Volume 16 — New York Miscellaneous Reports

Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment in favor of plaintiff for rent.

Appeal by defendant from order of the General Term of the City Court of New York, affirming an order made at Special Term denying motion made to set aside the service of summons.

Appeal by plaintiff from orders of the. General Term of the 'City Court of Hew Ybrk, affirming orders made at the Special Term granting motions to vacate orders of'arrest in each,of the above-entitled actions. ' ' - ' '

<p>Appeal by defendant from a judgment of the General Term of the City Court, affirming a judgment entered on a verdict in favor of plaintiff.</p>

<p>Appeal — Return — Amendment.</p> <p>The return on appeal from the General Term of the City Court of New York cannot be amended for the purpose of obtaining a rearguJ meat by the insertion of matters which were not before that court</p>

<p>Appeal by defendant from judgment of the General Term of the City Court, affirming a judgment entered on a verdict in favor of plaintiff.</p>

<p>Appeal from affirmance by City Court, General Term, of a judgment rendered upon direction of the trial court.</p>

Appeal by plaintiff from an affirmance by the General Term of the City Court. of a judgment entered upon the dismissal of the complaint. •

■ Appeal by plaintiff from an order of the City Court, General Term, reversing a judgment in his favor for $509.63, entered upon the direction of a verdict, and ordering a new trial. The action was upon a bond for $400 given by defendant to plaintiff, conditional for the carrying out of a contract between the parties, by which defendant covenanted to employ only members of the plaintiff’s association.

Appeal by defendant from an affirmance by the City Court, General Term, of a judgment in favor of plaintiff, entered upon the verdict of a jury f-or $792.99, and of an order denying defendant’s motion for a new trial upon the minutes. The action was brought to recover $2,000 damages from defendant for falsely representing that he. had authority to contract on behalf of his-wife to purchase certain premises in the city of New York.

<p>Order — Amendment of. -</p> <p>An order denying a motion for a ,new trial cannot be amended by inserting therein affidavits as to occurrences which took place when the.-jury was polled, which were not 'used upon the motion. ' 1</p>

. Appeal by defendant from judgment of the General Term of the City Court, affirming a judgment entered on verdict, of jury in favor of plaintiff. •

<p>Appeal from a judgment of the General. Term of the City Court of New York, affirming judgment on verdict.</p>

Appeal, from affirmance by the General Term 'of the City Court of a judgment on verdict in favor of the plaintiff. Action for malicious prosecution.

<p>1. Carriers — Contract for transportation.</p> <p>One to whom the shipment of goods is intrusted by the owner acts as the agent of the latter, and has power to bind him in contract with the carrier as to the terms and conditions of transportation. •</p> <p>2. Same — Expressmen.</p> <p>In the absence of an express agreement, an expressman whose route is limited and who undertakes to deliver goods within such limit and forward other goods to outside points, is not liable for a loss occurring after delivery to a connecting carrier..</p>

<p>Appeal from judgment of Fourth Judicial District Court in favor of defendant.</p>

Action to recover damages which were claimed to have accrued from the loss of a sum of'money through the negligence of the defendant as bailee.

<p>Appeal — Security.</p> <p>To perfect an appeal from the General Term of the City Court of New York to the Appellate Term of the Supreme Court no security is required. '</p>

<p>Morion by plaintiff, appellant, to compel the justice of the Seventh Judicial District Court to make his return on appeal.</p>

<p>Benevolent societies — Benefits.</p> <p>Where the constitution of an unincorporated benevolent association, composed of employees of a firm, provides that membership should .cease upon discharge, from employment by said firm “ for any reason whatever,” a member who is discharged because of sickness ceases-to be such, and is not thereafter entitled to sick benefits. ■</p>

Action by the lessor to recover damages, for the lessee’s breach of a contract of letting by refusal to enter into possession of the demised premises and to pay rent.

<p>Appeal from a judgment of.the District Court in the city of Hew York' for the First Judicial District, in favor of the plaintiff.</p> <p>Action to recover a sum of money alleged to have been paid under a mistake of fact.</p>

<p>negligence — Tenants on different floors — Overflow of water.</p> <p>A< tenant is not liable for injuries caused by an overflow of water in his premises to the property of another tenant on the floor below, unless such overflow is shown to have been caused by his negligence.</p>

Appeals by defendant from judgment's in. plaintiff’s favor, entered by default in the Eighth District Court upon proof of service of the summons upon ■ Frederick A; Hart, described as one of the directors of the defendant. > - The appeal is taken under section 3057 of the Code, upon affidavits showing that Hart hid' resigned as a director of the company before the service of the summons. Opposing affidavits are presented -by the respondent. '

Appeal by defendants from a judgment' of the First District ■Court in favor of plaintiff for $215, for the price of 9,000 paper boxes.

<p>Negligence — Contributory — Grossing street-car tracks.</p> <p>Plaintiff’s driver, when about five feet, from defendant’s easterly track, observed a car" on that track a block away, and one on the other track about three-quarters of a block off. When upon the further track he suddenly discovered the second car within eighteen feet, which collided with his wagon beforé he could escápe. Held; that the driver was not guilty of contributory negligence; that it was not his duty to wait for the car to pass, but he had a right to rely on the observance of reasonable care by the gripman.</p>

<p>Appeal from judgment of Sixth Judicial District Court in favor of defendants. •</p> <p>Action for rent.</p>

<p>1. Bar — Former adjudication.</p> <p>A judgment recovered in an action on contract is a bar to- a subsequent action for conversion of the same property.</p> <p>3. Service — Presumption as to regularity.</p> <p>Where a justice of a District Court has rendered judgment upon proof of service made by a person other than a marshal, it will be presumed that he had given such person authority to make the service.</p> <p>3. Estoppel —Judgment creditor cannot show the judgment to be void.</p> <p>One who has obtained a judgment cannot show that it is void because of fraud or want of jurisdiction of the person.</p> <p>4. Judgment — Collateral attack.</p> <p>A judgment which is merely irregular cannot be attacked collaterally.</p>

<p>T. Partnership — Admissions as to.</p> <p>An admission by a person that another, who is not present, Is his partner, is not binding upon the latter.</p> <p>Ü. Same — Liability on the ground oí appearances.</p> <p>No person can be fixed with liability on the ground that he has been held out as a partner, unless such holding out has been either by him, or with his consent, and was known to the person seeking to establish such liability before giving the credit.</p>

<p>1. Evidence — Presumptions.</p> <p>When a condition of things is once established, there is a legal presumption of its continuance.</p> <p>8, Landlord and tenant — Disorderly house — Evidence.</p> <p>In an action by a landlord to recover possession óf the demised premises on the ground that they are being used and occupied as a bawdy-house, evidence as to their use in the past by the samp tenants is admissible, and should not be limited to a period of two weeks prior to the commencement of the action.</p> <p>3, Trial — Objections to evidence.</p> <p>When an objection to evidence has once been made and' overruled, it is not requisite to repeat the objection, if subsequent questions call for the same class of evidence relating to the same' subject-matter. x. " ■</p>

<p>Principal and agent — Liability of agent.</p> <p>One who deals with an agent, without knowledge of his agency, is not restricted to an action against the concealed principal when discovered. .</p>

