Volume 16 — New York Supplement

Action by Christine Ott, administrator of John Ott, against the city of Buffalo, to recover for personal injuries to plaintiff’s intestate, occasioned by falling into a sewer. There was judgment for plaintiff, and defendant appeals.

<p>Contempt—Supplementary Proceedings—Refusal to Appear—Defective Affidavit.</p> <p>Although under Code Civil Proc. N. T. § 3441, entitling a judgment creditor to an order requiring the examination of a third person in supplementary proceeding “upon proof by affidavit, or other competent written evidence, to the satisfaction of the judge, ” an. affidavit, on information and belief, is not sufficient to support an order to appear and disclose; still an order made thereon is not' void, and if such person takes no steps to have it vacated, but refuses to appear, she may be punished for contempt.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Walter S. Yates against William H. Appleton, and others for commissions. Judgment for plaintiff, and defendants appeal.</p>

Action by Samuel H. Torrey, Jr., against Henry Standish and Caroline A. Standish, executors of Salem Standish, deceased, to recover upon an open account. There was a trial before a referee, which resulted in a judgment for plaintiff. Defendants appeal.

Action by Stephen B. McKall and others, as the board of health of the town of Franklinville, against John W. Kales, to recover a penalty for violation of plaintiffs’ regulations. From a judgment of nonsuit plaintiffs appeal.

<p>Exceptions from circuit court, Livingston county.</p> <p>Action by Rebecca E. Whiteman against John Hyland and others. Defendant Hyland moves for a new trial on a case and exceptions ordered to be heard at general term in the first instance.</p>

<p>Appeal from Monroe county court.</p> <p>Action by Giles H. Boyd against William Bassett and others to foreclose a lien. Judgment for plaintiff, and defendant Bassett appeals.</p>

Exceptions from circuit court, Monroe county. Action by Ann M. Dill and another, administrators, against Charles W. Voshall, for injuries resulting in the death of Frank Dili. A nonsuit was granted, and plaintiffs move for a new trial on a case and exceptions, ordered to be heard at the general term in the first instance.

Objections by creditors to the account of Edgar D. Mather as assignee for the benefit of creditors of Lincoln A. Mink. The assignee was charged with certain items, and appeals.

Action by the village of Mayville against Mariette Wilcox and another to restrain the erection of buildings. Judgment for defendants was entered in Chautauqua county. Plaintiff appeals.

Action by Frank Fleissner against the New York Central & Hudson River Railroad Company to recover for damages done to plaintiff’s team and wagon. Verdict and judgment for plaintiff. Defendant moved for a new trial, which was denied, and from the judgment, and the order denying the motion, defendant appeals.

<p>Appeal from circuit court, Cattaraugus county.</p> <p>Action by George W. Cole against Sidney B. Roby to recover for legal services rendered defendant. Judgment for plaintiff. Defendant appeals.</p>

Action by Betsey Whitman, administratrix, against Matthew F. Foley and others. From an order denying a motion to set aside the report of the referee, and for a new trial, and a motion to amend a previous order of the gen. eral term by adding thereto the statement that the order was made on the facts,-plaintiff appeals.

Trover by George Foggan against the Lake Shore & Michigan Southern Railway Company. From a judgment for plaintiff, entered on a verdict of the jury, and also from an order denying a motion for a new trial, defendant appeals.

<p>■Construction of Contract.</p> <p>In February, 1889, defendant agreed in writing to furnish plaintiffs ice in such quantities and at such times as they might desire, the entire quantity not to exceed 500 tons; all ice ordered during such time as defendant should be harvesting ice from the waters of a certain lake to be furnished for 50 cents per ton, and ice furnished from defendant’s store-houses for $1 a ton. The contract did not name the time during which it should he operative, but there was a clause in it which provided, if merchantable ice could be harvested from the waters of the lake “ during the winter of 1889-90, ” defendant should sell it direct from the lake for'50 cents per ton. Held, that the time during which plaintiffs could demand ice was not limited to the year 1889, but extended into the year 1890, unless 500 tons should be delivered before then.</p>

Action by Harry Evarts, by guardian, against the United States Mutual Accident Association of the city of New York. From a judgment entered on the verdict of a jury, and also from an order denying defendant’s motion for a new trial on a case and exceptions, the notice of appeal bringing up for review that part of the order which permitted an amendment of the plaintiff’s complaint, defendant appeals.

Action for partition by Hannah L. Hazard and another against Cordelia Birdsall and others. Plaintiffs claim the land as heirs at law of Benjamin Birdsall, deceased, while defendants claim as devisees under bis will. Plaintiffs alleged that the will was void, and they appeal from an order requiring them to furnish defendants a bill of particulars as to the alleged defective execution of the will, and as to the specific acts or representations relied on to show undue influence.

Action by the Safety Steam-Generator Company against the Dickson Manufacturing Company, on a contract by which plaintiff licensed defendant to manufacture and sell steam-boilers embodying inventions for which plaintiff owned patents; and by which defendant agreed to pay plaintiff specified royalties, and to use all diligence and energy to make the sales of these boilers as extensive as possible.

Action by Bebecca M. F. Quackenbush, plaintiff, against Marie O’Hare and others, defendants, to foreclose a mortgage. The mortgage was foreclosed, and a proceeding in the action was taken by S. T. Cannon, the holder of a junior mortgage, (by assignment for benefit of Abraham Steers,) on the premises sold, to obtain a distribution of a surplus remaining after satisfactian of the prior mortgage.

Proceeding for the probate of the will of Charlotte M. Hutchings.

Action by John W. Gilbert against Henry S. Deshon and others for partition, and Margaret G. Westerfield intervened on the ground that her husband acted beyond his authority in making conveyances to defendant Deshon. In the contest between them, defendant Westerfield had judgment.

Action by Margaret Devlin against Robert Boyd and Thomas O. T. Crain to set aside as fraudulent a judgment recovered against her by Boyd, to restrain defendants from further proceedings on such judgment, and to restrain Crain, into whose hands, as chamberlain of the city of New York, the money paid by plaintiff on such judgment had come, from paying it over to Boyd, as he threatened to do. From an order continuing a preliminary injunction defendant Boyd appeals.

<p>Action by William P. Walton, Walter L. Miller, George W. Collins, Percy May, Warren F. Tupper, Biehard Denahan, Harold Christensen, Louis Gumbart, Wolfgang Goetz, George W. Mooney, Bobert A. Elliott, Chris. L. Levien, Theodore Schmidt, and J. W. Hale against Albert P. Stewart, trustee. The complaint alleged that in the year 1879 one Frederick D. Unbekant, then colonel of the eleventh regiment National Guard of the state of New York, with the officers of said regiment, did accumulate a fund for the relief of the sick and needy members of said regiment, whereof the income has since said date been duly expended for that purpose; that in 1885 said Unbekant died, and was succeeded by the defendant, Albert P. Stewart, as colonel of the eleventh regiment; that these plaintiffs subsequently succeeded the aforesaid officers in said regiment, and after the death of said Unbekant they elected said Stewart trustee of said fund, and he subsequently acquired possession thereof; that in January, 1889, the said eleventh regiment was disbanded, and all the members thereof, excepting these plaintiffs, were duly discharged from the state militia; that these plaintiffs, together with the defendant herein, are still members of the National Guard of the state of New York, and the only remaining members of such regiment, and the legal successors to said fund, and entitled to equal shares of such fund; that since the disbandment of said regiment the purposes of said fund have ceased to exist, and there is no longer any object for which this fund can be maintained; that said Stewart filed no bonds to secure said fund against his mismanagement; that he has no property to indemnify these plaintiffs in case of any loss to said fund,by reason of his negligence or misconduct, and that he is insolvent. It prayed that said fund be equally divided among plaintiffs and defendant, and that defendant be made to account for all the assets of said fund, and turn over the same to a receiver to be appointed by the court pending the determination of this action, and be then paid by said receiver as may be provided by the order or decree of the court granted upon notice to all parties. Defendant demurred to this complaint, which demurrer was overruled, and be appeals.</p>

Action by the Seneca Nation of Indians against Andrew John, Jr., to restrain him from assuming to act as president of the nation. Injunction was granted, and defendant moves to vacate it.

Action by Julius Gottberg, as executor of Mendlich Gottberg, against the United States National Bank and John J. Louth, who was plaintiff’s co-executor, for the conversion of certain bonds belonging to testator’s estate. Louth had applied to defendant bank for a loan on his individual note, offering as collateral security certain registered bonds of the St. Paul & Sioux City Bailroad, which bonds were in fact the property of testator’s estate and the subject of this action.

Action by George H. W. Curtis against the Wheeler & Wilson Manufacturing Company, upon an agreement, alleged to have been made on behalf of the defendant company by its president, Hathaniel Wheeler, to pay plaintiff the sum of $5,000 in consideration of the assignment by him to the company of a certain invention, and of the letters patent therefor, if such letters should be issued, and if the invention should turn out a commercial success.

Action for partition brought by Mary C. Cambreleng and another against Euphemia C. Purton and others. There was a sale of the premises, at which Morris Littman became the purchaser.

