

Appeal by the defendant, Ann Fitzgerald, 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 October, 1913, denying defendant’s motion for a change of venue.

Appeal by the defendant, James Barry, 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 July, 1913, denying appellant’s motion to direct the clerk of the county of New York to satisfy a certain judgment and to restrain the sheriff from making further collections under an execution issued thereon pursuant to section 1391 of the Code of Civil Procedure and to compel him to…

Appeal by the defendant, A1 Bassett, 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 September, 1913, granting plaintiff’s motion for judgment on the pleadings.

<p>Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk'of the county of New York on the 24th day of May, 1913, upon the verdict of a jury for $6,000, 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.</p>

<p>Appeal by the plaintiff, Cream of Wheat Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of November, 1913, denying the plaintiff’s motion for an inspection of defendant’s books of account.</p>

Appeal by the plaintiff, the Cream of Wheat Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1913, denying a motion for the extension of time to serve the complaint.

<p>Appeal by the plaintiff, Therese Hynds, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 4th day of December, 1912, upon a dismissal of the complaint at the close of the case by direction of the court on a trial before the court and a jury at the Hew York Trial Term.</p>

<p>Process — service of summons upon director of foreign corporation — when cause of action arose within this State within the meaning of section 433 of the Code of Civil Procedure.</p> <p>A cause of action by a receiver, based upon a wrongful and fraudulent scheme by a director and president of a New York corporation by and with the incorporation of two other New York corporations, to deprive the first corporation of its property rights, in performance of which he caused a foreign corporation to be formed, to which he assigned the first corporation’s property rights, so that upon the strength of those rights the foreign corporation mortgaged them to another New York corporation, may be held to have arisen within this State within the meaning of section 432 of the Code of Civil Procedure, so as to make service of a summons upon a director of the foreign corporation valid.</p>

Appeal by the defendants, Adrian H. Joline and another, as receivers, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 12th day of March, 1913, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 24th day of April, 1913, denying the defendants’ motion for a new trial made upon the minutes.

Motion to remove one of the official referees as the official referee to whom this proceeding was referred by an order entered October 17, 1913.

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of Special Sessions of the City of New York, Part One, Borough of Manhattan, entered in the office of the clerk of said court on the 14th day of July, 1913, allowing a demurrer to an information charging defendant with a violation of section 181 of the Sanitary Code. (See Code of Ordinances of the City of New York, pt. 1, chap. 14.)

Appeal by the defendant, Progressive Construction and Leasing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1913, dismissing the defendant’s counterclaim, with costs, and also from the final judgment entered in said clerk’s office on the 26th day of February, 1913, pursuant to said order, as said judgment was resettled and amended by an order entered…

Appeal by the defendant, The American Security and Trust Company, as executor and trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of August, 1913, denying its motion to vacate the service of the summons.

Separate appeals by the legatees, Charles L. Buchanan and J. Roderick Buchanan and by the legatee, Adelaide Buchanan Baldwin, from parts of a decree of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 24th day of June, 1913, distributing the fund bequeathed by the 10th paragraph of the will of William Buchanan, deceased, and apportioning a transfer tax as aforesaid.

Appeal by the plaintiff, Harry B. Chalmers, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of July, 1913, as amended by an order entered in said clerk’s office on the 8th day of July, 1913. The order appealed from sustained a demurrer jointly interposed by the respondents to the second amended complaint.

<p>Certiorari issued out of the Supreme Court and attested on the 22d day of July, 1913, directed to Joseph P. Hennessy and others, composing the board of assessors of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in dismissing the claim of the relators for damages, filed pursuant to the provisions of chapter 423 of the Laws of 1903, as amended by chapter 634 of the Laws of 1905.</p>

Appeal by the defendant, Leonard Ruoff, as clerk, 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 Queens on the 26th day of June, 1913, granting an application for a peremptory writ of mandamus requiring the appellant to record a certificate of satisfaction of a mortgage and cancel and discharge the said mortgage of record.

Appeal by the plaintiff, Clara Shiffner, from, an order of the Supreme Court, made at the Orange County Special Term and entered in the office of the clerk of the county of Orange on the 26th day of April, 1913, as resettled by an order entered in said clerk’s office on the 6th day of June, 1913, and also from an order entered in said clerk’s office on the 26th day of April, 1913, purporting to amend and resettle an order entered therein on the 1st day of August, 1912.

Appeal by the Gem. City and Long Island Realty Company from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings, and bearing date the 23d day of May, 1913.

Appeal by the defendant, A. Fred Silverstone, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1913, denying his motion to require plaintiff to make the complaint more definite and certain.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1913, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 12th day of April, 1913, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Hudson and Manhattan Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of May, 1913, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 29th day óf May, 1913, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Catherine Haverty, as administratrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of November, 1912, upon the verdict of a jury rendered by direction of the court, and also from, an order entered in said clerk’s office on the 24th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the Town of Orleans, Barnstable County, Massachusetts, from a decree of the Surrogate’s Court of the county of Hew York, entered in said surrogate’s office on the 16th day of June, 1913, settling the accounts of the executors herein.

Appeal by the plaintiff, Wrightsville Hardware Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 19th day of February, 1913, upon the decision of the court dismissing the complaint after a trial at the Hew York Special Term.