<p>Appeal by defendant from judgment of the Seventh Judicial District Court. . ,</p>

<p>Hegligenee t- Obstructions in street.</p> <p>Defendant, which was engaged in repairing the sidewalks of "Central park, left piles of asphalt in the gutter, about forty feet ¡apart, and between them, and about four feet from the gutter, a pile of sand and gravel, The piles of asphalt had lights upon .them, but the-other had no danger signal. Plaintiff, while driving in the park driveway on a dark night, collided with the pile of sand and his carriage was thereby injured. Held, that "the facts justified a finding of negligence on the part of the defendant.</p>

<p>Appeal from a judgment of the District Court in the city of New York for the First Judicial District, in the plaintiff’s favor.</p> <p>Action for money had and received to the use of the plaintiff.</p>

<p>Appeal — Conflict of evidence.</p> <p>In an action upon a contract for the purchase of a gas-governor on condition that, upon trial, it should show a saving of a certain percentage of gas; if not, to be removed at the vendor’s expense,, the evidence as to the fact of such saving was conflicting, and it appeared that no direction to remove' it had been given. Held, that a decision in favor of the plaintiff would not be disturbed.</p>

Action for rent. - Counterclaim for damages alleged to have resulted from the.failure of the plaintiff’s assignor to make repairs.

<p>Landlord and tenant — Taking possession of mortgaged-chattels no defense to action for rent.</p> <p>Upon the purchase of a saloon; defendants assumed payment of'a chattel mortgage on the lease and fixtures, given by their vendor to plaintiff, and assumed payment of rent under the lease for which it was given as security. They subsequently sold to another, to whom they gave-.possession, and upon an attempted removal of the fixtures by the latter the plaintiff took possession thereof. Held, that as such possession was taken for the purpose of protecting the mortgage security from conversion, and without any intention of immedíate foreclosure, it did not operate as an accord and satisfaction of the mortgage debt, and-furnished no defense to an action for rent.</p>

<p>. Appeal" by defendant from judgment of the First District Court.</p>

<p>Appeal from final order in summary proceedings, after trial Before the justice of the Ainth Judicial District Court -and-a. jury, whereby possession was awarded the tenant.</p>

<p>1. Statute of frauds :—Contract of sale—: Unsigned -memorandum.</p> <p>An unsigned memorandum in relation to a sale of-personal property7 .Is insufficient to meet the requirements of the Statute of Frauds.</p> <p>3. Same.</p> <p>A writing which refers to an unsigned, memorandum, but suggests 'the-substitution of a different' subject matter, and inquires if it was wanted,' is not sufficient to make out a valid contract of sale under the statute.</p>

<p>Appeal by defendants from judgment of the Fourth Judicial District Court.</p>

<p>1. Counterclaim — Must belong to .defendant.</p> <p>Only claims which belong to ■ the defendant ican be allowed as counterclaims.</p> <p>2. Same — Agreement tó make deposit on future purchases.</p> <p>A counterclaim for breach of an agreement to deposit a certain sum upon furniture to be purchased of defendant when plaintiff got married is properly disallowed, where the agreement does not specify the Quantity or quality of such furniture or its value and'the marriage' has. not yet occurred, as in such case there is no basis on which the. damage arising from the breach can be measured.</p>

<p>Appeal from judgment of Fourth Judicial District Court. Action for money had and received.</p>

Appeal by landlord from final order made by the justice of the Eighth Judicial District Court on verdict of jury in favor of tenant.

a writ of mandamus requiring the board of auditors of the town of Champlain to reconvene and audit a .claim presented by relator for making an arrest as deputy sheriff.

<p>1. Pleading — Joinder.</p> <p>Section 454' of the Code is not confined in its .operation to actions where the defendants are severally liable for or in respect to the same indebtedness, but authorizes the joinder in one action of causes of action against several defendants individually arising out of a single contract in which all of them united.</p> <p>3. Same — Lloyds insurance.</p> <p>An action upon a policy of Lloyds insurance may be maintained, under section 454 of the Code, against two or more of the underwriters who were parties thereto.</p>

<p>Dower'— Inconsistent provision in will — Election.</p> <p>A provision in a will giving the entire estate to the widow so long as she remains such, arid directing that in case she remarries., shd may retain oné-third o£ the estáte, the balance to be divided; share and share alike, between testator’s children, is inconsistent with a claim of dower, and puts the widow to her election!</p>

<p>1. mechanic’s lien —: Pleading.</p> <p>. The complaint in an action to foreclose a. subcontractor’s lien under sections 1824-1838 of the Consolidation Act must set forth the contract with the city, its performance, and the liability which has arisen under it to the contractor, in the same manner as the latter would be required to do if. he were suing the city upon it. .</p> <p>2,. Same — Personal judgment against contractor.</p> <p>There is no provision in the statute for *a personal judgment . against the contractor in such a case.</p>

<p>Dower;— Election.</p> <p>A devise of the .residue equally to the widow, son and daughter, “ share and share alike,” is inconsistent with the right of the widow to claim dower, and puts her to her election as to the residuary estate. ' •</p>

, a justice of the peace of Johnstown, H. Y., against the defendants and appellants, Moore and Frederick, for $64.88, recovery and costs. . The action was brought to recover .upon an undertaking given by the defendants as sureties thereon for one Charles Moore, putative father of a bastard.

<p>Motion for a new trial on the ground of. newly-discovered evidence.. ‘</p>

<p>Partnership — Dissolution — Receiver,</p> <p>A receiver should not be appointed nor an injunction granted in an action to dissolve a partnership where the partnership is denied and the affidavits do not clearly show that the partnership exists in fact or that the fund is in, danger;,</p>

<p>Attachment — ¡Preference by insolvent corporation.</p> <p>The mere fact that a corporation, in contemplation of insolvency, has paid creditors who are its officers in property belonging to the corporation, thus preferring such creditors contrary to the provisions of the statute, in the absence of proof of actual, intentional fraud, is insufficient to justify the granting of an attachment.</p>

<p>1. Service — Order for publication.</p> <p>In order to give the court jurisdiction to grant an order for service by publication in an action against a foreign corporation, all the facts required by section 1780. of the Code must be set forth in a verified complaint.</p> <p>2. Same — Amendment of pleading.</p> <p>Where the defect in the original complaint is ■ jurisdictional, an amendment nunc pro tunc is of no avail.</p>

<p>Motion by the purchaser at a sale in partition to be relieved from his purchase.</p>

<p>Motion for stay of proceedings.</p>

<p>Motion by defendant for an order requiring the plaintiff to pay the sheriff’s fees.</p>

<p>1. Partition — Reference,</p> <p>The mere fact that an interlocutory order of reference in an action of partition contains a clause authorizing the referee to try issues raised by an answer does not deprive the court of power to review the report and correct erroneous conclusions of law therein upon motion for confirmation.</p> <p>2. Dower — Mortgage by doweress.</p> <p>A widow by joining in a conveyance or mortgage of land in which she has a dower right, without reservation of her dower right, becomes estopped from claiming dower in the premises.</p>

<p>Motion by plaintiffs for a new trial on the minutes after dismissal of their complaint.</p>