<p>Appeal from special term, New York county.</p> <p>Action by William H. Yeandle and others against Celeste Yeandle. There was judgment for defendant, and plaintiffs appeal.</p>

Action by Union Distilling Company against Henry Ruser. From an order denying his motions to vacate an attachment therein for failure of service of summons according to Code Civil Proc.

Action by the Union Distilling Company against Henry Ruser. From an order denying his motion to vacate an attachment defendant appeals. For former report, see 14 N. Y. Supp. 908.

Petition to the surrogate’s court by John A. Holmes for leave to issue execution against real estate of James Boyle, deceased, on a judgment recovered against him in his life-time. The application was granted, and Andrew Little and John Neely appeal. For former report, see 13 N. Y. Supp. 100.

Action by the Lancashire Insurance Company of Manchester, England, and Cornelius H. Bliss, Horace J. Fairchild, and Donald Mackay, trustees, against Bobert A. Maxwell, as superintendent of the insurance department of the state of New York, and others, policy-holders in plaintiff company.

Exceptions from circuit court, Monroe county. Action by the Hamilton Coal Company against Charles Bernhard and another. Upon a verdict for plaintiff, defendants move for a new trial, and the exceptions were ordered-to be heard at general term in the first instance.

At chambers. Action by Herman Myers and others against the Merchants’ National Bank and Abraham Backer, and Benjamin 3?. Einstein, as assignee of defendant Backer, to enjoin the sale of 163 shares of stock'of the National Bank of Savannah, and to marshal of assets, and for other relief.

Action for an injunction by the Banker & Campbell Company, Limited,, against Frederick J. Stimson. The court granted a preliminary injunction, and, after hearing, continued the same. Defendant appeals.

Action by C. Prank Pitcher against the Lake Shore & Michigan Southern Railway Company for personal injuries while in charge of a car-load of horses being conveyed from Michigan to Boston. Verdict and judgment for plaintiff. Defendant moved for a new trial, which was denied; and from the judgment, and the order denying the motion, defendant appeals. Affirmed. For former report, see 8 ÍT. V. Supp. 390.

Action by the C. B. Keogh Manufacturing Company to foreclose a mortgage. Defendants, Charles Molten and Frederick A. Wall, claiming mechanics’ liens on the property in controversy, appeal from compulsory order of reference.

<p>Negligence of Fellow-Servants—Liability of Master.</p> <p>Plaintiff, while painting defendant’s vessel, as servant of contractors, under a contract providing that defendant should furnish ropes for the staging, was injured by the fall of staging caused by the breaking of a rope. It appeared that the staging was erected by other servants of the contractors; that while they were so engaged a few ropes were brought to them which were unfit for use, when a servant of defendant told them to use what ropes they could find; and that they then used the rope, which afterwards broke, which was part of the ship’s rigging, and was obviously defective,—its condition not being noticed, though the man who used it testified that he was familiar with ropes. It was not shown that any agent of defendant pointed out this rope as fit to be used. Held, that defendant was not liable, even if the action of its servant amounted to a refusal to furnish proper ropes. Nugent v. StearrirSMp Co., (Sup.) 3 N. Y. Supp. 861, approved.</p>

Action by Emil Bachmann against Philip Wagner to recover money paid as part of the purchase price of land under a contract of sale with defendant, which land plaintiff afterwards refused to take on account of defects in defendant’s title, and to have a lien declared on the premises in his favor for the amount so paid. Plaintiff filed a Us pendens, which defendant moved to have dismissed on the ground that this was not a proper action for it.

Action by the Manufacturers’ & Traders’ Bank against the O. W. F. Dare Company, C. W. F. Dare, and Abram Folk. From an order overruling exceptions, and confirming the report of the referee, made on a reference to assess damages sustained by defendants by the issuing of an injunction, plaintiff appeals.

Action by Lucy M. Rice against John S. Rice and others to recover dower. Defendant Rice moved to have the action stayed until the determination of a partition suit, subsequently brought, affecting the same land, in which he was plaintiff and this plaintiff one of the defendants, and in which he prayed for a sale of the whole property, including the widow’s dower. The application was denied, and defendant appeals.

This was an action by the Essex County national Bank of Hewark against Thomas V. Johnson on certain promissory notes. An attachment was issued against defendant on the affidavit of the president of plaintiff that the notes were past due and unpaid, and that the amount sued for was due over and above all counter-claims known to plaintiff or deponent.

This was a suit for partition, brought by George S. Ronalds against Catherine A. Camman and others. Defendants moved to dismiss the complaint on the ground that the action was premature and irregular, and an order was entered denying this motion, from which they appeal. Code Civil Proc. Y. Y. § 992, provides that an exception may be taken to the ruling of the court upon a question of law arising on the trial of an issue of fact.

Action by Anton Kimbel, Anton Kimbel, Jr., and Henry Kimbel against John Mason. The complaint sought to recover for goods sold and delivered and work done, for which it alleged defendant promised to pay an agreed price and it contained allegations as to an account stated between the parties, and prayed judgment for the balance.

Action by the Bowery Bank of New York against Mahlon C. Martin and others, as executors of Christopher Meyer, deceased.

Action by William C. Pate against Augustus Hoffman, in which plaintiff recovered judgment against defendant, and in proceedings supplementary to execution on the judgment was appointed receiver of defendant’s property.

<p>Attachment—Affidavit—Conclusions of Affiant.</p> <p>The affidavit on which a warrant of attachment was granted, in an action for fraud in procuring money from plaintiff on certain promissory notes transferred by defendant to plaintiff, averred that the notes were forged and fraudulent; but it did not appear that the affiant could have had personal knowledge of the fact, and there was no evidence to support the assertion. Meld, that such averment was a mere conclusion, and the affidavit was insufficient to sustain the attachment, and that the defect was not supplied by similar allegations in the complaint. Maebler v. Bernharth, 115N. Y. 459, 23 N. B. B-ep. 16?, distinguished.</p>

Action by George F. Hodgman against Stephen T. Barker, in which plaintiff obtained a warrant of attachment against defendant’s property. A motion to vacate the attachment, on the papers upon which it was granted, was made by the National Broadway Bank, a subsequent attaching creditor, and was denied. The bank appeals from the order denying its motion.

This was an action by James Porter against Thomas J. Dunn, as surviving ■executor of Patrick H. Kennedy, in which plaintiff had judgment on the report of a referee, and defendant appeals.

Action by William A. Woodhull, as receiver, against Ansel L. Washburn, in which plaintiff obtained an order for the examination of defendant before trial, under Code Civil Proc. §§ 871-873. From the denial of his motion to vacate this order defendant appeals.

Exceptions from special term, New York county. Action by Peter W. Gallaudet and Henry Fitch, Jr., against Charles Kellogg and others, composing what was known as the Union Bridge Company, on a contract by which it was alleged that defendants agreed to pay plaintiffs $100,000 for assisting the defendants to procure the contract for the building of the Poughkeepsie bridge across the Hudson liver.

Special proceeding by the attorney general of the state of New York (under Rev. St. N. Y. pt. 1, c. 18, tit. 2, art. 8,) for the dissolution of the Equitable Reserve Fund Life Association of the city of New York. From a judgment entered on the report of a referee, John R. Foley and others, claiming a right to participate in the distribution of certain funds of the association, appeal,

<p>Witness—Transactions with Decedent.</p> <p>In an action against an administrator for rent due by his intestate, where defendant has testified to an agreement between the parties that intestate was not to pay rent for a given period, it is error to exclude questions put to one chosen by the parties as receiver of the rents whether the lessor or the intestate ever informed him of such an agreement.</p>

Action by the Broad-Street National Bank of Trenton, New Jersey, against Margaret Sinclair. Defendant appeals from the denial of her motion to vacate an order for her examination before trial.

Action, by the Bradley & Currier Company, Limited, against Siegmund T. Meyer and others on certain notes. There was judgment for plaintiffs, and defendants appeal.

<p>Appeal from trial term.</p> <p>; Action by Joseph Glaser against Owen Cumisky. There was judgment on a verdict for plaintiff, and defendant appeals.</p>

Action by Joseph A. Bornstein against Robert L. Harding. There was an order for defendant’s arrest, and he appeals from the denial of his motion to vacate it.

Action by Ann Barrett against Martha Kling, as administratrix, etc., for an accounting of the affairs of a copartnership between plaintiff and defendant’s intestate. From a judgment for plaintiff rendered on trial before a referee, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Ferdinand Fish against /William Hodsdon. There was judgment for defendant, and plaintiff appeals.</p>

Action by Mary H. Barrett against William H. Palmer and Adolph Droste for the wrongful eviction of plaintiff from leased premises. There was judgment for plaintiff, and defendants appeal.

Action by Orville T. Jarvis against the Brooklyn Elevated Railroad Company to recover for personal injuries alleged to have been caused by alleged negligence of defendant. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Mary P. Wessman and another against the city of Brooklyn for damages due to a defective drain. There was judgment for plaintiffs, and defendant appeals.

<p>1. Policemen—Dismissal—Review—Weight oe Evidence.</p> <p>The action of the police commissioner in dismissing a patrolman from the force for violation of the rules will not be interfered with on certiorari, where the evidence is conflicting.</p> <p>2. Same—Competency—Documents.</p> <p>Nor will it be disturbed on the ground that the commissioner received in .evidence an envelope containing relator’s previous record on the force, where no objection was taken at the time, and it does not appear that relator was not allowed to read its contents.</p>

Action by Lucy A. Kutz against Daniel W. Richards and Morton B. Smith for an accounting, and for money due thereon. Judgment for plaintiff on demurrer to the complaint, and defendants appeal.

