Volume 16 — New York Appellate Division Reports

<p>Negligence — collision between a railroad train and a wagon negligently driven— injury to a person waiting to take a train — defect in a railroad crossing —weight of negative testimony as to the presence of a flagman, as against positive testimony — excessive verdict.</p> <p>In an action brought to recover damages for the death of the plaintiff’s intestate, resulting from the alleged negligence of the defendants, a railroad corporation and a brewery company, it appeared that, while the plaintiff’s intestate was waiting' upon a railroad platform to take a way train, the acting driver of a brewery wagon, who had been driving parallel to the tracks, turned to pass over the tracks at a crossing adjacent to the platform when about 750 feet from a rapidly approaching through train which did not stop at the platform. In the collision which followed-the plaintiff’s intestate was struck and killed by some hogsheads which formed part of the contents of the wagon.</p> <p>The headlight in the engine attached to the train was lighted and was plainly visible to any one who looked in that direction, and there was evidence which would authorize the jury to find that the driver started to cross the. tracks without taking any precaution or endeavoring to inform himself of the existing conditions which were plainly visible.</p> <p>Held, that the question whether the negligence of the brewery company owning the wagon was not the proximate cause of the accident was properly submitted to the jury, but that a verdict should have been directed in favor of the railroad company;</p> <p>That no charge of negligence on the part of the railroad company could be based upon the fact that the plank which formed the- approach to the crossing-in question was raised above the ground about the thickness of the plank itself and that the right hind wheel of the wagon caught upon it, as, the soil at that place being composed of loose sand, extraordinary care would hardly suffice to “keep 'thé surface of the ground even with the plank, and for the further reason that ceaseless vigilance in precaution could scarcely foresee that an accident would happen from such a cause.</p> <p>Testimony of two witnesses to the effect that they did not see a flagman at a crossing - will not avail against the positive testimony -of six witnesses who testify that'they did see him. 1</p> <p>Qucere, - as to whether the absence of the flagman from the crossing, if such were the fact, would be a proximate cause of the accident.</p> <p>It appeared that the plaintiff’s intestate was fifty-three years of age, in good health and earned two dollars-and fifty cents per day.</p> <p>Held, that a verdict for $10,000 was excessive,, and should be reduced to $7,500.</p>

Appeal by,the plaintiff, Charles R. Grannan, 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 20th day of January, 1897, denying his motion to continue an injunction pendente lite.

Appeal by the defendant, the Nassau .Electric 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 Kings on the 23d day of November, 1896, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 23d day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Sarah M. Marvin and Fanny V. N. Ramsdell, individually and as executors and trustees, etc., of John J. Van Nostrand, deceased, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 30th day of November, 1896, upon the report of a referee as adjudges as follows: “ And in case said Fanny Van Nostrand Ramsdell dies without lawful descendants her…

<p>Executor and administrator — a surrogate .may, upon a judicial settlement, direct payment of an undisputed established claim — silence upon the part of an executor after presentation, of a claim does not establish it.</p> <p>In a proceeding for a judicial settlement of an executor’s accounts, instituted under section 3727 of the Code of Civil Procedure, the surrogate has power to direct payment of an undisputed established claim.</p> <p>In such a proceeding an executor may dispute the validity of a claim against the estate, and, if it is properly disputed, the surrogate has not jurisdiction to determine as to its validity.</p> <p>Mere silence upon the part of an executor, to whom a claim against the estate he represents has been presented, does not relieve the claimant from the necessity of establishing it by evidence, if it is afterwards disputed by the executor.</p> <p>Appeal by Wilhelmina Clauss (now Schickling), as executrix, etc., ■of Christian Clauss, deceased^. from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 9th day of November, 1896, directing her to pay to Henry A. Yieu, a creditor of the decedent, a sum of $290.70 and costs.</p>

<p>Appeal by the defendant, Margaret Hogan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 23d day of Hovembes, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

Appeal by the defendant, Alexander J. Dodin, from .so much of an interlocutory judgment of the Supreme Court in favor of the defendant Josephine Dodin, entered in the office of the clerk of the county of Rew York on the 28th day of September, 1896, upon the decision of the court rendered after a trial at the Rew York Special Term,.as adjudges and declares that the defendants Alexander J. Dodin and Josephine Dodin are the only heirs at law of Mansury P. Dodin, deceased, and,…

Appeal by the defendant, Daniel E. Sickles, sheriff of the city and county of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th day of July, 1896, upon the decision of the court, rendered after a trial at the New York Special Term, awarding the plaintiffs the sum of $7,349.65, principal and costs. This appeal was transferred from the first department to the second department.

Appeal by the defendants, Joseph -Liebmann and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in 'the office of the clerk of the county of Kings on the 17th day of January, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of January, 1896, denying the defendants’ motion for a new trial made upon the minutes.

Appeal hy the defendants, Abraham Abraham and others, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of August, 1896, affirming a judgment of the Court of Special Sessions of the city of Brooklyn adjudging the defendants guilty of a misdemeanor in conducting a store for the retailing of medicine, and in having sold medicine without being registered pharmacists or under the…

<p>Application for an order removing John McKinney from the office of justice of the peace,</p>

Appeal by David W. Travis, the defendant’s attorney, 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 27th day of January, 1897, adjudging him guilty of a contempt of court and imposing upon him a fine of $100.

Appeal by the plaintiff, Terrence F. Ferguson, from an order of the Supreme Oourt, made at the Kings County -Special Term and entered in the office of the clerk of the county of Kings on the 8th day of March, 1897, appointing a referee.