<p>Motion by plaintiff for new trial after dismissal of his complaint. •</p>

<p>Vendor and purchaser — Bescission of contract — Gold clause In mortgage.</p> <p>A purchaser of real estate at auction, subject to a mortgage, is not entitled to rescind the contract and recover the deposit and expenses merely because an examination of. the title discloses the fact that the mortgage is payable in gold. '</p>

<p>Motion on original papers to vacate attachment.</p>

<p>1. Mechanic’s lien — Action on bond to discharge lien — Pleading.</p> <p>The complaint in an action upon a bond given to discharge a mechanic’s lien need not allege añ assignment of the bond to the plaintiffs; an allegation that an order was duly made allowing the plaintiffs to commence an action in their own names on the bond is sufficient.</p> <p>2. Same — Amount of bond.</p> <p>An allegation that the amount of the bond was duly fixed, in connection with a further allegation that an order was duly made approving the bond and directing the discharge of the lien, is sufficient.</p> <p>3. Same.</p> <p>Where the complaint sets forth a proceeding for the cancellation and discharge of a mechanic’s lien and alleges that the bond in suit was given in that proceeding, it is not necessary to specifically allege that it was given “ in an action or special proceeding."</p>

<p>Motion to vacate an order of arrest.</p>

<p>Hotion for a new trial.</p> <p>Action for libel.</p>

<p>1. Res adjudicata — Orders.</p> <p>While orders made on contested motions are not regarded as res adjudicata in' the same sense as judgments, the court should not disregard such orders or decisions when called upon to pass upon substantially the same question in the same action.</p> <p>Z. Partnership — Dissolution — Payment of debts.</p> <p>The receiver appointed in an action for an accounting and settlement of a partnership will not be directed, on motion either of one of the firm or of creditors, to make payments under the judgment rendered in such action while an appeal from such judgment is pending.</p> <p>3. Same — Appeal — Parties.</p> <p>Creditors who have been allowed, to intervene and prove their claims before the referee in such an. action, and whose respective rights have.been fixed by the judgments, are to be regarded as parties to the record, and are entitled to notice, of appeal if their rights are intended to be affected thereby. ■</p> <p>Appeal — Time for.</p> <p>Where there has been no service of a copy of the judgment and notice of its entry, an appeal may be perfected by service upon parties who have been omitted by mistake.</p>

<p>1. Foreclosure — Pleading — Interest o£ defendants.</p> <p>In an action of foreclosure, to which all persons having any interest in the property subsequent to the mortgage are made parties, it is not necessary to allege or prove the nature of the interests, of the several defendants.</p> <p>2. Judicial sale — Belief of purchasers — Hearsay evidence.</p> <p>Where all persons having an interest subsequent to the mortgage were made parties to an.action of foreclosure, the purchaser at the sale will not be relieved from his purchase on the ground that hearsay evidence was received on the trial as to the respective interests of the ' defendants.</p>

<p>1. Supervisors — Audit of accounts.</p> <p>An examination of the various items of an account, and the dis-allowance of a single item, is an audit of the account.</p> <p>8. Same — Mandamus.</p> <p>Where the proof as to the rendition of the services charged for in a claim for services performed in a criminal case is not conclusive, but is such as to require the supervisors to examine the proof and determine the fact, they act judicially, and their action cannot be reviewed by mandamus.</p>

Plaintiff and one Purvis had purchased from the defendant the furniture, etc., in a restaurant in Utica and plaintiff had made a payment thereon of . $50. The venture did not prove successful and no further payments were made. In the meantime a Mrs. Cummings applied to purchase the place. Plaintiff insisted as a condition to her going out that she must have back the $50 which she had paid.

<p>Insurance — Lloyds—Clause requiring suit to be brought against attorneys in fact invalid.</p> <p>The clause in a policy of Lloyds insurance requiring an action thereon to be brought against the attorneys in fact of the underwriters, who were not parties to the contract, is void as against public policy.</p>

<p>Motion for a new- trial after a judgment of nonsuit. -</p> <p>Action for injuries alleged to have been caused .by defendant’s negligence.</p>

<p>Will — Provision in lieu of dower — Effect of exchange of property.</p> <p>Testator, by his will, gave to his widow, in lieu of dower, and in addition to other provisions made for her, the house in which they resided. The other provisions referred to gave her a life interest in one-sixth of the estate. Subsequent to the making of the will the house, so. devised to the widow, was sold and conveyed by a deed in which she joined; and a more expensive house was purchased in its plane. Held, that testator’s intention to provide a home for the widow was defeated by such exchange, and that she was not entitled to take the substituted house, but only to dower therein to the ame.unt received on the sale of the one so devised to her, and that if she elected to take under the provisions of the will she was not entitled to dower In any of the other real estate.</p>

<p>1. Usury —.Option to purchase stock,</p> <p>The exaction of an option to purchase stock at a fixed price, in addition to lawful interest, as a condition of making a loan, is a violation of the usury statute;</p> <p>Si Same.</p> <p>Chapter 237, Laws, of 1882, has no application to such a case.</p> <p>3. Same — Private bankers.</p> <p>The provisions of the Banking Law exempting banking associations and individual bankers from forfeiture of the principal for usury apply to private bankers.</p>

<p>Certiorari to review assessment of relator’s property for personal taxes-for the.year 1894.</p>

<p>Certiorari to review assessment of relator’s personal property.</p>

Action to compel the award of a franchise to the plaintiff, out that the sale thereof be set aside and a new sale ordered.

<p>Appeal from order requiring the answer to be made more definite and certain.</p>

<p>Interpleader — Petition' must show ground of claim.</p> <p>The petition for an order of interpleader under section 115, chapter 689, Laws 1892, in an action against a savings bank must show the grounds of the claim of the person sought to be impleaded.</p>

<p>Appeal from a judgment entered upon a verdict for the defendant, and from an order denying a motion for a new trial. '</p>

<p>Security for costs — Change of residence.</p> <p>. Proof that the plaintiff is engaged in business in Chicago, is. living there and on a recent occasion stated that she did not intend to return to New York is sufficient to sustain an order requiring her to furnish . security for costs • on the ground of change of residence, although she had. informed her attorney prior, to leaving New York that she did not' intend to remove from the city or make her residence in Chicago.</p>

<p>Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court, and from order denying motion for a. new trial.</p>

<p>Appeal from judgment in favor of the-plaintiff, • entered upon a verdict.</p>

<p>Appearance — When general.</p> <p>An appearance for a defendant without limitation or statement that it is special and for the motion only, is general and entitles the plaintiff to act upon it as such.</p>

<p>Contract — liquidated damages.</p> <p>A contract by which one party was to furnish his theatre for a week and the other to furnish a company to play therein, the profits to be .divided, provided that for a violation thereof by either party he should forfeit and pay to the other §500 on demand as liquidated damages. Held, that such sum was not disproportionate to the amount of damages that might reasonably be within the contemplation of the parties, and that it .was' not intended to be a penalty, but the covenant was one for liquidated damages.</p>

<p>Appeal from judgment in favor of defendant, entered on dismissal of complaint.</p>