Action by Alfred B. Page against James W. Voorhies. Plaintiff appeals from a judgment for defendant entered on the verdict of a jury, and from an. order denying a motion by him for a new trial. Beversed. Code Civil Proc. IT.

Lowell Lincoln, assignee of John F. Plummer & Co., sued Frederick C. Linde, Frederick W. Conklin, and Colson C. Hamilton, for converting plaintiff’s goods. Defendants answered, denying the conversion, and alleging that the goods had been pledged to them as warehousemen for advances for storage, insurance, etc., and that the alleged conversion consisted in their suing plaintiff’s assignor for such advances, and in attaching and selling the goods in such action.

Action by the first national Bank of Chicago against Robert J. Dean and others to recover for money loaned on warehouse receipts issued by the defendants. The receipts were originally issued to Marshall, Spellman & Co., and were by them transfered to the Meade Van Bokkelen Company, of Chicago, 111., who transferred them to the plaintiff as security for present and future advances.

Action by Morgan L. Livingston and Silvia Livingston against the Manhattan Railway Company and the Metropolitan Elevated Railway Company. Defendants move to set aside the report of the referee, or to send it back to him, with directions that he include in it all the findings and conclusions of law made by him.

On motion to confirm the findings of a jury in an inquisition as to the lunacy of George Benson, and to. appoint a committee of his person and property.

Motion by John Schreyer for leave to file objections to the preliminary report of commissioners of estimate and assessment, awarding damages for land taken for a street. Denied. Schreyer appealed.

<p>Appeal from surrogate’s court, New York county.</p> <p>Proceedings for the probate of the last will and testament of Virginia S. Kaufman, deceased. From a decree of the surrogate refusing probate of the will the executor, Adolph L. Sanger, appeals.</p>

Action by the Commercial Union Assurance Company, Limited, against Morris H. Smith, the Commercial Union Life Insurance Company, and others, for an injunction to restrain defendants from using the name “Commercial Union” in their life insurance company to be organized. From a judgment dismissing the complaint on the merits, with costs, plaintiff appeals. For former report, see 2 N. Y. Supp. 296.

Action by Bertha B. Martin, administratrix, etc., against Spencer C. Platt and another, impleaded, etc., upon an alleged due-bill. Verdict for plaintiff, upon which judgment was directed for plaintiff upon exceptions of defendant, ordered to be heard by the general term in the first instance. From the judgment, and also from an order denying a motion for a new trial on the ground that the verdict was against the evidence, defendants appeal. Affiimed.

Application by Charles Putzel for a mandamus to compel John Simonson and others, inspectors of an election by stockholders, to count certain votes, and amend their certificate of election.

Action by Prosper S. Hewes against Annie K. Hewes, for a separation on the ground of abandonment. It appeared at the trial that the parties were married in Pennsylvania, where the desertion took place; and that, after such desertion, plaintiff took up his residence in New York, where he had continued to reside for over one year, when the action was commenced. It did not appear that defendant had ever resided in the state of New York.

Proceedings instituted by the mayor, aldermen, and commonalty of the city of New York to acquire title to certain real estate for a public street. The mayor, etc., appealed from an order granting a motion made by Martin B. Brown for leave to file objections to the report of the commissioners of estimate and assessment therein.

Action by Nathaniel Hooper and others against Charles McCulloch Beecher, Frank R. Johnson, and Walter S. Baillie, partners under the name of C. McCulloch Beecher & Co., and Henry P. Bartlett, to set aside a general assignment made by such firm to Bartlett. Defendant Bartlett moves for an order directing the payment of funds to preferred creditors. Denied at special term. Defendants appeal. Affirmed. The action to set aside the assignment was twice tried.

<p>Pleading—Action fob Injunction—Motion to Make More Definite.</p> <p>In an action to restrain defendant from prosecuting summary proceedings to remove plaintiffs from certain premises, wherein the complaint alleges that an action has been commenced and a complaint served in such summary proceeding without tendering any other issue, the complaint cannot be made more definite and certain, and a motion for that purpose must be denied.</p>

Action by the National State Bank of Elizabeth, N. J., against Elijah Brainard and another, to recover the amount of certain drafts drawn by defendants, and discounted by plaintiff before maturity. Prom a judgment for .plaintiff, defendants appeal.

Certiorari at the relation of Jeremiah Sullivan against J. Hampden Bobb and others, commissioners composing the board of parks of the city of New York, to review their action in dismissing relator from the police force of the park department for willfully and indecently exposing his person in the presence of female visitors to the park.

<p>Appeal from special term, New York county.</p> <p>Action by the New Haven Clock Company against Bichard Hubbard. From an order denying a motion to change place of trial defendant appeals.</p>

Action by Gyrus Scofield against Samuel Kreiser. Defendant moves fo: an order to vacate and set aside a body execution, and to discharge defendant from custody on an arrest thereunder. The special term granted the order. From so much of the order as imposes a condition upon the granting of' the same defendant appeals. Modified. For decisions in the action for conversion, see 3 N. Y. Supp. 803, 14 N. Y. Supp. 274.

Action by George H. Adams and another, executors of Alice 0. Barlow, deceased, plaintiffs, against Stephen H. Olin and another, executors of Samuel L. M. Barlow, deceased. Prom a judgment for defendants entered on the report of a referee, plaintiffs appeal.

Action by Cornelius V. Cross and Norman F. Cross, individually, and as surviving executors of the last will and testament of Phoebe Jane Cross, deceased, and Ethelinda C. Horton, individually, against the United States Trust Company of New York, as trustee under said last will and testament, and Sophia V. Morse, Grace G. Minton, John H. Morse, and Ethelinda Morse, to obtain a judicial construction of provisions in the will creating certain trusts.

This was an appeal by George W. Patterson and Eliza Brogan from a decree refusing probate of the last will and testament of John Patterson, deceased, on the ground of undue influence exercised by said George W. Patterson. The decree was reversed. For former opinion, see IS FT. Y. Supp. 463.

At chambers. Application by Hugh H. Woodworth and others to compel the cleric of Seneca county to print their names, as the regular nominees of the Republican party, on the ballots to be used at an approaching election.

Action by Oliver H. Perry, plaintiff, against the Erie Transfer Company, defendant, to recover for the hire of certain teams to defendant, which was a New Jersey corporation. Plaintiff was also a non-resident. It appeared from the evidence that the contract was made in New Jersey, but was to be performed in part in New York. From a judgment for plaintiff entered on the verdict of a jury, defendant appeals. Code Civil Proe.

Action jy Selig Steinhardt, plaintiff, against Oliver P. Buel, defendant, to recover the possession of a flat. The principal controversy in the case was whether an agreement had been made between the parties for the renewal of the lease after the expiration thereof. From a judgment for plaintiff, defendant appeals.

Action by Pauline Kahn, plaintiff, against Joseph S. Lesser and others, defendants, on a judgment recovered against defendants in the state of Wisconsin. The defense was that the Wisconsin court had no jurisdiction to render such judgment against defendants, who were non-residents, because of an unauthorized appearance for defendants in that court by persons who were not their attorneys. Prom a judgment for plaintiff defendant Lesser appeals.

Action by Sebastian G. Brinkman, plaintiff, against Henry S. Eisler, defendant, to recover for work, labor, and materials furnished for the erection of an awning in front of defendant’s premises, prohibited by a city ordinance. From a judgment for defendant, plaintiff appeals.

Action in equity by James MeGay against the Manhattan Elevated Railway Company and the Metropolitan Elevated Railway Company for an injunction against the maintenance and operation of defendants’ railway, and for past damages for such operation. There was judgment for plaintiff, awarding an injunction, and damages also, from which defendants appeal.

This was an action-by Karl M. Wallach against the Manhattan Elevated Railway Company and the Metropolitan Elevated Railway Company to enjoin the maintenance and operation of defendant’s elevated railway along the street in front of plaintiff’s premises, and for past damages. There was judgment for plaintiff awarding damages, and an injunction, and defendants appeal. Judgment reversed. Eor former report, see 14 BT. Y. Supp. 957,. mem.

Action in equity by Mary B. Delafield against the Manhattan Elevated Railway Company and the Metropolitan Elevated Railway Company for an injunction against the maintenance and operation of defendants’ railway along the street in front of plaintiff’s property, and for past damages. There was judgment for plaintiff, awarding an injunction and damages, from which •defendants appeal.

Action by Fraser 0. Fuller, plaintiff, against Edward Kemp, Jr., defendant, to recover a balance due on account. From a judgment ,for plaintiff, entered on a verdict of a jury, defendant appeals.

Action by Abraham G. Jennings, plaintiff, against Dennis McCarthy, defendant, to recover the possession of demised premises on the ground of the alleged expiration of the term. From a judgment for plaintiff, defendant appeals. 3 Bev.

Action by Wilson J. T. Duff, plaintiff, against Harry Hart, defendant, to recover rent of demised premises abandoned by defendant. From a judgment for defendant plaintiff appeals.