<p>Municipal corporations — certiorari to review proceedings of police commissioner of the city of New York, removing patrolman — evidence insufficient to sustain charge.</p> <p>Certiorari to review the proceedings of the police commissioner of the city of New York in removing a patrolman on a charge of having assisted in feloniously obtaining money.</p> <p>Evidence examined, and held, insufficient to sustain the charge, and that the proceedings should be annulled and the relator reinstated. .</p>

Appeal by the petitioners, Lena Scheier and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of August, 1913, denying their motion to vacate and cancel a notice of lien filed by one Arthur H. Wadick, deceased, on the 2d day of January, 1907, and another by his executrix, who is the respondent herein, on the 15th day of July, 1912, with the comptroller of the city of…

Appeal by the defendant, New York Dock 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 25th day of February, 1913, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

<p>Master and servant—negligence — injury to electrician employed on vessel by falling through open hatch — evidence — contributory negligence.</p> <p>In an action by an electrician to recover for injuries sustained by falling through an open hatch in the floor of a coal bunker in a steamship owned by the defendant, it appeared that the plaintiff, who was familiar with the construction of steamships and who had been supplied with a sufficient number of lamps, while returning to his work either fell into a hole near which a lantern was standing or a hole distant a few feet therefrom. Evidence examined, and held, that the complaint should be dismissed upon the ground that the plaintiff was guilty of contributory negligence as a matter of law.</p>

Appeal by the defendant, Great Eastern Casualty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of July, 1913, denying defendant’s motion for a further and additional bill of particulars.

Appeal by the defendant, International Agricultural Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1913, sustaining a demurrer to a separate defense set up in the answer, and also from an order entered in said clerk’s office on the 28th day of November, 1913, denying the defendant’s motion to resettle the first order by granting leave to plead…

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 34th day of June, 1913, granting an injunction pendente lite.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Hew York county clerk’s office on the 3d day of January, 1913, upon the verdict of a jury, and also from an order entered on the 13th day of January, 1913, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Coxxrt, entered in the New York county clerk’s office on the 15th day of January, 1913, upon the verdict of a jury for $2,000, and also from an order entered on the 16th day of January, 1913, denying a motion for a new trial in an action by an employee to recover damages, alleging negligence.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 5th day of May, 1918, sustaining a demurrer to the complaint.</p>

Appeal by defendant from an order of the Supreme Court, entered in the New York county clerk’s office July 1, 1913, denying a motion to vacate a prior order.

Appeals from orders of the Supreme Court, as resettled by orders entered in the New York county clerk’s office on the 14th day of August, 1913, for discovery.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 17th day of September, 1913, granting an injunction pendente lite.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office denying a motion to strike out certain allegations of the complaint and to make other allegations more definite and certain.</p>

Appeal by defendant from an order of the Supreme Court, dated June 24, 1913, and entered in the New York county clerk’s office, resettling a prior order, and granting an extension of time upon conditions.

<p>Appeal from a judgment of the Supreme Court in favor of plaintiff, entered in the New York county clerk’s office on the 5th day of December, 1912, and also from an order entered on the 18th day of December, 1912, denying a motion for a new trial.</p>

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

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 9th day of August, 1918, directing that the issues raised by the separate defense and counterclaim be tried at Special Term and the remaining issues at Trial Term, and granting stay pending trial of issues at Special Term.</p>

<p>Charges against an attorney of professional misconduct.</p>

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

<p>Appeal from an order of the Supreme Court, entered in-the New York county clerk’s office on the 17th day of June, 1913, denying plaintiff’s motion to make the complaint more definite and certain.</p>

Appeals from orders of the Supreme Court, entered in the office of the clerk of the county of New York on August 30 and October 3, 1913, denying motions for injunctions pendente lite. Orders affirmed, with ten dollars costs and disbursements in each case, on opinion of Seabury, J., at Special Term. (Reported in 83 Mise. Rep. 94.) Present — Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.; Ingraham, P. J., and Scott, J., dissenting, in opinions.

Appeals from orders of the Supreme Court, entered in the office of the clerk of the county of New York denying motions to continue injunctions pendente lite. Order affirmed, with ten dollars costs and disbursements in each case, on opinion of Seabury, J., at Special Term. (Reported in 83 Mise. Rep. 94.) Present — Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ. Scott, J., dissented.

<p>Appeal from a judgment entered on a verdict and from an order denying a motion for a new trial.</p>

<p>Appeal from order, entered in the office of the clerk of the county of Hew York, granting defendants permission to examine certain books, papers, documents and property belonging to and in the possession of the plaintiff.</p>

<p>Appeal from an order granting a judgment on the pleadings..</p>

Appeal by the defendants from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of October, 1913, granting a preliminary injunction.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 28th day of March, 1913, in favor of the plaintiff, and from an order entered in said clerk’s office on the 26th day of April, 1913, and from said order as resettled by an order entered in said clerk’s office on the 7th day of May, 1913, denying a motion for a new trial.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 8th day of February, 1913, in favor of the plaintiff, and from an order entered in said clerk’s office on the 10th day of February, 1913, denying a motion for a new trial.

Appeal by the Scarsdale Company from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Westchester on the 6th day of September, 1913, denying its motion to direct the county treasurer of Westchester county to pay to said Scarsdale Company the sum of $2,684.99 with interest, etc.

<p>Appeal by the Scarsdale Company from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Westchester on the 6th day of September, 1913, denying its motion to direct the county treasurer of Westchester county to pay to said Scarsdale Company the sum of $2,684.99 with interest, etc.</p>

Appeal by the defendant, The State of New York, from a determination of the Board of Claims, entered in the office of the clerk of said board on the 37th day of February, 1913, awarding the claimant the sum of $385.50 damages for injuries to a horse and wagon.

Appeal by the Orange County Trust Company, as surviving executor and trustee under the last will and testament of Polly L. Martin, deceased, from so much of the final decree of the Surrogate’s Court of Delaware county, entered in said Surrogate’s Court on the 26th day of February, 1912, as directs the payment to Williams & Conlon, claimants, of the sum of $206.76 in full of all claims against the estate of the decedent, and the sum of $250 for costs and allowances.