<p>1. Judgment—• Infancy — Code Civ. Tro., § 1218.</p> <p>Section 1218 of the Code, prohibiting the entry of judgment by default against an infant defendant until twenty days after • the appointment of a guardian ad litem for him, applies .'only to a. case where the infancy is admitted.</p> <p>2. Default — Terms — Infancy of defendant;</p> <p>- Where a judgment by default .has been regularly entered, the plaintiff is not bound by allegations in the moving papers on a motion to open the default to the effect that defendant is an infant, and the court in such case may, in its discretion, impose costs as a condition of granting the motion.</p>

<p>Appeal from judgment in favor of the plaintiff entered upon a verdict.</p>

<p>Appeal from judgment in favor of the defendant, entered upon a dismissal of the complaint. . " .</p>

<p>1. Partnership — Prohibition in articles against indorsements.</p> <p>A provision in articles of copartnership forbidding either party to indorse in the firm name except for the firm’s business is not available as a defense to an action against the firm upon an indorsement, where the holder of the.note had no knowledge of such-provision and the proceeds of the note went to the firm’s credit.</p> <p>2. Usury — Cannot be pleaded by indorser of corporate note.</p> <p>An indorser of a note made by a corporation cannot plead usury.</p>

<p>Action to recover damages for personal injuries.</p>

<p>1. Inspector of gas meters — Mandamus.</p> <p>A manufacturer of gas meters has a right, under sections 62 and 63 of the Transportation Corporations Law, to require the inspector of gas meters or his deputy to inspect his meters, and when inspected and found correct, to seal, stamp or mark them, and in case of his refusal a mandamus will lie to compel him to do so.</p> <p>2. Mandamus — Will not be granted where the facts "aré controverted.</p> <p>A peremptory writ of mandamus will not be granted where the material facts relied on by the relator are denied.</p>

<p>.1,.. Mandamus — Affidavits. u</p> <p>"Opon an. application for mandamus opposing affidavits which, are ¡Utispecifío .and indefinite or which are based upon information and belief wtU ecrt be considered.</p> <p>Elections — Political organizations — Enrollment.</p> <p>It is doubtful whether a regulation of a political organization that no -one can be enrolled or vote at a’ primary who nad not voted the . ticket of the party at the last election is reasonable or lawful.</p> <p>3. Same — Primaries.</p> <p>The question whether a person is entitled to be enrolled in a political organization and to vote at its primaries does not depend upon the discretion nor upon the decision of the enrolling committee, but upon the fact of his possession of the necessary requirements.</p>

<p>Chancery fund — Disposition of.</p> <p>The court will not interfere with the possession by the state of the chancery fund for the benefit of eleemosynary or charitable institutions; the only parties having a legal right to move the court with reference to this fund are the - owners now unknown or their legal representatives, and the state, its custodian.</p>

<p>1. Evidence — Consideration for assignment.</p> <p>The actual consideration for an assignment of a contract for the purchase of real property may be shown by parol.</p> <p>2. Contract — Breach of agreement by assignee of real estate con-</p> <p>tract to make payments.</p> <p>Plaintiff, who held a contract for the purchase of certain real estate, assigned the contract to defendant, who agreed to make the payments according to the terms of the contract, but failed to do so. Held, that defendant’s contract was not one of indemnity, but an absolute one to make the payments, and that plaintiff could recover the amount thereof, although he had not been called upon to pay them himself.</p>

<p>1. Municipal corporations—¡Negligence — Encroachments on streets.</p> <p>Negligence of a municipal corporation in failing to, remove an encroachment upon a street cán only be predicated upon an encroachment essentially dangerous or likely to become so.</p> <p>• 2. Same.</p> <p>A show case standing upon the sidewalk near- the curb, , securely fastened to - a post, and for which no permit had been obtained, was knocked over by a cart which backed against it, • was again set up without being fastened, and the following day was blown over by the wind upon the plaintiff. Held, that the city was not liable for such show case as a nuisance of its creation; that the time which elapsed from its collision with the cart was insufficient to impute notice of its dangerous condition to the municipal authorities, and that the city was not liable.</p>

<p>limitation — Checks.</p> <p>The payee' of a check held the. same for fourteen years before presenting it at the. bank upon which it was drawn, when payment was refused on the ground that the drawer had ho funds on deposit. Held, that such, presentment was not made within a reasonable time, and that the right of action against the drawer of the check was barred by the statute. , . ■' - ■.</p>

<p>1. Summary proceedings — Defective.petition—^ Warrant furnishes no protection to landlord.</p> <p>A judgment of dispossession, entered in a proceeding instituted upon a petition which was defective by reason of a failure of the notary to sign the jurat, in which there was ho appearance by the tenant, is void and furnishes no protection to the landlord.</p> <p>2. Same — Amendment of petition.</p> <p>A justice cannot, by amending the petition in a particular which is necessary to give him jurisdiction, acquire an authority nunc pro tunc.</p> <p>3. Trespass — Damages.</p> <p>Where the judgment of dispossession was void because of a jurisdictional defect in the process, but the landlord acted in good faith, the tenant had ño existing right to possession and the trespass was not accompanied by bodily fear or circumstances of aggravation, compensatory, damages only may be recovered.</p>

<p>Motion by plaintiff for an aw,ard of treble damages.</p>

<p>Action on an insurance policy.</p> <p>.Defense,, lapse. Jury waived.</p>

Motion made by. defendant for retaxation of costs. . The action was originally brought in the City Court of IJtica, and from a judgment then rendered an appeal was taken to this court for a new trial. The case was tried at the November term, 1895, of this court and a verdict rendered ■ in favor of defendant. That motion was set aside by the trial judge on the ground that the evidence did not, as matter of law, establish any defense.

<p>Demubbeb to an answer.</p>

Appeal by the 'defendant from an affirmance by the City Court, General Term, of a judgment in favor of the plaintiff, entered upon the verdict of a' jury. The action was to recover $1,000 upon a policy of marine insurance for the loss of the canal boat “Agnes H,” which stink off Weehawken, with a cargo of coal, while towing from Guttenberg, on September 16, 1893.

'Appeal by defendant from a judgment of-the City Court, reversing an interlocutory judgment overruling a demurrer to a counterclaim and directing judgment in favor of the plaintiff for costs and execution therefor.

Appeal by the plaintiff from an affirmance by the City Court of a judgment in favor of the defendant McKeon, entered upon the verdict of the jury, and from an order denying a motion for a new trial. v The action was upon a promissory note for $160, dated February 2, 1891, at three months, made by the defendant McKeon to the order of the defendant Smith, and indorsed by plaintiff at the request of Smith, who then indorsed it and delivered it to one Russell, before maturity,…

Appeal by the plaintiff from an order of the General Term of the City Court of New York, reversing a judgment in her favor, rendered by the trial judge, without a jury, and ordering a new trial.

■ Appeal by defendant from an affirmance by the General Term of the City Court of a judgment for' the plaintiff, entered upon a verdict of a jury, and the affirmance of an order denying a motion for a new trial. Action to recover' for professional services, as attorney and counselor at law, rendered to the defendant.