Appeal by the plaintiffs, Pauline E. White and another, from so much of an order, of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the. county of' Westchester on the 24th'day of October, 1896, as denies the plaintiffs’ motion on defendants’ consent for an order of discontinuance-of the action, without costs.

Appeal by the plaintiff, the Allentown Foundry and Machine „ Works, from am 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 January, IS97, staying the proceedings in the action until the final determination of 'certain actions pending in the State of Massachusetts.

Appeal by the defendants, Margaret Worthington, individually and as administratrix, etc., of Richard Worthington, deceased, and otliers, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the' ■county of Kings on the 1st day of March, 1891, granting leave to the defendant, The ¿Etna Life Insurance Company, to serve a supplemental answer.

Appeal by the defendant, James Butler, 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 2d day of February, 1897, vacating an order made by a justice of the-Supreme Court directing the plaintiff to submit to an oral and physh cal examination before the trial of the action.

Appeal by the defendant, Arthur F. Blot, 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 May, 1896, upon the verdict of a jury, and also from an order bearing date the 4th day of May, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the defendant, The Third Avenue Railroad Com-comp, 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' 27th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Adeline F. Austen, from a judgment of the Supreme Court in favor of the defendant, entered, in the office of the clerk of the county of Westchester on the 2d day of November, 1896, upon the dismissal of her complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Westchester.

Appeal by the defendant, the Nassau Electric 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 Kings on the 8th day of June, 1896, upon the verdict of a jury, and also from an order bearing date the 19th day of October, 1896, and entered in ' said clerk’s office, denying the defendant’s motion for a new trial ' made upon the minutes.

Appeal by the defendants, Angelino Sartirano 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 21st day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of October, 1896, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the relator, Mortimer C. Earl, 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 28th day of December, 1896, upon the decision of the court rendered.after atrial at a Trial Term of the Supreme Court held in and for the county of Kings before the court without a jury.

Appeal by the plaintiff, Charles Odell, from an order of the City Court of Yonkers, entered in the office of the clerk of said court on the 8th day of April, 1897, denying his motion for an extension of time to prepare and serve a proposed case on appeal.

Appeal by the defendant, The National Accident Society of 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 31st day of October, 1896, upon the, verdict of a jury, and also from an order entered in said clerk’s -office on the 12th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Barzillai G. Neff and others, constituting the board of assessors of the city of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the '4th day of March, 1897, vacating and setting aside an assessment upon .the property of the relator and ordering a reassessment thereof in certain proceedings under article XI of chapter 908 of the Laws of 1896:

Appeal Tiy the defendant, the Staten Island Electric 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 Richmond on the 31st day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant,. Henry T. Chapman, Jr., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 26th day of June, 1896, upon the verdict of a jury rendered by direction of the court. This appeal was transferred from .the first department to the second department.

<p>Appeal by the defendant, Albert B. Gibbs, from 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 12th day of March, 1897, denying the defendant’s motion for the .substitution of an attorney in the action.</p>

Appeal, by the plaintiff, William N. Dykman, as receiver of the Commercial Bank, from a judgment of the Supreme Court in favor of;-the defendants, entered in the office of the' clerk of the county of Kings on the 20th day of January, 189J; upon the verdict of a jury rendered by direction of the court.

Appeal by the contestants, Aclele Sweeny and another, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 5.th day of November, 1896, admitting to probate an instrument purporting to be the' last will and' .testament of Susan E. Brissell, deceased, and an instrument purporting to be a codicil to said last will and testament.

Appeal by the defendant, the Friedman-Doscher 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 4th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Hochem Maier Scliaikewitz,. from a judgment of the Supreme Court in favor of the plaintiff, entered in, the office of the clerk of the county of Kings on the 20th day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of March, 1896, denying' the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ruth Lansing, by William H. Lansing, her guardian acl litem, 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 23d day of January, 1897, upon the dismissal of her complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the the county of Kings.

Appeal by the defendant, The New York and College Point-Ferry Company, from an order of the Supreme Court, made at theWestchester Special Term and entered in the office of the clerk of the county of Queens on the 28th day of January, 1897, amending the summons by striking out the name of the plaintiff and inserting in lieu thereof the name of the Karsch Brewing Company.

Appeal by the defendants, The Eighth Avenue Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of October, 1896, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 26th day of October, 1896, denying each defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, James M. Carples, from a judgment of the Supreme Court in favor of the plaintiff, for the sum of $397.36, entered in the office of the cleric of the county of Hew York on the: 27tli day of October, 1896, upon the verdict of a jury, and also from air order entered in said clerk’s office on the 27th day of October,. 1896, denying the plaintiff’s motion for a new trial made upon the minutes,</p>

Appeal by the plaintiff, Daniel O. Thompson, as receiver, etc., • of. Augustus Baus & Oo., a domestic corporation, 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 13th day of December, 1894, upon the report of a referee dismissing his complaint.

Appeal by the defendant, Bridget Kane, 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 March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.

• Appeal by the defendant, Fan de Siecle 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 19th day of June, 1896, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the twenty-third day of July, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by tbe defendant, The Rational Ice Company of Rew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of the county of Rew York on tbe 21st day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the- 22d day of October, 1896, denying the defendant’s motion for a new trial made upon tbe minutes.

Appeal by the plaintiff, Edwin. ITamerschlag, 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 February, 1897, vacating his attachment upon the motion of the Allen Advertising Agency, a subsequent lienor.

Appeal by the United' States Pipe Line Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1891, denying its motion to compel the witnesses John D. Archbold and others to answer certain questions put to'them, which they refused to answer.