Action by Mary Campbell, administratrix of John Campbell, a deceased partner, plaintiff, against Bernard Campbell, defendant, surviving member of the firm, for an accounting, and to recover the value of the deceased partner’s interest in the copartnership assets. From a judgment for defendant, dismissing thexomplaint, plaintiff appeals.

Action by Abraham Wolf, plaintiff, against Charles A. Farley and others, defendants, to recover a wagon, claimed as exempt from levy. From a judgment for plaintiff, defendants appeal.

Action by James B. Hackett and Daniel Paxton, executors of John Patterson, deceased, plaintiffs, against George W. Patterson and the Safe-Deposit Company of New York, to have free and uninterrupted access to, and egress from, a safe in the vaults of the Safe-Deposit Company of New York. During his life-time, John Patterson, plaintiffs’ testator, and the defendant George W. Patterson, were joint lessees of a safe in the vault of the Safe-Deposit Company of New York.

The action was brought by Charles Welsh, as surviving executor of George W. Welsh, deceased, against the New York Elevated Railroad Company and the Manhattan Elevated Bail way Company for injuries to real estate. Defendants appealed from a judgment for plaintiff entered bn a trial by the court without a jury. The judgment was reversed. Plaintiff moved for a reargument. For former opinion, see 12 N. Y. Supp. 545.

Action by Isaac Berg, plaintiff, against Joseph W. Carroll, defendant, to recover damages for breach of contract of employment. From a judgment for plaintiff defendant appeals. For former report, see 9 ÍT. Y. Supp. 509.

At chambers. Bill of interpleader by the Commercial Travelers’ Association of the State of New York against Frances Newkirk and others. The plaintiff is a co-operative life insurance society, incorporated in December, 1872, pursuant to “An act for the incorporation of benevolent, charitable, scientific, and missionary societies,” passed April 12, 1848.

On accounting by William Mitchell, as executor, etc., of Clarissa E. Curtis, deceased. Referred to William P. S. Melvin, on objections by James L. Curtis, Clara I. Curtis, and Julia F. Munson. The objectors appealed from the order of the surrogate entered on confirmation of the referee’s report. Modified.

At chambers. Action by Sarah E. Mellen against Abner Mellen, Maria L. Kendall, William C. Banning, individually and as executor of will oí Abner Mellen, deceased, Helen J. Banning, and Abner M. Wilcox and Winnifred Wilcox, his wife, for partition.

<p>Fobmeb Jeopardy.</p> <p>An acquittal on a charge of assault and battery is a bar to an indictment for rape, where both charges are based on the same transaction.</p>

Action by Marks Lazarus against Adolph Danziger to restrain defendant from procuring-the removal of a soda-water stand in front of premises owned by plaintiff, and occupied in part by defendant as plaintiff’s tenant. An injunction pendenteMte was granted, and plaintiff now moves to continue the same. The affidavits in support of the motion are as follows: “Marks Lazarus, being duly sworn, says: I am the plaintiff in this action, and reside at Ho. 26 Essex street.

<p>1. Citt Court of New York—Jurisdiction—Action to Create Trust. _ ■</p> <p>_ An action to recover money had and received for the benefit of plaintiff, arising from the proceeds of sale of real estate held by defendant for the benefit of plaintiff and another, is not an action to create a trust, the effect of which would be to deprive the city court of New York of jurisdiction of the case.</p> <p>2. Appeal—Waiver of Objections—Mode of Trial.</p> <p>Where both parties request the court to make a direction to the jury, and defendant fails to request the submission of the questions of fact to the jury, he thereby waives all objections to the mode of trial, and must stand on the exceptions taken.</p>

<p>Landlord and Tenant—What Constitutes a Lease.</p> <p>Defendant signed an instrument purporting to be a lease, which contained a description of the premises occupied by him as tenant, and fixed the rent, time of payment, and length of term. Meld, that such instrument must be deemed a lease.</p>

<p>1. Negotiable Instruments—Actions—Extension of Time—Evidence.</p> <p>In an action-on certain notes defendants pleaded an extension of the time of payment, not yet expired, based on a valuable consideration, and introduced a writing, signed by plaintiff, reciting that in consideration of $15 then paid, and $15 to be paid monthly, he agreed to extend the payment of the notes for 10 months. In rebuttal plaintiff introduced the first note, on which was credited $15 as a payment - on account on the day the extension agreement was delivered. The complaint, which plaintiff had sworn to, alleged that this note was wholly unpaid. Held, that the evidence warranted the finding that the $15 paid was a new consideration for an extension, and not a payment on account.</p> <p>2. Same—Evidence—Indorsement of Credits.</p> <p>While plaintiff’s indorsement of this credit on the note is not properly admissible-against defendants, where it is in evidence without objection by them it will be-considered for what it is worth.</p>

Action by Frank W Bobbins and another against Charles Downey. Judgment was entered on the verdict of a jury for plaintiffs, and defendant appeals.

<p>Contracts—Interpretation.</p> <p>Parties to written contracts are bound by the express provisions thereof. A written contract for the regulating and grading of real property, which contains a provision that the owner “reserves the right to decide, after the rock has been uncovered, whether he will have the same removed or not, ” entitles him to decide that the same shall not be removed, and gives him the right to thereafter remove it himself, or cause others to remove the same.</p> <p> (Syllabus by the Court.) </p>

<p>1. Appeal—Weight op Evidence—Actual Observation.</p> <p>Plaintiff sqed for materials furnished and labor performed at defendant’s request. Plaintiff testified that he saw the work performed and materials furnished, and that they were worth the sum sued for. Defendant, who had not seen the work and materials, testified that they were not worth the sum claimed. Held, that a verdict for plaintiff would not be disturbed.</p> <p>2. Evidence—Books op Original Entry—Res Gesta;.</p> <p>Plaintiff’s book-keeper testified that plaintiff’s books were correctly kept, and that entries therein against defendant were made in the regular course of business, and immediately after the transactions occurred, and plaintiff testified that the work and materials itemized in such entries were performed and furnished as charged. Held, that plaintiff’s books containing such entries were properly admitted in evidence.</p> <p>S. Same—Competency op Expert—Steam:-Fittings.</p> <p>A person who has been for 6% years in the employ of a firm whose business is steam engineering is competent to testify as to the value of work performed and materials furnished in matins' steam connections of an engine in an electric plant.</p>

•Appeal from trial term. Action by the New York Real-Estate & Building Improvement Company against Thornton H. Motley for rent. The court directed a verdict for plaintiff, and from the judgment thereon defendant appeals.

Action by Garret Y. Van Doren against Taylor Jelliffe to recover broker’s commissions. From a judgment for plaintiff entered on the verdict of a jury, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Samuel Schurr against the New York & Brooklyn Suburban Investment Company of New York. There was judgment for plaintiff, and the defendant appeals.</p>

<p>Trial—Directing Verdict—Contradictory Evidence.</p> <p>The court cannot direct a verdict when the evidence is contradictory.</p>

Application of the New York & Suburban Investment Company for m-mdamus to the secretary of state to receive and file its certificate of reorganization without the payment of a franchise tax.

Action by the Chatham Hational Bank aga'inst James H. Pratt on a written guaranty. Defendant appeals from a judgment entered on a verdict for plaintiff and from an order denying his motion for a new trial. Affirmed.

Action in the county court by Michael Filón against John M. Durkin, impleaded with Melville G. Biker, to foreclose a mortgage. Judgment for plaintiff by default against Durkin. Biker took an assignment of the bond and mortgage, and sought to enforce the judgment. Durkin claimed equities existing between him and Biker, and made application to open the default and interpose such equities. An order was made the default, and from such order Biker appealed.

Replevin by John Savelle against George W. Wauful and others. Plaintiff moves to set aside a verdict directed for defendants, and for a new trial on the minutes. Motion denied. For former report, see 13 FT. Y. Supp. 953, mem.

Action by Richard M. Oderkirk against James C. Fargo, as president of the American Express Company. Judgment for plaintiff. Defendant appeals. Affirmed. For former report, see 11 H. Y. Supp. 871. The action was commenced in a justice’s court, and the plaintiff had judgment. From that judgment the defendant appealed to the Jefferson county court. Upon a retrial in the county court the plaintiff was nonsuited.

Action by the city of Binghamton against the Binghamton & Port Dickinson Railway Company to recover the expense of certain paving. Judgment was entered in Broome county, on the report of a referee, in favor of plaintiff for $5,181.12 damages, besides interest and costs. Defendant appeals.

Action by Samuel W. Cass against Marcus M. Cass, individually, and Marcus M. Cass, impleaded, etc. From an order referring the cause defendants appeal'. Affirmed.

Action by Mary J. Allport, executrix of Mariah E. House, deceased, against Lewis D. Jerrett and Garrett S. Cole, executors of William C. House, deceased, and another. From a judgment for defendants, entered in Oswego county, -dismissing the complaint, plaintiff appeals. Plaintiff is executrix of the last will and testament of her mother, Mariah E. House.