■ Appeal by defendant from judgment of the General Term of the City Court, affirming judgment in favor of the plaintiff at trial term. . - •

<p>Appeal from the affirmance by the City Court of New York, at General Term, of a final judgment entered upon an order overruling a demurrer to the complaint, interposed upon the ground of insufficiency in substance. ■</p>

<p>Appeal by defendant from judgment of the City Court, General Term, affirming judgment of the trial term in favor oí plaintiff.</p>

<p>Motion by defendant-appellant for leave to appeal to the. ^Appellate Division, under rule VII of the Appellate Division, regulating the. hearing, of appeals from the City and District Courts. '</p>

<p>Appeal Reargument. ■</p> <p>A reargument will not be granted unless the moving papers- show that seme question decisive of the case and duly submitted has been overlooked; that the decision is in conflict with an express statute or ' at controlling decision which has been overlooked or not called to the court’s attention through inadvertence of counsel, or that the ques- } tio-n involved has since been decided adversely by the Appellate ! Division or the Court of Appeals.</p>

<p>1. Appeal — Reargument.</p> <p>• A reargument will not be ordered because the case, was decided on a point not raised in the court below ñor discussed iñ the opinion, where such point was raised On the hearing and suggested by the facts.</p> <p>2. Same.</p> <p>Nor will a reargument be granted on the ground that Certain testimony was overlooked, where such testimony would not alter the result, S." Same — Leave to appeal.</p> <p>Leave to appeal will not be granted where the questions of law arise on facts peculiar to the case and do not appear to be of genera® interest or to affect other pending Or probable litigation.</p>

Appeal by plaintiff from a judgment in favor of defendant, rendered by the justice of the First District Court for costs. The action was to recover for goods sold and delivered, to-wit, three tons of sheep manure, at $38 per ton, amounting to $114, with interest from June 1, 1895.

<p>Appeal by plaintiff from a judgment in favor of the defendant, rendered by the justice of the Second District Court. The action was brought against the defendants as acceptors of the following statement:</p> <p>“Alexander & Alexander,</p> <p>“Real Estate and Loans, 246 Fifth avenue (cor. 28th st.).</p> <p>“ Few York, July 24, 1895.</p> <p>“ -My Dear Sir.— Please' pay to bearer the rent due August 24th, amounting to $38.00. .</p> <p>“ Laura V. Brewster:</p> <p>“Wé accept this, .</p> <p>“Alexander & Alexander.” .</p>

■ Appeal by the plaintiff from a judgment of the Sixth District '«Court in favor of the defendant.

<p>Appeal by the defendants from a judgment of the.. District Court in the city of Hew York for the Eighth Judicial District, in favor of the plaintiff,, which wds rendered upon the verdict of a jury. •</p> <p>_ ■Action for money had and received to the "use of the plaintiff.</p>

<p>Arpead from a judgment ■ in the plaintiffs’ • favor which was rendered, by the District Court in the city of New York- for the . Ninth Judicial District upon the verdict of a jury.</p> <p>The action was to recover for goods sold and delivered, to which .(¡he defendant interposed a counterclaim far' work, labor and services, and materials furnished. 1'</p>

the city of Hew York for the.First Judicial District, rendered by the justice, in an action tried without a jury,;in the defendant’s favor. Action by the. lessor against the lessee of an apartment dwelling to recover a monthly installment'of the rent. • The defense litigated was that of constructive eviction and abandonment of the'premises.

<p>1. Conditional- sales — Failure to file agreement — Pledgee.</p> <p>A conditional sale agreement, although not filed, is valid as against one to whom the vendee has pledged the goods; a pledgee not being a purchaser or. mortgagee within the.meaning of the statute.</p> <p>2.. Pledge — Title.</p> <p>An unauthorized pledge to one having no notice that another is the true owner vests no title in the pledgee.</p> <p>3. Replevin — Demand — Waiver.</p> <p>An objection that no demand for the goods has been shown is waived unless taken on the trial.</p>

<p>Contract — Fraud — Evidence.</p> <p>A misrepresentation as to the future details of a performance off a contract is not such fraud as can avoid -it, and evidence thereof is incompetent, in an action upon the contract, to sustain a defense oí fraud.</p>

. Action by subcontractors against the owner and the administrator of the deceased contractor for the foreclosure of a lien claimed pursuant to the provisions of the Mechanics’ Lien Law (chap. 342, Laws of 1885), and for judgment for any deficiency.

<p>Appeal by defendant from judgment of the Fourth Judicial District Court.</p>

<p>1. Lien — Voluntary storage of goods.</p> <p>In the absence of any agreement therefor,, a mere volunteer who accepts the temporary custody of goods has no lien thereon for storage.</p> <p>2. Evidence — Waiver of objection.</p> <p>Where evidence is admissible to sustain one defense, an objection to its admissibility as sustaining other defenses is not waived by a failure to object.</p> <p>8. Conversion — Judgment. •</p> <p>Where the pleadings in an action for conversion of property are oral and the complaint does not disclose whether it is for replevin or trover, and the plaintiff was not compelled to- elect or to make the complaint more definite and certain, a judgment for the return of the property or its value is proper.</p>

<p>Brokers — Commissions.</p> <p>Plaintiffs were employed by defendants to procure a purchaser for the lease and fixtures of a saloon, the contract of employment requiring that the customer should be introduced to defendants and the contract closed at their office. Plaintiffs negotiated with one B., but did not introduce him to defendants nor even mention his name to them or theirs to him. B. was dissatisfied -with the price and dropped the negotiation on that account, but subsequently, noticing that the place was empty, made inquiry • as to the owners' and purchased' it of defendants at a smaller price than that first offered. Held, that plaintifts were not entitled to commissions on such sale.</p>

<p>Action for construction of will.</p>

<p>Aotior to. enforce a supposed testamentary trust in favor of the plaintiff, and demurrer to the complaint..</p>

<p>1. Excise — Proximity to schools.</p> <p>Uner1 the sdtatute prohibiting the granting of a license to sell strong ór spirituous liquors in any building on the same street and within 200 feet of a building, occupied exclusively as a schoolhouse, the distance to be measured from the center- of the nearest entrance of the school building to the center of the nearest- entrance of the place for which the license is- solicited, a license is rightfully refused for a building on the same street with a schoolhouse, the entrance to the former, though on another street, being still within the prohibited proximity. .</p> <p>2. Same — Exclusive use of building for á school.</p> <p>A building used exclusively for school purposes, except that certain persons, not teachers in the school but teachers by profession and members of the brotherhood by which the building is owned and the school conducted, live therein and pay for their board, is “ occupied ' exclusively as a schoolhouse ” within the meaning of such statute.</p>

Action to enforce statutory liability of trustee for failure to make annual report of condition of manufacturing corporation.