Appeal by the defendant, The Equitable Life Assurance Society of the United States, from a judgment of - the Supreme Court in favor of the plaintiff, entered- in the office of the clerk of the county of New York on the loth day of April, 1896, upon the verdict of a jury, and .also from an order entered in said clerk’s office on the 14th day of April, 1896, denying the defendant's motion for a new trial made upon the minutes.

<p>(Release—the plaintiff may show facts (unpleaded) impeaching it — not precluded, ■ by the specification of one defense, from showing others—laches.</p> <p>Where a release is put in evidence as a defense to the. plaintiff’s claim in an action to recover damages for personal injuries, the plaintiff may prove that she signed it, not knowing its contents, and that she was induced to do so by false representations, or any other facts tending to impeach it.</p> <p>The fact that in an affidavit and notice the plaintiff has specified only one such defense, does not preclude proof of the others.</p> <p>Whether the plaintiff has been' guilty of laches, in failing to take steps to set aside the release, presents a question of fact to be considered by the jury after all the evidence is in.</p>

Appeal by the defendant, the Mechanics and Traders’ Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of January, 1896, upon the report of a referee.

Appeal by the plaintiff, John Costello, an infant, by John Costello, his guardian ad litem, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1897, denying his motion to restore the cause to the preferred calendar of Part 2 of the Trial Term in the county of New York.

<p>Appeal by the plaintiff, .Margarethe Riester, as administratrix, etc., of Joseph Riester, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 31st day of January, 1896, upon the dismissal of her complaint, directed by the court at' the close of the plaintiff’s case, for want of proof of a cause of action, after a trial at a Trial Term of the Supreme Court held in and for the county of- New York..</p>

Appeal by the plaintiff, the Standard Fashion Company 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 New York on the 4th day of' February, 1897, upon the dismissal of its complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York, on the ground that it did not state facts sufficient .to constitute a cause of action.

Appeal by the defendant, the Henry Elias Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the comity of New York on the 15th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day. of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, George S. Hart, 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 7th day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office November 7, 1896, granting the defendant, The Metropolitan Street Railway Company-, an extra allowance of $1,000.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plain-. tiff, entered in the office of the cleric of the county of New York on the 6th day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 28th day of October, 1896, granting the plaintiff…

Appeal by the plaintiffs, Samuel W. Castner and another, 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 27th day of Hovember, 1896, upon the dismissal of their complaint on the ground that it did not state facts sufficient to constitute a cause of action, directed by the court at a trial before the court and a jury.

Appeal by the plaintiff, Louise Sann, as administratrix, etc., of William Sann, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Néw York on the 30th day of Nevember, 1896, upon the dismissal of her complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York.

Appeal by the plaintiff, the Pierce Steam Heating Company,from a judgment of the Supreme Court in favor of the defendant Louis M. Fulton, entered in the office of the clerk of the county of New York on the 7th day of August, 1896, up'on the decision of the court rendered after a trial at the New York Special Term dismissing its complaint.

■ Appeal by the defendant, Samuel Regester, as assignee or trustee of Jackson Brandt, for the benefit of his creditors, 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 28th day of January, 1897, directing that the premises described in the action be sold subject'to a certain restriction.

Appeal by the plaintiff, Louisa Lemien, 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 5th day of March, 1896, upon the (alleged) decision of the court rendered after a trial at the New York Special Term dismissing her complaint upon the merits, and also from an order entered in said clerk’s office on the 9th day of March, 1896, denying her motion for a new trial made upon the minutes. .

<p>Appeal-toy the relator, Danford N. Barney, 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 September, 1896, dismissing a writ of certiorari issued to review the action, óf the respondents- in assessing the property of the. relator for taxation;</p>

Aepeal by the defendant, the Palladium Printing 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 31st day of December, 1896, striking out portions of its answer as irrelevant and redundant.

Appeal by the plaintiff, Alexander 0. McCone, from a judgment of the Court of Common Pleas in and for the city and county of New York in favor of the defendant, entered in the office of the clerk of said court on the 7th day of November, 1895, upon the dis^ missal of his complaint directed by the court after a trial before the court and a jury at a Trial Term of said court, and also from an order entered in said clerk’s office on the 26th day of November, 1895, denying the…

Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s offiee on the 12th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Will — creating a trust during the minority of the testator’s children, and directing his executors to thereafter sell his real estate and divide the proceeds— éffect of the children attaining their majority before the testator’s death—power in trust — income of property pending, the execution of the power—will construed to a/coid intestacy.</p> <p>The will of a testator, made at a time when but one of his three children was of full age, after giving to his executors all of his estate in trust until his youngest ' child, Letitia, should attain the age of twenty-one years, provided .that, upon the happening of that event, his executors, or the survivors of them, should sell his real estate and pay over the proceeds as follows: §1,000 to his son Nicholas (the adult child), and the balance to his .two minor children, John and Letitia, share and share alike; and in the event of either of the two latter persons dying before the period before named, unmarried and without issue, that then the survivor should take the share of the one so dying.</p> <p>All of the testator’s children survived him, the minor two children, J ohn and. Letitia,. attaining their majority before the testator’s death, subsequent to-which event John died, unmarried and without issue.</p> <p>Held, that the trust estate was created as a mere incident to the testator’s main . scheme for the final distribution of his estate;</p> <p>That, upon the testator’s youngest child attaining her majority before the death of the testator, the provision for the trust became inoperative, and that the will must be read as .though that provision had not been inserted;</p> <p>That John and Letitia having been alive at the time fixed for the termination of the trust estate, the shares bequeathed to them, became, upon the death of the testator, vested absolutely in them, and that upon John’s death his share went, to his personal representatives as personalty;</p> <p>That immediately upon the testator’s death there was an equitable conversion of the real estate, the naked fee of which vested in the testator’s heirs at law, subject to be defeated by the execution of the general power in trust given to-the executors, to sell the real estate and to divide the- proceeds thereof as. required by the will;</p> <p>That any income derived from the property pending the execution of the power became a part of the proceeds of the property.</p> <p>Where it is apparent that a testator did. not intend to die intestate under any circumstances, such a construction of his will as will avoid intestacy must be preferred to one from which it will follow.</p>