<p>Appeal from special term, Schuyler county.</p> <p>Action by Marcus M. Cass against James Shewman to recover on a guaranty to fulfill the conditions of a lease not complied with by the lessee. Plaintiff demurred to defendant’s answer. The demurrer being overruled, plaintiff appeals. Reversed.</p> <p>On the 3d April, 1888, the plaintiff and one Jennie D. Shewman entered into a written agreement, by which the plaintiff leased to said Shewman his farm of 110 acres for .the term of three years from April 1, 1888, at the annual rent of $125, payable on the 1st of March of each year. It was, among other things, provided that Shewman, the party of the second part, should have “fire-wood and privilege to cut and use posts for fencing on said farm, but shall not cut standing timber until down timber is used up;” and the party of the second part agreed to carry on the farm in a good and farmer-like manner. Upon the same occasion, and in connection with said lease, the defendant executed and delivered to plaintiff an instrument, of which the following is a copy: “For a valuable consideration to me paid by M. M. Cass, the receipt whereof is hereby acknowledged, I hereby agree to become and do become security for the fulfillment of the above lease by the party of the "second part, hereby agréeing to fulfill all the terras and conditions of said lease not fulfilled by said party of second part. Witness my hand, this 3d day of April, 1888. James Shewman. ” In the complaint the lease and the guaranty of defendant are set out, and it is alleged that the lessee went into possession, and that the year’s rent of $125 that became due March 1, 1891, has not been paid. It is also alleged that the lessee has not carried on the farm in good and farmer-like manner, has committed waste, has torn down and injured fences, has injured the buildings, and has cut down and appropriated many standing trees, contrary to the provisions of the agreement, thereby damaging the plaintiff to the amount of $300, which, by the terms of the agreement, the lessee is liable to pay; that in these respects the lessee has made default, and has failed to fulfill the agreement. Judgment is demanded against the defendant for $425. In the fifth count or defense in the answer it is alleged by the defendant that no demand was made by plaintiff before the commencement of this action of said lessee for the payment of said rent, or for the performance on her part of the conditions and provisions in said lease contained, alleged in the complaint to have been broken and violated by her, or for compensation in damages for such alleged breach, or for the injury, as alleged, to the real property; that plaintiff had taken no steps and resorted to no legal remedy against the lessee to recover the said rent, and for damages for a breach of performance of the conditions of the agreement, and had not exhausted his remedies, legal or otherwise, against the lessee. In the seventh count or defense the defendant alleged that the lease or agreement set forth in the complaint was void, for the reason that it was not sealed, acknowledged, or witnessed. The plaintiff demurred to the fifth and seventh defenses in the answer on the ground that each of said answers is insufficient in law upon the face thereof, and neither contains sufficient facts nor allegations to constitute a defense. The court in its decision sustained the demurrer to the seventh defense, giving the defendant leave to amend on payment of costs of the demurrer, but overruled the demurrer to the fifth defense, and directed an interlocutory judgment to that effect. The court at the same term granted an order, which was entered July 2, 1891, directing that the demurrer to the fifth count be overruled, and that “the defendant may enter judgment herein, dismissing said complaint with costs, which judgment shall stand upon the record until the trial of the issue joined in this action, and, in case said action shall be determined in favor of the defendant, said judgment, together with judgment for further costs, shall stand as the final judgment in this action, otherwise to be of no force and effect.” This order, and the judgment entered in pursuance thereof on the 6th July, 1891, are appealed from.</p>

<p>L Breach of Covenant—Warranty.</p> <p>Mortgaged premises, owned by J. and D., were divided, D. covenanting title to J.’s portion clear of the mortgage, which covenant ran through a succession of 'deeds to defendant, who conveyed to plaintiff’s grantor with a like covenant. Before sale on foreclosure of the mortgage defendant was served with notice of sale, but did not appear, and plaintiff was evicted. Held, that defendant was liable to plaintiff on his warranty to plaintiff’s grantor, as, if the officer making the sale had been notified by defendant that the portion of the premises originally owned by D. was primarily liable, the sale would have been made in that order.</p> <p>2. Same—Measure of Damages.</p> <p>The measure of plaintiff’s damage under the warranty was the value of the premises at the time of defendant’s conveyance to plaintiff’s grantor.</p>

Action to determine the right to the office of city engineer of Binghamton, N. Y. From a judgment dismissing the complaint, and an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Action by Bennett F. Brown, by his committee, against Andrew B. Miles, Jr., for the possession of land.

<p>Application of Dennis O’Mara for mandamus to the board of supervisors of Cayuga county to reaudit an account.</p>

<p>Appeal from special term.</p> <p>Action by Benjamin J. Dennis and another against William Walsh and Margaret J. Walsh, his wife. There was judgment for plaintiffs, after trial by the court, and defendants appeal.</p>

<p>Appeal from special term.</p> <p>Action by Charles E. Pell and David Dannat against Christian Baur, impleaded with Clans Schloen, Matthew Thornton, John E. Tweed, and Alexander Hilzinger. After trial by the court there was judgment for plaintiffs and for defendant Tweed, from which defendant Baur appeals.</p>

<p>1. Streets—Dedication—Evidence—Maps.</p> <p>The city of Albany conveyed a tract of land within its corporate limits, reserving the right to open through it such streets as it saw fit. Shortly afterwards the city had a map made by its engineer, on which certain streets were shown laid out through this tract. Its grantee acquiesced in the location of these streets for nearly 40 years, and then conveyed lots bounded on one of them. Held, that this shows a valid dedication by the city or by the joint act of the city and its grantee.</p> <p>2. Same—Acceptance—Maps.</p> <p>The making and filing of the map by the city is an express acceptance of the dedication if it be deemed to have been made by the grantee of the land in question.</p> <p>8. Same—Revocation—Obstruction op Street.</p> <p>The obstruction of one of such streets by the owner of a lot abutting thereon cannot be considered a revocation of the dedication where the deed to such owner , bounded the lot on the street in question, as did also the deeds under which his grantors claimed.</p> <p>4. Streets—Abutting Owners—Rights—Evidence.</p> <p>The rights of such owner in the bed of the street are in no way enlarged by the facts that other lots were conveyed which crossed and included the street, and that the city assessed these lots without excepting the street, where he fails to connect himself with the deeds, or to show that he relied on these assessments when he took his title.'</p>

Action by Emily A. Moulton against Kehemiah 1ST. Cornish to compel the latter, the holder of a junior mortgage, to redeem the land from plaintiff’s prior mortgage, under which it was sold and bid in by plaintiff in foreclosure proceedings to which defendant was not a party. Judgment for plaintiff. Defendant appeals. Modified.

Action by Jane Nelson against Isabella McDonald and others to reform a will. Judgment for defendants. Plaintiff appeals. Affirmed. In November, 1885, John and Jane Nelson, who were husband and wife, and who resided in the city of Syracuse, N. Y., employed one Oowie to draw their wills, each giving all his or her property to the other. The wills were drawn at the house of the parties, and read to them.

Action by Eliza A. Martin against the Equitable Accident Association of Binghamton to recover on a policy insuring her husband against death by accident. Verdict and judgment for plaintiff. Defendant moved for a new trial, which was denied, and from the judgment and order denying the motion, it appeals.

Action by James Van Camp, for himself and all other legatees under the will of Ann Jennette Van Camp, deceased, against Albert Fowler, as executor, etc., of Oliver H. Perry, deceased, and others, for the construction of the will of Oliver H. Perry. Judgment for plaintiffs. Defendants appeal. Affirmed. For prior opinion, see 13 N. Y. Supp. 1.

<p>1. Conflict of Laws—Bequest to Foreign Cemetery Association.</p> <p>A bequest to a cemetery association incorporated under the laws of another state, and capable, under the laws of such state, of taking and applying the same as-directed by a will executed in New York, will be upheld by the courts of New York, even though a bequest to a similar corporation in New York would be invalid.</p> <p>2. Charities—Validity of Bequest—Date of Will.</p> <p>Laws N. Y. 1848, c. 319, § 6, entitled “An act for the incorporation of benevolent,, charitable, scientific, and missionary societies, ” and providing that no bequest to-such corporations shall be valid unless made at least two months before the testar tor’s death, does not apply to foreign incorporated cemetery associations.</p> <p>8. Dower—Devise in Lieu—Election Presumed.</p> <p>Where the provision in a will in favor of the widow, made in lieu of dower, is more favorable than her dower right, and she dies, without making an election, before expiration of the time within which the election may be made, it will be presumed that she elected to take under the will.</p>

This was an action by Lena Finelite against Alexander Finelite and others for the reformation of a deed. Judgment was rendered in favor of defendants, dismissing plaintiff’s complaint. Fotice of appeal was given, but the time to serve a case yvas allowed to expire. On plaintiff’s motion, further time to serve the case was allowed by Justice Lawrence on condition that she should give bond to pay defendants all costs and damages resulting from the appeal.

This suit was brought by Pauline Jacobs against Lena Davis and Abraham Greenberg and his wife for the foreclosure of a mortgage. After sale of the premises and payment of the mortgage debt a surplus remained, and a reference was ordered to determine the rights of defendants thereto. The referee reported that defendant Davis was entitled to the whole of this surplus, and from an order confirming his report defendants Greenberg and wife appeal.

Action by Charles A. Burt against the Oneida Community, Limited, John H. Yoyes, and others. The complaint was dimissed, and plaintiff appeals. Affirmed.. For appeal from taxation of the fees of the referee, see 12 Y. Y. Supp. 806. The complaint alleges that the Oneida Community, Limited, is a domestic corporation, organized under the laws of the state of Yew York, and doing business principally in the counties of Madison, Oneida, and Yiagara.