<p>1. Taxes — Assessment — Assessors cannot impeach, validity of;</p> <p>Assessors will not be heard to .impeach .the good faith and verity of their acts.</p> <p>2. Same — Designation of property by lot and block number.</p> <p>The requirement in the charter of Brooklyn that property shall be designated in the assessment:roll by lot and block' number applies only to lots, and not to railroad tracks and telegraph lines.</p> <p>3. Samé — Review of.</p> <p>A review of assessments for alleged inequality or excessiveness cannot be had in a collateral proceeding, but only by certiorari.</p> <p>4. Same — Reduction.'</p> <p>The court has no power to reduce taxes or assessments upon the consent of city, officials.</p> <p>5. Same — Excessive assessment — Railroads.</p> <p>An. assessment against a railroad will not be held.to be excessive on the ground that it is unable to pay the tax out of its net income, where such inability is the result of an excessive issue of stock and bonds. ■</p>

<p>1. Bridges — Powers of commissioners under chapter 789, Laws 1899.</p> <p>Chapter 789, Laws of 1895, authorizing the mayors of New York city and Brooklyn to construct a bridge across the-East river, provides for the taking of existing companies’ rights only to. the extent that they may be found in the way of the line to be selected by the commissioners.</p> <p>2. Same — Umlocated line cannot be acquired.</p> <p>Where a bridge company has actually located a line for its bridge the commissioners have a right under the act to purchase its rights and franchises, but a company which has merely a right to locate within a specified territory, which it has not exercised, has no exclusive right therein, and a use of the public funds in the purchase of its rights would constitute waste.</p> <p>3. Same — Provisions as to railroad tracks and facilities.</p> <p>A contract made by the commissioners appointed under chapter 789, Laws of 1895, for' the purchase of the rights of an existing bridge company contained a provision that the completed bridge should contain space for two separate and independent railroad tracks for the exclusive use of elevated railroads, and -that the bridge should have ample terminal facilities for such railroads not extending beyond the approaches of the bridge. Held, that such provision was not authorized by the act and was improvident.</p>

Motion by plaintiff and -respondent to vacate the judgment entered herein on the 23d day of January, 1896, and the execution issued thereon, on the ground, ¡with other reasons, that the judgment is not in conformity to the decision which was rendered by the court in the above appeal. The.décision wás, in -brief, that the judgment below should be reversed.

<p>1. Constables — Action for fees — Evidence.</p> <p>In an action by a constable to recover fees for the service of a summons the justice’s docket is competent evidence to show the rendition of the service.</p> <p>2. Same — Payment.</p> <p>Nonpayment to the constable by the plaintiff of his fee is not shown by the entry of judgment in the docket or by testimony of the justice that the fees had not been paid, where the- latter made no claim of knowledge of transactions between the plaintiff and the constable.</p> <p>3. Same — Affidavit of travel.</p> <p>A blank affidavit as to travel which does, not contain the constable’s name and is signed only by the justice is' not a compliance with section 3324 of the Code and does not entitle the constable to mileage.</p> <p>4. Tender — Must be kept good.</p> <p>To effect a tender it must be shown affirmatively that the money was tendered unconditionally; that it has been kept ready at all times to pay on demand, and it must be brought into court and deposited at the time of answering.</p> <p>5. Same — Waiver of failure to deposit.</p> <p>■ A failure to keep a tender good or to bring it into' court is not waived in an action in justice’s court by riot objecting on that ground.</p>

<p>Demurrer to complaint.</p>

<p>Demurrer to complaint.</p>

<p>Application for order directing the payment of certain moneys to the petitioner.</p>

<p>1. Contract — Entire or severable.</p> <p>The acts or consent of the parties may make an entire contract divisible.</p> <p>2. Same — Acceptance of part delivery..</p> <p>A contract provided for separate deliveries of a certain quantity of goods, and that upon delivery of the first installment the vendee would pay for certain other goods previously received. Upon a delivery of a part of the first installment the vendee made the payment provided for. Held, that this showed that he was satisfied with the delivery made, and that he was liable for the goods actually delivered.</p>

Trial, of issues in an action -brought to recover $10,000 damages for an alleged reading or publication by defendant to third persons of a letter concerning the: plaintiff, and alleged to be libelous. The facts, so far as they are material, are stated in the charge.

<p>Motion for an injunction pendente lite.</p>

<p>Application for peremptory writ of mandamus.</p>

<p>Demubreb to complaint by defendant Flannagan.</p>

<p>Action to foreclose mortgage.</p>

<p>¡Demurrer to complaint.</p>

<p>Appeal from judgment in favor of the plaintiffs.</p>

<p>1. Brokers — Commissions.</p> <p>To entitle a broker to commissions it is sufficient that a sale is effected through his agency as its procuring cause, and if his communications with the purchaser are the means of bringing him* and the owner together, and a sale results in consequence, the commission is earned although the broker does not negotiate and is not, present at the sale. '</p> <p>8.. Same.</p> <p>Nor is it necessary, in such a case, that the sale must be made at the original terms given to the broker.</p> <p>3. Trial — Refusal to charge.</p> <p>A request to charge which, in effect, requires the court to determine a question of fact is improper, and a refusal to comply therewith is not error.</p>

<p>Appeal by plaintiff from judgment of nonsuit.</p>

<p>Appeal by defendant from judgment on verdict and order denying new. trial. "</p>

<p>. Appeal by defendant from judgment on verdict and order denying new trial.</p>

<p>Negotiable paper — Proof of title, when necessary.</p> <p>Where the plaintiff, in an action against the. maker of a promissory-note, claims title directly from the payee, and the .question of title is at issue, he must prove the same either by showing that the payee wrote or authorized .the writing of his name upon the noté, or that the samé came to him by assignment, parol or written, from the payee, or that title came to him by operation of law; mere production of the note, in such a case, is insufficient to raise a presumption in his favor.</p>

<p>Trial — Weight of evidence.</p> <p>Weight of evidence is not determined by the number of. witnesses, but the quality of the testimony, and this is a question for the jury.</p>

<p>Estoppel — Equitable judgment.</p> <p>In an action upon an undertaking of bail given in ail action for conversion of mortgaged chattels, the defendants set up a judgment in an equitable action brought by a firm of which one of the sureties was</p> <p>a partner against the plaintiff in which it was adjudged that the lien of the latter was prior to that of said firm only to a specified amount and that he had realized such amount by a sale of -the chattels which were found. In the action for conversion the principal admitted that the amount claimed to be secured by the mortgage was due. Held, that such judgment did not operate as an estoppel.</p>

<p>Appeal by defendant from judgment .on verdict and order' denying new trial.</p>

<p>Mechanic’s lien — Owner not aggrieved by judgment in favor of lienors against contractor.</p> <p>In an action by a contractor upon a bond given to discharge a lien, the court adjusted the claims of several.lienors defendants, and directed that they might take judgments against the plaintiffs. Held, that the owner and his sureties were not aggrieved -by such direction.</p>

<p>Depositions — Physical examination of plaintiff.</p> <p>On motion to set aside an order for the physical examination of a female plaintiff on the ground of the insufficiency of the papers, the order1 will not be vacated solely because it requires the examination to be made by- a male physician, where no effort has been made to have it modified so as to provide for an examination by a physician of her own sex.</p>

Appeal.from judgment in favor of the plaintiff, entered upon- ■ a verdict directed by the couirt, and from order denying- a motion1 for1 a new trial.

<p>S3viden.ce — Opinions — Experts.</p> <p>In an action for work, labor and services, a civil engineer, who has heard the .services described by another witness, may be asked his opinion as to the reasonable value of such services, and the question need not be put in hypothetical form.</p>

<p>Appeal from judgment in favor of the defendant.</p>

<p>Service — By mail.</p> <p>A deposit in' a mail-box prior to the last regular tour for .the collection of mail matter from the mail-boxes is sufficient and constitutes due service by mail.</p>

Motion by receiver in supplementary proceedings to punish the judgment debtor, Fitzpatrick,- as for a contempt in refusing to pay over certain moneys to said receiver.