<p>Contract for paving a street,— effect of colored spaces on a map referred to — agreement■ to malee a contract with a railroad at the same prices — release obtained under misrepresentations.</p> <p>The contract for the paving of a city street provided that the contractor should “ pave with granite block pavement, with concrete foundation, the carriageway of Third avenue from 96th street to 139th street, as specifically shown on the plans hereinafter referred to,” the contract providing that it “is made with reference to the plans for the same now on file in the office of the water purveyor, which said plans are to be taken as part and parcel of these presents and are intended to co-operate.”</p> <p>The map referred to was colored blue where certain walks crossed the avenue or streets, pink from the curb line upon each side to a point two' feet from the outer rail of the street railroad tracks, and white between the tracks and for a space of two feet upon each side thereof, but contained no memorandum as to what this coloring meant, although there appeared thereon the words “horse-ways not to be concreted,” but no indication thereon as to what was meant by the word “horseways.”</p> <p>By the contract it was required that.the work should be done to the satisfaction of the commissioner of public works who, after it was done, certified as follows: ‘ ‘ I certify that the work mentioned in the contract herein specified has been completed according to the terms of said contract and is satisfactory.” Subsequently, the plaintiff was paid by the city the amount due under the contract for paving the avenue, excepting therefrom two feet on each side of the outer rail of the railroad running on the avenue, although these two feet were paved under the direction of the commissioner of public works.</p> <p>Held, that in the absence of any indication upon the map that, the contract was confined to that portion of Third avenue colored upon the map, and in view of the provision of the contract whereby the. plaintiff was bound to do the work as directed by the commissioner of public works, and of the fact that the contract was for paving “the carriageway,” there was no ground for excluding two feet on each side of the tracks from the carriageway to be paid for;</p> <p>That the fact that there was a provision in the contract that, should a street railroad desire to make a contract with the contractor for the paving of the space within and about its tracks, he would contract with such railroad to do that work at a rate not greater than that charged in the contract, did not, in the absence' of the expression of any such desire on the part of a street railroad to make such a contract with the contractor, relieve the city from its obliga-' tion to pay for the work which it ordered him tó do, and which he had done under the contract, and which the city had accepted;</p> <p>That a release obtained when a payment was made to the contractor, who was an illiterate man, unable to read or write, and was asked to sign a paper by one of the city officers before the payment to which he was entitled was made to him (he at the time asking whether that paper would interfere with his claim against the city for the balance and being assured that it would not), was not a defense to an action brought by the contractor to recover for such balance so due to him under the contract.</p>

<p>Appeal by the plaintiff, Eugene D. Klein, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 20th day of January, 1897, upon the-dismissal of her complaint upon the opening directed.hy the court after a trial before the court and a jury. .</p> <p>Paragraph 1 of the complaint, mentioned in the opinion of the court, was as follows;</p> <p>“That on or about the 15th day of November, 1895, in consideration that the plaintiff, at the request of the defendant, would sell .to one John T. White, on credit, such goods as said John T. White should desire to buy of this ■ plaintiff, the defendant .promised in writing to be answerable to the plaintiff for the payment by said John T. White of' the price of goods sold and delivered to said J ohn T. White, within six months of said day, on credit, to an amount not exceeding a total credit of five hundred (500) dollars.”</p> <p>The -complaint further alleged that, the plaintiff, on the faith of said guaranty, sold and delivered to the said John T. White, merchandise of the .value of $500 on credit which had expired, and which sum was then due therefor from the said John T. White, and that the plaintiff had duly performed all the conditions of said guaranty on its part, and demanded judgment against the defendant for the amount of said credit. e</p>

Appeal by the defendant, the Evansville and Terre Haute Railroad 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 Hew York on the 13th day of January, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term overruling its demurrer to the complaint.

Appeal by the plaintiff, Ann McCarran, from a judgment of the Supreme Court in favor of the defendant, Henry G. Cooper, entered in the office of the clerk of the county of Hew York on the 11th day of December, 1896, upon the decision of the court rendered after a trial at the Hew York Special Term sustaining the demurrer of Henry G. Cooper to her complaint.

<p>Gua/i'anty of bonds — when the right of the bondholder to sue is not affected, by a provision intended as a further assurance to investors therein.</p> <p>Where a corporation enters into an .agreement with a trust company, hy which it guarantees the payment of certain bonds issued by another corporation, and, after providing that the trust company as trustee might enforce payment on behalf of the holders of any of the bonds or coupons, the agreement expressly provides that “nothing therein contained shall be held to deprive holders of any of said bonds or coupons of a direct or separate remedy against the ” guarantor corporation “upon its guaranty of the principal or interest thereof,” the right of a holder of bonds so guaranteed to recover upon its coupons is not affected hy a prior provision in the agreement that, if at any time the holders of not less than one-fifth in amount of the bonds outstanding become dissatisfied with the security of the principal of the bonds, they might require the trustee to appoint an appraiser of- the assets of the obligor, and that if these proved to be less than a certain per cent of the par value of the bonds then the guarantor corporation agreed thereafter to pay all taxes, assessments and other charges of the obligor, “ such interest being then payable to the trustee,” and allow the income of the obligor to be applied to the redemption of the bonds until- . the security of the principal was raised to the required amount. Such a provision must be deemed to constitute merely a further assurance to investors in the bonds, and does not affect the right of a holder of the bonds to bring an action against the guarantor to recover upon unpaid coupons.</p>

Appeal by the plaintiffs, John Geery and another, 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 13th day of June, 1896, upon the dismissal of their complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 12th day of June, 1896, denying the plaintiffs’ motion for a…

Appeal by the plaintiffs, Marcus Goldman 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 29th day of October, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 28th day of October, 1895, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendants, Emilie Huber and others, as executors, etc., of Otto Huber, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 10th day of December, 1896, upon the decision of the court rendered after a trial at the ¡New York Trial Term before the court without a jury.