<p>1. Insanity—Inquisition—Notice to Lunatic.</p> <p>While the failure to give notice to an alleged lunatic of the petition to the court to appoint a committee of his person and property is a grave irregularity, it is not such as to deprive the court of jurisdiction where the allegations of the petition show presumptively that the person is incompetent to manage his affairs by reason of lunacy.</p> <p>2. Same—Vacating Proceedings—Traverse or Petition.</p> <p>In such case, an order denying the lunatic’s petition, subsequently filed, to vacate the commission and all proceedings had in the matter, will not be disturbed when it allows the lunatic to traverse the original petition, and directs the issue so found to be tried before the commissioners originally appointed and a sheriff’s jury.</p>

' Appeal from special term, New York county. Action by Charles G-. Cornell, Jr., and another, plaintiffs, against the United States Illuminating Company, defendant.

Action by Hathaniel Sleeman, plaintiff, against Lewis Hotchkiss and others, defendants. From an order made at circuit denying plaintiff’s application to restore the cause to the calendar of that court, plaintiff appeals. Reversed.

Action by Mary A. Poole, plaintiff, against Burton G-. Winton and others, defendants. From a judgment overruling a demurrer to the complaint, defendants appeal.

Action by Humphrey H. Leavitt and another, plaintiffs, against John L. Dodge, defendant. From a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

Action by Thomas W. Reilly and John O’Connor against John R. Lee. From a judgment entered on a verdict of a jury, rendered by direction of the court, defendant appeals.

Action by Henry G. Keasbey and Richard Y. Mattison, plaintiffs, against the Brooklyn Chemical Works and others, defendants. From an order dissolving a preliminary injunction plaintiffs appeal.

Action by Emmeline G. Baker, by William H. Baker, her guardian ad litem, against the Eighth-Avenue Railroad Company, for personal injuries. There was judgment for plaintiff on a verdict by the jury, from which defendant appeals.

Action by Frank Phelps, plaintiff, against the mayor, aldermen, and commonalty of the city of Yew York, defendants. From a judgment for plaintiff, defendants appeal. Affirmed. For former reports, see 11 Y. Y. Supp. 657, and 13 Y. Y. Supp. 779.

<p>Exemption prom Civil Process—Party to Foreign Suit—Taking Depositions.</p> <p>In a suit pending in South Carolina, plaintiff was a resident of the state of New York, and defendant a resident of the state of South Carolina. Defendant came to New York city to take depositions to be read in the suit in South Carolina, and while there was served with a summons in an action instituted against him by the same plaintiff in New York. Held, that the exemption from service of civil process granted a non-resident, in actual attendance on a court in New York wherein his suit is pending, does not extend to a person taking testimony in New York in a. suit pending in another state.</p>

<p>Appeal from special term, New York county.</p> <p>Application for a writ of certiorari on the relation of Frank Guntner, to review the determination of Henry Murray, a police justice in the city of New York, in committing the relator for disorderly conduct.</p>

<p>1. Appeal—Objections Waived—Payment of Costs.</p> <p>Plaintiff’s application for a peremptory mandamus was denied, with $10 costs, hut without prejudice to a renewal of the application on further papers. After-wards the application was renewed and granted, the $10 costs remaining unpaid. Held, the costs never having been demanded, and no objection to the granting of the second application on account of such non-payment having been made on the hearing of the motion, such objection could not be raised on appeal.</p> <p>2. Mandamus—Procedure—Alternative Writ.</p> <p>On an application for a peremptory mandamus to restore an honorably discharged Union soldier to his position in the street-cleaning department of New York city, the question whether the applicant was a regular appointee to such position, or temporarily appointed to fill a vacancy only, was left in doubt by the affidavits filed. Held, that the court erred in granting a peremptory mandamus, and that an alternative writ should be awarded.</p>

Application by the trustees of the Simonds Soap Company for a voluntary dissolution. George H. Wyckoff, a creditor of the corporation, appeals from an order denying his motion to vacate an order enjoining creditors from prosecuting suits against the corporation.

Certiorari on the relation of Edward Luckenmeyer against Michael Coleman and others, commissioners of taxes of the city of New York, to review and cancel an assessment on part of relator’s personal property for the year 1890. From a judgment dismissing the proceedings relator appeals.

Application by Louis W. Schultze, one of the coroners of the city of New York, for a mandamus to compel Theodore W. Myers, comptroller of the city of New York, to pay his-salary as coroner. The comptroller refused to pay the salary, upon the ground that the coroner had not paid certain fees, received by him for performing duties as sheriff, into the city treasury, and produced a receipt therefor. Application denied. Petitioner appeals.

Action by John It. Drake against Herbert L. Satterlee, as receiver, etc. A demurrer by plaintiff to an amended answer was overruled. The interlocutory judgment entered thereon allowed plaintiff to withdraw the demurrer, and gave leave to defendant, upon such withdrawal, to apply for an order adding other parties as defendants. Plaintiff appeals.

Action by Annie M. Bausch against Charles D. Ingersoll for breach of promise of marriage.

Action by the Columbus Watch Company and others, attaching creditors of the firm of Stern & Stern, against Anthony J. G. Hodenpyl and others, for an injunction restraining the sheriff of New York city and county from paying certain executions issued against the firm. Plaintiffs appeal from a judgment dismissing their complaint.

New York county. Action by Thomas G. Frothingham and others against Anthony J. G. Hodenpyl and others to set aside certain judgments as fraudulent towards creditors, and for an Plaintiffs from a dismissing their complaint.

<p>Bill by Ferdinand C. Baurman against Theresia Binzen for a specific performance of a covenant to renew a lease. Decree for defendant.</p>

Suit by the National Park Bank against Warren N. Goddard and others for an injunction and the appointment of a receiver. Plaintiff, as a creditor of Levy Bros. & Co., who were insolvent, attached its debtors’ stock of goods, whereupon actions of replevin were instituted by defendants to obtain possession of such goods, and it was to restrain these actions that this suit was brought.

Action by Jules Breuchaud and others against the mayor, aldermen, and commonalty of the city of New York, to enforce a mechanic’s lien for materials furnished to, and labor performed for, a person contracting with the city of New York for the building of a section of the new aqueduct. From a j udgment sustaining a demurrer to the complaint, plaintiffs appeal.

Action by the Riverside Bank against John Totten on a promissory note. From an order denying a motion to substitute, as plaintiff in the action, one ■Christopher B. Keogh', to whom the note was assigned by plaintiff while the action was pending, plaintiff appeals.

This was an action by Benjamin Lewis against the Chronicle Company, Limited, for libel. The defendant moved for a bill of particulars, which motion the court denied, and from its order defendant appeals.

Action by Catharine Scott, as administratrix of Frank Scott, against the Third Avenue Railroad Company, for the death of plaintiff’s intestate. There was a verdict for plaintiff, and judgment thereon; from which, and from an order denying a new trial, defendant appeals. Judgment and order reversed. For former report, see 13 N. Y. Supp. 344.

Exceptions from circuit court, New York county. Action by Levi Decker against the Gutta-Percha & Rubber Manufacturing Company for breach of contract. After plaintiff had rested, his complaint was dismissed, on defendant’s motion. Plaintiff excepted, and his exceptions were ordered to be heard in the first instance by the general term.

Action by Daniel F. Appleton and others, executors, etc., of William J. A. Fuller, deceased, against Kate Fuller and others, for a construction of the will of William J. A. Fuller, deceased. An interlocutory judgment was entered construing the will and appointing a referee. Defendant Meta Fuller, an infant, by her guardian ad litem, and William M. and Bayard 0. Fuller, moved for a new trial under Code Civil Proc. N. T. § 1001, on case and exceptions.

Action by William H. Knauss against Gottfried Krueger Brewing Company to recover for services rendered as a broker in effecting a sale of defendant’s brewery property to a brewery syndicate. Plaintiff appeals from a judgment dismissing his complaint.

Action by Constance B. Price against Walter J. Price and others to recover dower. Appeal by defendants from a taxation of their costs by the clerk. The special term affirmed the taxation, and defendants appealed to this court.

<p>1. Partition—Costs op Sale—Payment by Referee.</p> <p>Code Civil Proc. N. Y. §§ 1579,1580, provide that where final judgment confirming a sale in partition is rendered the costs of each party to the action, and the ex- ' penses of the sale, including the officer’s fees, must be deducted from the proceeds of sale, and each party’s costs must be paid to his attorney, and each party’s share paid to the party himself, and not to the attorney. Section 1577 provides that a final judgment in such case is one confirming the sale, directing the officer making it to execute proper conveyances, “ and also directing concerning the application of the proceeds of the sale. ” Held that, without such final judgment containing a direction “concerning the application of the proceeds of the sale, ” the officer making the sale had no right to apply any of the proceeds thereof to the payment of the fees of the attorney of plaintiffs in partition, nor had the court the right to enter an interlocutory order directing such payment, and that such officer, having paid such fees out of his funds, was not entitled to recover the same from the plaintiffs in partition.</p> <p>2. Same—Setting Aside Sale—Returning Costs to Referee.</p> <p>In such case, however, the purchaser having been relieved from his purchase, and the officer directed to return to him his cash payment of 10 per cent, of the purchase money, the officer is entitled to recover from the plaintiffs in partition the necessary'costs and disbursements of the sale.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Catherine Y. Murray against Thomas E. Murray. From a judg■met for defendant, plaintiff appeals.</p>

Action by Butler II. Bixby against the mayor, aldermen, and commonalty of New York city to recover an alleged balance of salary as a police justice of such city. A verdict was directed for plaintiff. Defendant moved fora new trial upon exceptions ordered to be heard in the first instance at the general term.