<p>Motioh for retaxation of costs.</p>

<p>¡Mechanic’s lien — Bight to file may be waived.</p> <p>A contractor may, by an independent covenant in the contract not to do so, waive his right to file a mechanic’s lien; and where he does so," any interested party may demand strict performance thereof.</p>

<p>Action to recover rent due upon a lease.</p>

<p>Insurance (Life) — Breach of warranty — Waiver.</p> <p>The application for a policy of life insurance stated that no proposal to insure the applicant’s life had ever been postponed or declined, or had ever been made upon which a policy had not been received. Prior thereto, an application had been made to another company, the medical examiner of which was also the examiner of the defendant, who filled the blank answers by medical examiner in both; but, wishing to place the risk in the .defendant company, made a statement in the other application, that' the applicant had asthma and advised a rejection thereof, all of which facts he stated to defendant’s vice-president before the application was accepted.. Held, that, under these circumstances, the defendant could not claim a- forfeiture on the ground of breach of warranty by reason of fraud and falsehood.</p>

<p>Assault — Pleading.'</p> <p>A complaint in an action fo'r assault which merely alleges that defendant and two of his agents entered plaintiff’s apartment and that one of such agents assaulted the plaintiff, without alleging that such act was done in the defendant’s business, or that he instigated, aided, abetted or sanctioned such act, is insufficient.</p>

<p>Interpleader — Sayings banks.</p> <p>On petition of a savings bank sued for a deposit, showing that any person not a party to the action also claims the deposit, the court must make an order amending the proceedings by making such person a party defendant. It is not necessary to show the nature of the action, or that the bank cannot decide between the claimants without hazard to it.</p> <p>Mahro v. Savings Bk., 16 Mise. Bep. 275, reversed.</p>

<p>Appeal by defendant from an affirmance, by the General Term of the Oity Court, of a judgment in favor of plaintiff entered on the verdict of a jury; and of an order denying defendant’s motion for a new trial on the judgejs minutes. • '</p> <p>The action was to recover for money loaned, as alleged by plaintiff, to -defendant. The defense was a general denial, and an averment that the loan was not made to the defendant hut to one Charles A. Tompkins, and was repaid by him.</p>

. Appeal by defendant from affirmance by the General' Term of the Gity Court .of an order denying' a motion made by the defend- • ant to set aside the service of a summons bn the ground that, being a resident of Massachusetts, he was within the city of New York for the purpose of giving his testimony as a witness in an action here when the summons was served upon him. • Motion by plaintiff, respondent, to dismiss the appeal on the • ground that after the .denial of the…

Appeal by the defendant from an-affirmance, by the General-Term of the City Court, of a judgment for $459.53, entered upon the verdict of a jury in favor of the plaintiff for $112.50, and affirming an order denying the defendant’s motion for a new trial. The action was brought upon a contract for services as actor and stage manager, to recover damages for the wrongful discharge of the plaintiff by the defendant' on December 20, 1890.

Action to recover against the defendant corporation as the successor in interest of another corporation, and upon an alleged contractual assumption by the former of the latter’s liabilities.

motion to vacate an order sending a cause from the special calendar to the foot of the general calendar after the trial had been entered upon.

<p>Negotiable paper — Payment — Accord and satisfaction.</p> <p>A part payment made by the payee of a note to the holder, and the giving by him of a new note' fox the balance does not, where no additional security is given and the original note is not surrendered, operate as an accord and satisfaction or a payment in favor of the ■maker.</p>

<p>judgment — Entry after settlement — Attorney’s lien.</p> <p>A judgment which has been entered by plaintiff’s attorney after a settlement made by the parties, although in ignorance thereof, is irregular and will be set aside, in the absence of proof that such settlement was collusive .or the plaintiff irresponsible.</p> <p>Pub. Printing Go. v. Gillen Printing Go., 15 Mise. Rep. 464,. reversed.</p>

<p>1, Replevin — Justification of sureties — Code, § 580.</p> <p>The provision of section 580 of the Code limiting adjournments in proceedings for justification of sureties to the next judicial day is directory, and not mandatory, and does not render a reasonable adjournment illegal to the extent of impairing the proceedings</p> <p>2, Service — Of papers on attorney.</p> <p>An attorney cannot, by absenting himself "from his office for any reason, relieve himself or his client from the effect of the service of papers legally made.</p> <p>3, Same.</p> <p>Service of a paper by leaving it at the attorney’s office after 4 o’clock in the afternoon of the last day is sufficient.</p>

Appeal by. plaintiff from, order of the City Court, General Term, reversing judgment in its favor and granting a new trial.

<p>Appeal from, affirm anco "by the General Term of the..-City Court of New York, of a judgment entered upon a verdict, in favor of the plaintiff .</p>

Action to recover damages for' injury to personal property alleged to have been caused by. the negligence of the defendant’s employees.

<p>Appeal from a judgment for the plaintiff, rendered by the District Court in the city of New York for the second judicial 'district. ' '</p> <p>Action for work, labor and services, and materials furnished. "</p>

Appeal- by the. plaintiff from a judgment of a District Court, dismissing the complaint without prejudice to a new action, and without costs. The defendant was sued for conversion, and failed to appear or answer.

Appeal by the, defendant from a judgment of the justice of the Eighth District Court in favor of the plaintiff for $82.50, besides costs, in an action for work, labor and services rendered by plaintiff’s assignor, Dora Schwartz; at the request of the defendant.

<p>Appeal from a judgment for the defendant rendered by the-District Court in the city of New York for the first judicial district. Action for the conversion of a chattel.</p>

<p>Appeal from a judgment for the defendant rendered by the • District Court in the city of New "York, for the sixth judicial •district. .</p> <p>Action for work,, labor and services rendered, and materials furnished.</p>

<p>1. - Sale — Warranty.</p> <p>If tli'e language actually used at the time of the sale, upon a fair construction, amounts to or is equivalent to an undertaking .on the part of the owner that the 'property is what it is represented to be, this is sufficient to create a warranty..</p> <p>2. Same. .</p> <p>A decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon which the vendor has no special knowledge and on which the buyer may be expected also to have .an opinion and exercise his judgment.</p> <p>3. Same — Damages.</p> <p>Where a manufacturer knows that the article is to be used by the vendee in a specified manner, and that such use in connection with other articles may, if the warranty fail, damage the vendee, consequential damages are recoverable for a breach of such warranty.</p> <p>4. Same.</p> <p>Plaintiffs manufactured umbrella covers for the defendants, to be placed on umbrellas to be sold at the Chicago fair, and in making the contract assured them that the color would not come off. When the time to sell the umbrellas arrived, it was found that they had turned red, the color of the covers, and defendants were obliged to sell them at a reduced price. Defendants paid for the covers which were torn and returned the balance, which were retained. In an action for the purchase-price, held, that the assurance amounted to a warranty and' that defendants were entitled to recover on their counterclaim ■ for the loss on the sale of the umbrellas caused by the damage thereto.</p>

<p>Appeal by defendant from judgment of the Sixth Judicial District Court.</p>

<p>Patents—Master and servant.</p> <p>An employee who has been hired without regard to his inventive faculties, and for no definite term, does not part with his right to prior inventions by constructing an experimental machine for the use of his employer, for which he receives no additional compensation.</p>