<p>Certiorari issued out of the Supreme Court and attested on the 4th day of September, 1896, directed to Theodore Roosevelt and others, composing the board of police commissioners of the police department of the city of Hew York, commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings relating to the removal of the relator from the police department of the city of Hew York.</p>

Appeal by Jesse Varian 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 April, 1896, adjudging him guilty of contempt of court for failure to pay the tax imposed upon the personal estate of Michael Varían, deceased, for the year 1894.

Appeal by the plaintiff, Mari A. Cuming, from a judgment of the Supreme Court in favor of the defendant George W. Roderick, entered in the office of the clerk of the county of New York on the 19th day of October, 1896, upon the dismissal of her complaint directed by the court after a trial at the New York Trial Term.

<p> Partnership agreement •—providing that a surviving pa/i-tner may take the property “as the same may appear from the books of the said business.” </p> <p>In an action brought by the administratrix of a deceased partner for an accounting, it appeared that the partnership agreement provided for an equal division of the assets at the termination of the partnership, except that if either party died the other party might immediately fix the value of the interest of his copartner, “according as the same may appear from the books of the said business, and upon the payment of such- sum in cash” might acquire that interest. It was further provided that the good will of the business or lease of the premises was not to be considered of any value whatever, although they were to be transferred when the interest of either partner was paid for by the other. The partnership was terminated by the death of the plaintiff’s intestate, and the defendant, the surviving partner, continued the business upon his own account, refusing to give to the plaintiff for the interest of her intestate more than a certain amount which he himself .had fixed as the value of that interest.</p> <p>Held, that if the-defendant had elected to wind up the business he would only have been obliged to account for the actual value of the property, but that, as he had chosen to continue the business, he was bound by the provision of the contract, that he was to fix the value of the interest of the deceased partner “according as the same may appear from the books of the said business,” and that consequently he was properly charged with the book value of the interest of his deceased partner, and not simply with the actual value.</p>

<p>An attachment may be levied upon the value of work done by a contractor, although the architect has not certified to it —■ the architects certificate is waived by tlie payment of the money into court — the amount due the contractor where he abandons and the owner completes the work — interest.</p> <p>Where a construction company agrees with an electric light company to do certain work upon the latter’s building for “the sum of thirty-five cents for each and every square foot of plain tile arches erected three courses in thickness,” the work to be paid for only upon an architect’s certificate, a creditor of the constructifin company .may seize and hold, upon an attachment levied upon the funds due the construction company from the electric light company, not only the amount and Value of the work certified to by the architect and then unpaid, but also the value of subsequent work done by the construction company after the architect had made his certificate, and before the day when the attachment was levied.</p> <p>The electric light company, by coming into court and alleging that it owed to the construction company a certain amount, and offering to pay that amount into court, waives the benefit of the provision in the contract which requires the certificate of the architect before it shall be obliged to make any payment to the construction company.</p> <p>Where a construction company abandons the work, and the owner, by the terms of the contract, is authorized to and does complete the contract, the balance due by the owner to the construction company is the difference between the contract price which the construction company was to receive for the work • done after it had abandoned the work, and the amount that it cost the owner to do such work.</p> <p>The attachment creditor is entitled to interest on his demand.</p> <p>Barrett, J., dissented.</p>

Appeal by the plaintiff, The Edison Electric Illuminating Company of New York, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of March, 1896, upon a decision of the Court of Common Pleas for the city and county of New York rendered after a trial, at an Equity Term thereof.

Certiorari issued out of the Supreme Court and attested on the lltli day of December, 1895, directed to Theodore Roosevelt and others, as police commissioners of the city of New York, constituting the board of police of the police department 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 relating to the removal and dismissal of the relator as a police captain of the city…

Appeal by the plaintiff, James H. Stevens, 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 10th day of July, 1894, upon the report of a referee.

Appeal by Karl Scheib 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 January, 1897, revoking a liquor tax certificate issued to Karl Scheib, a writ of certiorari to review the action of the special deputy excise commissioner in granting such liquor tax certificate to said Scheib having been granted upon the ground that he was not a citizen of the United States.

Appeal by the defendants, Phoebe Jane Arnow 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 March, 189Y, denying the application of the defendants for an order restraining the plaintiff from proceeding under- the final judgment pending an appeal.

Appeal by’the plaintiff, William E. D. Stokes, from a final 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 December, 1896, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the complaint, and also from an order entered in said clerk’s office on the 14th day of December, 1896, directing the entry of said judgment.

Appeal by the- plaintiff, Henry JVIaisels, an infant, by David Lourie, liis guardian ad litem, 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 March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1896, denying Nthe plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Josephine J. Meehan, 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 10th day of February, 1897, upon the decision of the court rendered after a trial at the New York Special Term, except so much of said judgment as directs the recovery of costs.