Action by Helen Phillips and Lewis Schoonmaker against Jacob Lindner. There was a verdict for defendant, and from a judgment thereon, and order refusing a new trial, plaintiffs appeal.

Reversed. Action by Frank Work and others against George Parish Ogden and others to foreclose a lien on pledged securities. Dudley Tibbits, claiming to own such property, was made a defendant, and filed an answer. Tibbets appealed from an order denying a motion to set aside the judgment entered against him by default at the trial, and to allow him to defend.

Beversed. Action by Julius J. Frank against Edward A. Davis to foreclose a mortgage. A judgment for plaintiff directing a sale of the land was affirmed on defendant’s appeals to the general term and the court of appeals. The special term then made an order directing judgment against defendant for the amount of his bond less the surplus remaining from the foreclosure of a prior mortgage by plaintiff. From this order defendant appeals. For former reports, see 4 NT.

Modified. ° Proceedings for the settlement of the accounts of John L. Hobson, as administrator with the will annexed of Sarah M. Hobson, deceased. From the decree of the surrogate settling the accounts of the administrator, and from an order denying a motion to amend the account presented for settlement, the administrator and his surety appeal.

Action by Charlotte W. Patten against the United Life & Accident Insurance Association. The court directed a verdict for the plaintiff, and from judgment thereon defendant appeals.

<p>Appeal from special term.</p>

<p>Appeal from special term, New York county. ¡Reversed.</p> <p>Action by Henry Karst against George A. Gane and Robert Dinwiddle, impleaded with others, etc., brought in aid of certain executions on judgments recovered by plaintiff against the firm of Barr & Miller, seeking thereby to remove the lien of two chattel mortgages made by such firm to defendants on property on which plaintiff’s executions were levied. From a judgment for plaintiff defendants appeal.</p>

<p>1. Legacy Tax—Bequest Vesting aetee Death of Testator.</p> <p>Property was-left by a will to a trustee with power to distribute the same among such legatees mentioned in the will, and in such proportions, as he saw fit. Some of the legatees were persons not subject to the collateral inheritance tax. Held, under the provisions of the collateral inheritance tax act, (Laws N. Y. 1887, c. 713,) that the appraisement for the purposes of the taxation shall take place immediately after the death of decedent, and that the tax shall be levied and become immediately due and payable, that there was no basis for the levy of a tax on a share in expectancy of a legatee under such power of appointment, and that it was not within the terms of the act, on its subsequently becoming vested by appointment under the power.</p> <p>3. Same—Penalty for Non-Payment—Necessary Litigation. ,</p> <p>Proceedings for the revocation of the probate of a will are within the meaning of Laws N. Y. 1887, c. 713, § 5, (Collateral Inheritance Tax Act,) which provides that the penalty of 10 per cent, imposed by section 4, for the non-payment of the tax, shall not be charged where, in cases by reason of claims made on the estate, necessary litigation, or other unavoidable causes of delay, the estate of any decedent, or a part thereof, cannot be settled at the end of 18 months from the death of decedent.</p>

Reversed. Motion by the executors, etc., of Cornelia M. Stewart for the assessment of the collateral inheritance tax, under Laws N. Y. 1887, c. 713. Prom an order of the surrogate assessing the tax on the share of James Clinch Smith he appealed to this court.

Reversed. Action by Joseph McGuire against John H. Hudson. From an order denying a motion to vacate an order for the examination of defendant in supplementary proceedings defendant appeals. Code Civil Proe. H. Y. § 2435, authorizes the making of an order for the examination of a judgment debtor in supplementary proceedings within 10 years after the return of an execution whojly or in part unsatisfied.

Reversed. Action by William Sperb against the Metropolitan Elevated Railway Company and another. Prom a judgment for plaintiff, defendants appeal. For former report, see 10 H. Y. Supp. 865.

<p>Case submitted on agreed statement.</p> <p>Action by Jenny Nelson against James Bussell, Bridget Bussell, James Barry, and another.</p>

<p>1. Corporations—Similarity op Name—Injunction.</p> <p>The “Employers’ Liability Assurance Corporation, Limited, ” of Great Britain, doing business in the state of New Tork, sought to restrain defendant, the “Employers’ Liability Insurance Company of the United States, ” a junior company, from doing business in the same state, on account of similarity of name. Held, that a general injunction was properly refused, on the ground that the term “Employers’ Liability ” was descriptive of a well-known branch of insurance business.</p> <p>2. Insurance Company—Doing Business without License.</p> <p>But, in such case, evidence having been introduced to show that defendant was, contrary to law, attempting to do business in the state of New Tork, without a license from the superintendent of the insurance department of the state, by making out policies in Jersey City, in the state of New Jersey", and delivering them in New Tork city, in the state of New Tork, the court erred in refusing the injunction, though there was only slight evidence to show that plaintiff was injured by the acts of defendant in the premises.</p> <p>10 N. T. Supp. 845, reversed.</p>

<p>Appeal from special term, Mew York county. Affirmed.</p> <p>Action by Adolph Luthy against James Began. From a judgment dismissing the complaint, plaintiff appeals.</p>

Reversed. Application by John W. Goodwin for peremptory mandamus to Charles F. MacLean and others, police commissioners of the city of Yew York, to compel them to reinstate applicant in his position as a member of the police force. From an order granting the writ defendants appeal.

<p>Appeal from special term, New York county. Reversed.</p> <p>Action by James Moore, assignee of the right of action of certain stockholders, against James IT. Robertson and another and Arthur D. Williams, receiver of the Electric Sugar Refining Company and others, to impress a trust on certain funds in the hands of such receiver. From a judgment dismissing the complaint so far as the action was against the receiver, and from an order denying a motion made for a reargument of that part of the decision, plaintiff "appeals.'</p>

<p>Associations—Action against Trustee—Verified Answer.</p> <p>The liability of the trustees of a social club, created under Laws N. Y. 1865, c. 368, § 7, which provides that such trustees “shall be jointly and severally liable for all debts due from said company, * * * contracted while they are trustees, ” is contractual, and not penal, and in an action to enforce such liability defendant must file a verified answer.</p>

<p>Appeal from special term, New York county. Reversed.</p> <p>Action by Walter Scott and another against Homer J. Beaudet. From an order granting a motion to vacate an attachment plaintiffs appeal.</p>

Affirmed. Action by Edmund Fitz Gibbon against Seymour G. Smith and another. From an order denying a motion to punish defendant Seymour G. Smith for alleged disobedience of an injunction in proceedings supplementary to execution plaintiff appeals.

Reversed. Action by Stevens Voisin against the Commercial Mutual Insurance Company to recover on a policy of marine insurance. From a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals. For order denying motion to dismiss appeal, see 9 M. Y. Supp. 267, affirmed in 25 M. E. Rep. 325.

<p>Appeal from special term, New York county. Affirmed.</p> <p>Action by Charles Smith and another against the Seattle, Lake Shore & Eastern Bailway Company. From an order directing a discovery of a contract defendant appeals.</p>

Affirmed. Proceedings in contempt by George W. McLean, receiver of taxes of the city of New York, to enforce payment of tax for personal property imposed upon Abraham L. Brlanger, respondent.

Reversed. Action by Charles A. Leale against the Metropolitan Elevated Railway Company and the Manhattan Railway Company for an injunction and for damages. There was judgment for plaintiff on a trial by the court, and defendants appeal.

<p>Appeal from special term, New York county. Affirmed.</p> <p>Action by Kate Reynolds against Catherine Cleary. . From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from circuit court, 27ew York county. Reversed.</p> <p>Action by Eoo Long against the American Surety Company.. From a j udgment for plaintiff defendant appeals.</p>

Reversed. Action by Herbert Booth King and Frederick L. King against Alva E. Davis to charge him with personal liability for a debt of the American Magazine Publishing Company, of which he was president. Verdict and judgment for defendant, and order denying a motion for a new trial. Plaintiffs appeal.

Modified. Action by Edwin S. Jaffray, Howard S. Jaffray, John B. P. Woodriff, and Citarles J. Hadfield, as surviving partners of the late firm of E. S. Jaffray & Co., against Samuel Goldstone, as surviving partner of the late firm of S. Davis & Co., for the recovery of money. From an order denying a motion for leave to discontinue without costs, and giving defendant an extra allowance, and also from an order denying a motion to retax the costs, plaintiffs appeal.