<p>Certioraris to review the determination of the town clerk of the town of Colonie.</p>

<p>"‘Motion for writ of peremptory mandamus.</p>

<p>Proceeding for the determination of the proportionate amounb of the indebtedness of the town of East Chester which should be paid by the city of New York.</p>

<p>1. Nuisance — Liability of owner of building.</p> <p>An owner of a building cannot escape liability for a violation ofc a statute in its construction by making a contract with another to-commit the wrong for him.</p> <p>2. Same — Negligence.</p> <p>No degree of care will excuse the creator of a nuisance, and, there fore, negligence is not generally regarded as a factor.</p> <p>?. Same — notice not necessary.</p> <p>The creator- of a nuisance is liable without notice.</p>

<p>Negotiable paper — Bight of holder before maturity to enforce, not affected by knowledge that it is accommodation paper.</p> <p>■ The right of a transferee of a note before maturity, for value, to enforce the same, where no diversion or fraud is claimed or shown, is not affected by the fact that he knew it was accommodation paper at the time of the transfer.</p>

<p>1. Common carriers — Liability for loss of baggage.</p> <p>Where a trunk has been accepted, merely as a passenger’s baggage, or as containing goods intended for his personal use on the particular journey, without charge, the carrier is not' liable in case of its'loss for merchandise contained therein, intended for sale, or even for samples to effect sales.</p> <p>2. Same — Damages.</p> <p>In an action against á common, carrier for loss of baggage, the measure of damage is the value of the articles for use by- the plain* tiffj and not their market value.</p> <p>3. Same — Pleading.</p> <p>Where the complaint itemizes the loss, placing a separate value on each article of “ about ” a certain sum, the recovery cannot exceed the aggregate of such sums with interest.</p>

<p>Action against obligors on bond.</p>

<p>1. Villagés — Ordinances imposing only a .penalty for violation cannot - be enforced by criminal proceedings.</p> <p>A village ordinance which provides only for a penalty for a violation contemplates only a civil action to recover such penalty, and does not authorize a criminal prosecution.</p> <p>2. Same — Arrest.</p> <p>The provision of the General Village Act giving a police .constable (the right .to arrest a person while in the act of violating a village, ordinance does not authorize an arrest upon a warrant issued long after the violation.</p> <p>3. Criminal law — Information for violation of village ordinance..</p> <p>An information of a violation of a village ordinance which does- not aver that the act was willfully and unlawfully done Is insufficient to authorize the granting of a warrant.</p> <p>4. False imprisonment — Motive.</p> <p>In actions for false imprisonment the motive of the defendant is á .proper subject of investigation to enable the jury to pass upon the question of exemplary damages.</p> <p>5. Same — Damages.</p> <p>The right to exemplary damages cannot he denied in such a case on the ground that plaintiff had previously committed an act for which she would be liable to a village in a civil action.</p>

Atmos to restrain th.e defendant from interfering with the use by plaintiff and others of the alleyway in the rear of the defendant’s premises.

<p>Sale — Warranty of wliolesomeness not implied in sale of canned goods. Ón a sale of food sealed in cans to a consumer by one who did not'' prepare the same there is no implied warranty that it is wholesome or fit .for food.</p>

Action to cancel an assessment of taxes upon lands owned by' the plaintiffs and to set aside a tax sale thereof as a cloud upon title.- The plaintiff, Garrett Toole, while serving as a soldier of the United States in-- the war of the- Rebellion, contracted a disease which so far disabled him that, in 1885, he was allowed a pension, to commence from the 20th of ¡November, 1862.

<p>1. Corporations — Contracts with directors.</p> <p>A contract made with a corporation by one óf its directors is not void, but voidable at the suit of the corporation or of its stockholders, if it refuses to sue. Such a contract will not be set aside, unless it appears that it is one which ought not to have been made, and by means of which the director has imposed upon the company, or taicen advantage of his position to get from it a larger compensation or greater profit than he ought.</p> <p>8. Same.</p> <p>A corporation engaged in the manufacture of plaster which had a small capital and which, by reason .of financial difficulty, had determined to incur no further expense and to close down until it should be deemed advisable to resume work, subsequently entered into a contract with its president, by which he agreed to have the work done, to keep the machinery and tools in repair and furnish supplies until the next annual meeting, for a specified .sum per ton of plaster delivered on .the cars, he having beén the only biddér for such contract. It appeared that the expense of doing the work had previously been about five cents per ton less than the sum specified in the contract, and that ¡since the contract was lét the: company has paid a. dividend of 10 per cent. Held, that such contract was not- an improper one* arid would not be set aside*</p>

<p>Police Appointment — Laws of 1893,-chapter 353.</p> <p>.The board of police commissioners of the town of Flatlands had no power, under the provisions of chapter 353, Laws of 1893, to employ policemen by contract for a year, and such contracts made'by it are not binding upon the police commissioner appointed under chapter 675, Laws of 1895.</p>

<p>1. Sheriffs — Substitution of indemnitors."</p> <p>The court has power, under section 1421 of tíre Cbdé,. as amended in 1887, to substitute the indemnitors of the sheriff in an action" agáinst him.for, wrongful levy, even, where there, have been- successive, levies.</p> <p>Ü. Saíne.</p> <p>Where;- however; the first execution alone has been levied bn the goods, the subsequent, ones having been levied" only op the excess of the- proceeds over the amount of the first, if any, the indemnitors on the subsequent levies should not be substituted.</p>

Action upon a guaranty of payment for goods sold to a third! party; _ _ A jury trial was by the parties waived,- and the issues joined were, upon an agreed state of facts, submitted to the court for decision. The liability of the defendant is sought to be sustained upon the terms contained in the following written instrument: “ Fór a valuable consideration I hereby guaranty to O. N..

<p>1. Negligence — Damages in action by father of deceased, as administrator.</p> <p>In an action brought by a father, as administrator, to recover dam-. ages for the death of his infant daughter, caused by negligence or wrongful act, where he is the exclusive beneficiary, he may recover the entire pecuniary loss, including loss of services of the infant during minority.</p> <p>S. Same.</p> <p>In such "case, it is the duty of the jury to consider the probable earnings of the child over and above her support, clothing and education.</p>

<p>Appeal by plaintiff from judgment of the Eleventh Judicial Disbffit Court in favor of defendant.</p>

<p>Appeal by defendant from judgment of the Eleventh District Court.</p>

<p>Motion by appellant for reargument or for leave to appeal to the Appellate Division. .</p>

<p>Appeal from judgment in favor of plaintiff,, entered upon a verdict. . . ' • '"</p> <p>. . Abram Eling; tor respondent.</p>

Appeal from a judgment entered on the veidiet' of a jiuy in favor of the plaintiff and from an order denying a motion for a new trial

<p>Appeal from order denying motion to vacate order restoring the cause to the calendar. /</p>

<p>Appeal froto order..</p>

<p>Appeal from order vacating levies under an attachment.</p>

<p>' Appeal from judgment in favor of plaintiffs.</p>

<p>Appeal from judgment in favor of plaintiff, entered upon a verdict.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict.</p>

<p>Appeal from order vacating an attachment.</p>

<p>Appeal from judgment in favor of plaintiff.</p>