<p> A general assignee of a corporation, not a party to proceedings in which a receiver was appointed, cannot he ordered to surrender its assets to the receiver. </p> <p>A court has no power, in proceedings taken for the voluntary dissolution of a corporation, to order a general assignee of the corporation to deliver its assets to a receiver of the corporation, appointed in such proceedings, where, although such proceedings were begun before the date of the general assignment, the receiver was appointed after that time, and where the general assignee was not ■a party to the proceedings in which the receiver was appointed.</p>

Appeal by the defendant, The Mayor, Aldermen and Commonalty of 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 8th day of October, 1896, upon the verdict of a jury directed by the court.

Appeal by the defendant, Bartholomew McGrane, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 1st day of July, 1896, upon the decision of the court rendered after a trial at the Rew York Special Term.

Appeal by the defendant, Domenico Bonanno, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the'*' office of the clerk of the county of N<=w York on the 20th day°f June, 1896, upon the verdict of a jm'y rendered by direvt;011 0f the court, and also from an order entered in said clerk’s office on the 15th day of June, 1896, denying the defendant’s motion for a new trial made upon the min nibs.

<p>Appeal by' the defendants, Jules S. Bache 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 Hew York on the 22d day of May, 1896, upon the verdict of a jury rendered by direction of the court, as said judgment was amended by an order entered in said clerk’s office on the 8th day of June, 1896, and also from an order entered in said clerk’s office on the 25th day of May, 1896, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Henry De Forest Weelces', from so much of 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 12th day of March, 1897, as stays the sale of the premises sought to be foreclosed in the action until the conclusion of condemnation proceedings taken on behalf of the mayor, aider-men and commonalty of the -city of Hew York to take certain property, including the…

<p>Appeal by the defendant, Augustus Clason, 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 December, 1896, upon the decision of the court rendered after a trial at the-New York Special Term.</p>

<p>Appeal by the plaintiff, Charles -C. Smith, as executor, etc., of Adaline L. Gregg, deceased, from so much of a judgment of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of December, 1896, as affirms the judgment and order entered upon the decision of the General Term of the City Court of New York, entered in the office of the clerk of said court on the 15th day of August, 1898.</p>

Appeal by the plaintiffs, Nicholas Simermeyer and another, 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 24th day of February, 1897, upon the decision of the court rendered after a trial at the'New York Trial Term, before the court without a jury, dismissing the plaintiffs’ complaint.

<p>Appeal by the defendants, The New York Elevated Railroad Company and another, 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- 25th day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>This action was brought to enjoin the maintenance and operation of the defendants’ elevated railroad in front of premises to which the original plaintiff, Thompson, held title as trustee, and to recover the damages done to such premises because of 'such maintenance and operation of the railroad.</p>

Appeal by the plaintiffs, Thomas P. Fitzsimons and another, from a final 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 5th day of Januáry, 1897, upon the'decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 15th day of December, 1896, sustaining…

Appeal by the defendant, Helen M. Britton, individually and as executrix, etc., of Elizabeth Lee, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of December, 1895, upon the verdict o-f a jury, and also from an order bearing date the 12th day of December, 1895, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Joseph Peche, 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 15'th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’suffice denying the plaintiff’s motion for a new trial made upon the minutes. /

<p>Grimes — right of a person charged in a Gourt of Special Sessions with a crime, removable upon a certificate to the grand jury—he must be allowed the statutory ■ time given for the making of the application for removal.</p> <p>Where a person charged] in the Court of Special Sessions with assault and battery in the third degree, a crime enumerated in section 56 of the Code of Criminal Procedure, and removable, for trial by indictment, under sections 57 and 58 thereof, is arraigned and informed “ of his rights to counsel, witnesses and a trial by jury,” aslcs time to procure counsel and witnesses, and an adjournment is granted for two days, and upon the adjourned day he appears by counsel and asks for an adjournment :got exceeding ten days, in order to apply to the county judge .for a certificate that it is reasonable that .the charge should be prosecuted by indictment, it is the duty of the justice of the peace to grant the request, and his summary conviction of the accused will not be sustained.</p>

<p>A sheriff sued .foi’ conversion may rest on the execution without proof of the judgment— the County Court has power, on appeal, merely to affirm or reverse — where it grants new relief, the Appellate Division may modify the judgment by striking such new relief out.</p> <p>Where a sheriff is sued for the alleged conversion of personal property the burden is imposed upon the plaintiff to establish legal ownership thereof, when the sheriff puts in evidence an execution "and proves a levy thereunder," although he does not put in evidence the judgment under which the execution was issued. "</p> <p>A County Court has power only to affirm or reverse the judgment of a Justice’s Court, and where the judgment of a County Court, reversing a judgment in favor of the plaintiff, contains an unauthorized provision awarding damages to the defendant, which has no warrant either in the decision or in the evidence or in the proceedings appearing in the record on appeal, the Appellate Division has power, under section 1817 of the Code of Civil Procedure, providing that upon an appeal to it it may “ reverse or affirm, wholly or partly, or may modify the judgrhent or order appealed from,” to strike from the judgment the relief which it was beyond the power of the County Court to give. Follbtt and Green, JJ.., dissented, on the ground that the error was that of . the clerk and not of the court and should be corrected by motion in the County Court,</p>

Appeal by the defendant George Henry from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the '28th day of September,' 1896, denying his motion to vacate an order of arrest.

Appeal by the defendants, John Pitass 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 Erie on the 29th day of May, 1896, upon the verdict of a jury for $6,250, and also from an order entered.in said clerk’s office on the 10th day of June, 1896, denying the defendants’ motion for a new'trial made upon the minutes.

Appeal by the plaintiff, the Bartholoinay Brewing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 25th day of November, 1896, upon the decision of the court rendered after a trial at the Monroe Trial Term before the court without a jury, dismissing the complaint “ on the ground that at the time of the commencement of this action there was pending another action in the Supreme Court of…

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff for $4,000, entered in the office of the clerk of the county of Onondaga, on the 2d day of April, 1895, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 1st day of April, 1895,. denying the defendant’s motion for anew trial made upon the minutes.

Appeal by the defendant, Isaac S. West, as guardian and as committee of the person and property of Asa. K. West, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 13th day of January, 1897, denying his motion to restrain the prosecution of the action against Asa K, West and to punish the plaintiff for contempt of court for the prosecution thereof as against the said Asa K. West.

Motion by the plaintiff, Daniel E. Tonge, for a new trial, upon a case containing exceptions, ordered to be heard at the Appellate Division in. the first instance, upon the dismissal of his complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for1 the county of Erie on the 13th day of November, 1896.

Appeal by the plaintiff, the Warsaw Water Works Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wyoming on the 3d day of September, 1896, upon the decision of the court rendered after a trial at the Wyoming Trial Term before the court without a The trial judge found, as conclusion of law: “That at the time the defendants constructed its system of water-works in the village of Warsaw, and at the…

Appeal by Ingham D. Townsend and others from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Lewis on the 15th day of December, 1896, appointing three commissioners to assess damages to riparian owners on Roaring brook in the town of, Martinsburgh, Lewis county, under chapter 338 of the Laws of 1896.

Appeal by Philip Bommer 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 2d day of February, 1891, setting aside the report of the commissioners appointed in a proceeding to ascertain and appraise the compensation which ought to be made by the Terminal Railway of Buffalo, the plaintiff named in said proceeding, to Philip Bommer ei al., the persons named in said proceeding, to whom the…

Appeal by the defendant, William W. Calkins from an inters loentory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 8th day of October, 1896, upon the decision of the court rendered after a trial at the Monroe Special Term overruling his demurrer to the complaint. The plaintiff alleges that the company was incorporated in April, 1891, under and by virtue of chapter 41 of the Laws of 1848.

<p>Appeal by the plaintiff, the J. Walter Thompson Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 28th day of August, 1896, vacating a warrant of attachment theretofore granted in the action.</p>

Appeal by the defendants, Lemon Thomson 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 Herkimer on the 29th day of June, 1896, upon the report of a referee. This action was brought by tlie plaintiff’s testatrix to restrain the defendants from driving or floating logs down the North Branch of the Moose river.

Appeal by the defendant, Artemus L. Hunt, as executor, etc., of Sylvester Eix, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 5th day of July, 1895, upon the report of a referee.

Appeal by the defendant, Hiram F. Henry, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 26th day of August, 1895, upon the decision of the court rendered after a trial at the Cattaraugus Circuit, the jury having been dismissed by consent of all parties.

On the 2d day of September, 1895, it issued its policy, or contract of insurance, in due form to the plaintiff, whereby, in consideration of the sum of thirteen dollars entrance fee, and the advance payment by the plaintiff of eight dollars and fifty cents for the mortuary, expense and reserve funds, and certain other agreements and conditions set forth in the policy, it insured for the term of three years the life of a certain valuable horse, called “ General Ewell,” the…

Appeal by the defendant, The President, Managers and Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 23d day of December, 1895, upon the verdict of a jury, and. also from an order bearing date the 18th day of December, 1895, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes, and also.from an…

. Appeal by the defendants, Nathaniel B. Sherman, as sheriff of the county of Allegany, and another, from an order of the Supreme Court, made at the Cattaraugus Special Term and entered in the office of the clerk of the county of Allegany on the loth day of June, 1896, denying the defendants’ motion to set aside a verdict, and for a new trial made upon a case containing exceptions.

Appeal hy the plaintiff, the Milsom Rendering and Fertilizer Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 7th day of November, 1896, upon the decision of the court rendered after a trial at the Erie Special Term sustaining the defendant’s demurrer to its complaint, with notice of an intention to bring up for review upon such appeal the order or decision entered in said…

<p>Insurance—mortgagee clause — it does not cover a failure of the mortgagor to state his interest correctly — neglect of the moi'tgagee to disclose the state of t7ie title.</p> <p>A mortgagee clause providing that “ this insurance as to the interest of the mortgagee or trustee only, therein, shall not he invalidated by any act or neglect of the mortgagor or owner of the within described property,” attached to a policy of insurance, although it creates a new and distinct contract between the insurer and the mortgagee, does not relieve the mortgagee from a condition of the policy requiring the interest of the insured in the property to be truly stated therein — especially where the insured made application for the policy and paid the premium at the instance of the mortgagee to whom the policy was delivered and for whose exclusive benefit it was issued, and whose neglect it was that the insurance company was not notified of the real condition of the title.</p>

Appeal by the plaintiff, Lewis P. Ross, from a judgment of the Supreme Court in favor of the defendants Oaywood and Donovan, entered in the office of the clerk of the county of Monroe on the 14th day of November, 1896, upon the decision of the court rendered after a trial at the Monroe Equity Term dismissing the plaintiff’s complaint without costs.

<p>Appeal by the plaintiff, Agnes Weber, from a judgment of the-Supreme Court .in favor of the defendant, entered in the office' of: the clerk of the county of Monroe on the 11th day of July, 1896,. upon the dismissal of her complaint directed by the court after a trial at the Monroe Circuit on the 15th day of November, 1895.</p> <p>Action upon an insurance policy issued by the defendant J anuary 24, 1894, to the plaintiff and her husband, George P. Weber, insuring the household furniture in their residence in Rochester, N. Y. The insured property was totally destroyed by fire April 1, 1894. The action was commenced oh the lltli day of October, 1894, previous to which the husband assigned to the plaintiff his interest in the loss. The action was tried at the Monroe Circuit on the 15th of November, 1895, before a justice of this court and a jury. At the close of the plaintiff’s testimony the counsel for the defendant moved for a nonsuit “ upon the ground that the plaintiff has failed to show facts sufficient to constitute a cause of action, and that he has failed to establish the facts alleged in the complaint.”</p> <p>The motion ivas -granted, to which the plaintiff excepted. The complaint was dismissed and the judgment entered -to that effect against the plaintiff, with costs, from which judgment the plaintiff appeals.</p> <p>Upon the trial it appeared that the house occupied by the insured had several rooms in which there was a good supply of furniture suitable for housekeeping; that the parties insured had been married a few weeks and that the plaintiff was acquainted with one Poppin, who was an insurance solicitor and agent for the defendant, and occupied the same office in Rochester with Duemplemann & Stahlbrodf, the gen eral, agents of the defendant.</p> <p>Poppin, in July, 1893, met the plaintiff on the street, and entered into conversation with her; she informed Poppin that she had been married. Poppin said: “ If you are married I guess I will have to come down and give you a policy of insurance.” The plaintiff said, “ Yon can come down arid see my husband about it.” In a short time Poppin went to the house and the plaintiff showed him through the house. At this time the furniture destroyed by the fire was in the house. The plaintiff asked Poppin what she could get the property insured for; he said $1,000. Later on when the husband was at home Poppin went again to the house, and finding the husband, told him that he had come to make out a policy. ■ The husband said that he could not afford it just then; that he was working only on half time and had got all he could do to live and pay his rent, and pay the balance on the furniture that his wife had bought on the installment plan. Poppin said he would wait thirty days. Afterwards, and shortly before the policy was issued, the plaintiff’s husband met Poppin in the street and told him to bring the policy for $1,000, which Poppin did, and upon its delivery to the husband the premium of $6 was paid. The policy was in the standard form and contained the condition that it should be void if the interest of the insured be. other than the unconditional and sole ownership of the property. The policy covered the household furniture, useful and ■ ornamental, which included furniture valued at $223.3d that had been purchased by the plaintiff of a Rochester firm upon the installment plan, payable at different periods, and all of which had been paid at the time of the insurance except $75, the .firm reserving, the title to the property until paid for. At the time of the insurance there'had been no default in the time of payment under this contract, and at the time of the trial the furniture had all been paid for. The property in the house, except that purchased on the installment plan, seems to have belonged to the plaintiff and her husband, and was not incumbered.</p> <p>The next morning, after the fire, the husband went to see the agent Düérnplemann, and notified him of the fire, and he testified: “I told him I had a fire. He says, ‘All destroyed?’ I says, ‘Yes.’" He says, ‘ How much are you insured for ? ’ I says, ‘ A thousand dollars.’ He says, ‘How. much does your property amount to?’ I says, ‘ Between thirteen and fourteen hundred dollars.’- He say's, ‘ I will tell you what to do; you go home and.buy some legal cap-paper and put down every article you had in the house and the price opposite each one. When you get that done return it to me at the office.’ ” The husband asked the agent for a duplicate policy, as his had been destroyed by fire, and the agent informed him that it was unnecessary, as the defendant had a duplicate in New York.. The plaintiff and her husband made out the list as directed by the agent, and on the fourth of April the plaintiff delivered the completed list of property destroyed, which was an inventory giving a detailed description of the furniture in each room, with valuations attached to each article aggregating $l,376-.79, to Mr. Duemplemann, and asked him if it was all right, and he said “ yes,” and she testifies: “I asked him what I ought-to do now, and he said ‘I" should, go home. It would be all right. He would send it to New York.’ He said I was to do nothing, and I went home.”</p> <p>In a few days one Itreuder, the general adjuster of the defendant, appeared in Rochester, and, in company with Poppin, went to the plaintiff’s house, having the memorandum, of loss which she had delivered to the insurance agent, and interrogated the plaintiff and made investigations as to the fire. Before the expiration of sixty days from the time of the fire the husband .saw the agent, Stahlbrodt, and stated to him that the limit. of time, sixty days, had pretty nearly expired and he had not heard anything from the company, whereupon the agent said to him, “ Weber, if you sent your papers to New York you will have your money either two or three days before sixty, or two or three days after sixty.”</p> <p>No other or different proofs of loss were furnished by the insured, nor were any required by the defendant. The policy contained the usual provision as to furnishing proofs of loss.</p> <p>Some proof was given upon the trial as to the value of the property burned, but the proof was not completed owing to the suggestion of the court that that might be deferred until the other proof was in, and when the plaintiff rested her counsel stated that she did rest except as to the proof of the value of the property, whereupon she was nonsuited. The paper containing the statement of the loss was not returned to her nor any notice given her that it was defective in any respect.</p>

Motion by the plaintiff, James M. Mahaney, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in. the first instance, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Niagara.

Appeal by the defendants, Erank J. Amsden and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 11th day. of November, 1896:, 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 November, 1896, denying the defendants’ motion for á new trial made upon the minutes. ’ : This is an action to recover twice…

Appeal by the defendant, Orrin Hnngerford, 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 2d day of' November, 1896, ujpon the report of .a referee vacating and setting-, aside an agreemerit of separation made between the parties, who-were husband and Wife, on the 12th of October, 1.892, and for costs.

Appeal by the plaintiff, William Weidman, from a judgment of the County Court of Monroe county in favor of the defendants, entered in the officb of the clerk of the county of Monroe on the 29th day of May, 1896, upon the dismissal of his complaint directed by the court after a final before the court and a jury, and also from an order entered in said clerk’s office on the 17th day of August, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.