<p>Appeal from special term, New York county. Affirmed.</p> <p>Action by William L. Genin against Samuel K. Schwenk. From an order denying a motion to vacate his arrest, defendant appeals.</p>

<p>Appeal from circuit court, New York county. Affirmed.</p> <p>Action by Mary G-. Pinckney against John B. Day. From a judgment for plaintiff, defendant appeals.</p>

Affirmed. Action by Benjamin B. Johnston against the Manhattan Railway Company and the Metropolitan Elevated Railway Company for an injunction and for damages. Defendants moved for atrial by jury, under Code Civil Proc. 24. Y. §-968, on the ground that the action was for a nuisance, but their motion was denied, and the cause tried by the court. There was judgment for plaintiff, from which defendants appeal.

Reversed. Indictment against Joseph Barondess for extortion. At the close of the case for the prosecution defendant moved for an acquittal, which was denied, and he excepted. There was a verdict of guilty, and from judgment thereon he appeals.

<p>Statute of Limitations—Specific Performance of Contract.</p> <p>The right to sue for the specific performance of a contract to sell land accrues immediately on the full payment of the purchase price, regardless of the fact that the vendee has been in continuous possession since the contract was made; and the action is barred after 10 years from the time of such payment, under Code Civil Proc. § 388, which provides that “an action, the limitation of which is not specially prescribed, * * * must be commenced within 10 years after the cause of action accrues. ”</p>

Affirmed. Action by John A. McHab against the McHab & Harlin Manufacturing Company, and John Harlin, William F. Kyle, John Yule, James Maclay, Arthur L. Merriam, Edward Fifi eld, and John O’Keefe, comprising the officers and board of directors of the company, to compel the payment of dividends, and for relief in other particulars. Judgment was rendered for defendants, and plaintiff appeals.

<p>Assignment for Benefit of Creditors—Preferences.</p> <p>.The only evidence to support a preference in an assignment for the benefit of creditors in favor of the assignor’s wife was to the effect that the debt secured was made up of loans to him out of the surplus of moneys given her for housekeeping expenses. There was no evidence that he intended that such surplus should belong to her, and only in a single instance did he acknowledge any indebtedness on aocount of money so returned to Mm. Held, that the preference was without foundation, and the assignment in consequence void, as in hindrance and fraud of creditors.</p>

Application by the city of Middletown for the condemnation of certain land for a public street. Thomas Neville, a land-owner interested in the proceedings, objected that Henry Wiggins, one of the commissioners appointed to make the assessments for the expense of opening the street, was disqualified by reason of his relationship to A. Y. Boak, who was also interested in the proceeding.

Reversed. Application by Joseph W. Howe and Clarence F. Moulton, executors of the will of George P. Clapp, deceased, for leave under Code Civil Proc. § 1628, to sue Benjamin I. H. Trask on a mortgage bond. From an order denying the application, the executors appeal.

<p>Assignment for Benefit of Creditors—Setting Aside—Pleading.</p> <p>In an action to set aside an assignment for the benefit of creditors on the ground that, with cognate transactions, it creates preferences in excess of those allowed by statute, the omission to charge expressly a fraudulent intent is not fatal to the complaint, if it contains any allegation which, if true, shows the assignment to be fraudulent in law.</p>

<p>Husband and Wipe—False Representations—Actions.</p> <p>A wife who was cognizant of and benefited by the false representations of her husband, since deceased, as to the quantity of land sold by him, he and his wife being tenants thereof by entireties, aud who adopted as her own such representations by joining him in executing the deed, is liable to the purchaser for a deficiency in such quantity.</p>

Affirmed. Action by Mary Astheimer against Patrick J. O’Fray for damages for the death of plaintiff’s husband in a state of intoxication produced by liquor sold him by defendant. The jury found a verdict for plaintiff for $500, and from judgment entered thereon, and from an order refusing a new trial, defendant appeals.

Affirmed. Action by Alice Wilsey against James Rooney, sheriff of Albany county, for conversion of a chattel taken under execution, and for recovery of possession thereof. There was a verdict for plaintiff for $175, not the alternative value of the property, but for damages for the conversion. From an order denying a motion to set aside the judgment, made on affidavits, defendant appeals.

Reversed. Action by Constance B. Price against De Witt C. Holman and others. From a judgment dismissing the complaint on the merits, plaintiff appeals. For prior report, see 2 N. Y. Supp. 184.

Beversed. This was a proceeding against Peter Clark, Jr., before a justice of the peace, on the complaint of B. W. Townsend, for selling liquor without a license. At the trial defendant demanded a jury. One of the jurors was challenged for implied bias, under Code Crim.

<p>Appeal from special term, Clinton county. Reversed.</p> <p>Action by Isaac McConihe against George M. Derby, Charles C. Derby, and Frank D. Derby. There was judgment on a verdict for defendants, and plaintiff appeals.</p>

Reversed. Action by Minerva J. Beaver, as executrix of Asiel G. Beaver, deceased, against Charles C. Beaver and another, administrators of John O. Beaver, deceased. From a judgment for defendants, plaintiff appeals. For prior reports, see 22 27. E. Rep. 940, and 6 27. Y. Supp. 586. For dissenting opinion, see post, 746.

Affirmed. Action by Alfred Humphreys against the Prudential Insurance Company of America for malicious prosecution. From a judgment entered on a verdict for plaintiff, and from the refusal to grant a new trial, defendant appeals.

Reversed. Action by George B. Gallup against August Belmont and others for libel.

Affirmed. Action by James Thompson and another against Clarence R. B. Fuller and another. From a judgment for defendants, plaintiffs appeal. For former reports, see 8 K. TT. Supp. 62, 939.

Affirmed. Api liuation fur a peremptory mandamus on the relation of William J. Best against. Charles M. Preston, superintendent of the hanking department ■of the- slate of New York. From an order denying the mandamus relator appeals.

Reversed. Action by Anna J. Clark against Theodore W. Todd, Charles H. Todd, and Norton Chase, as executors of the last will and testament of Matilda C. Perry. The cause was referred, and the referee made a report in favor of the executors on the facts. The special term set this report aside, and ordered a new trial, and the executors appeal.

Appeals from judgments on report of referee. Affirmed. Action by Lydia A. Clark against Maria MacDonald, Carrie S. MacDonald, and others, to set aside a voluntary conveyance. From judgments for plaintiff, defendants appeal.

Affirmed. Action by Frances McCaffrey against the president, managers, and company of the Delaware & Hudson Canal Company. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Albany county court. Reversed.</p> <p>Action by Fred Keefer against Lewis Greene. From a judgment for defendant, plaintiff appeals.</p>

<p>Railroad Companies—Fires—Proximate Cause.</p> <p>Fire originated in combustible matter along defendant’s railroad track from sparks thrown out by defendant’s engine, and, being blown by a high wind, burned across the lands of two intervening proprietors, and was communicated to defendant’s lands on the other side of a river about 97 feet wide. Held, that the combustible matter negligently left by defendant on its right of way was the proximate cause of the damages sustained by plaintiff.</p>

Affirmed. Application by Nellie A. Cronin for a peremptory mandamus against James W. Coffey, comptroller of the city of Troy. From an order granting the mandamus the comptroller appeals.

<p>1. Defective Highway—Liability of Town—Proximate Cause of Injury.</p> <p>While plaintiff was driving a cutter along a highway in defendant town, she stopped at a point where the road was 17 feet wide, so as to aUow a bob-sleigh in charge of two boys to pass. Plaintiff’s cutter was on the side of the road next to a pond, the bank sloping downwards from the edge of the road for eight feet, with a vertical drop thereafter of four feet to the water. As the bob-sleigh was passing, a barrel of coal rolled from it, and plaintiff’s horse, being frightened, backed over the bank and fell, with plaintiff, into the pond, breaking through the ice. The bank was protected by trees, except for about a space of 13 feet at the point where the accident occurred. Held, that the want of a fence or guard to protect such place was the proximate cause of plaintiff’s injury.</p> <p>3. Same—Contributory Negligence—Instruction.</p> <p>Defendant asked the court to charge that, if the boys stopped at a point outside of the path, where it was safe for plaintiff to pass, and she saw it, it was her duty to have passed at that place. Held, that the court properly refused the request, ■ leaving the subject-matter thereof to the jury, to be considered on the point whether plaintiff acted as a person of ordinary prudence would have done.</p> <p>3. Same—Erecting Barriers—Instructions.</p> <p>The court also properly submitted to the jury the question whether defendant was guilty of negligence in not erecting a barrier at the point where plaintiff was injured.</p> <p>4. Same—Accident of Unforeseen Nature.</p> <p>The fact that the accident in question was of a class rare, unexpected, and unforeseen, was not sufficient to exempt defendant from liability.</p> <p>5. Same—Liability of Town Instead of Commissioner.</p> <p>Plaintiff’s accident happened on March 34th. On March 6th, a commissioner of highways had been elected to succeed the incumbent. Defendant requested the court to charge that, if the action could not, for any cause, be maintained against the commissioner in office on March 34th, then that the same could not be maintained against defendant. Held, that the court properly refused so to charge, under Laws N. Y. 1881, c. 700, § 1, making the town, instead of the commissioner of highways, liable for damages sustained by reason of defective highways, and section 3, making the commissioner, through whose fault the highway became or remained defective, liable in damages to the town.</p> <p>6. Same—Evidence—Photograph of Locality.</p> <p>The court properly admitted in evidence a photograph of the place of plaintiff’s injury, taken after the erection of a fence there, the court having stated to the jury that the erection of the fence was not evidence of negligence on the part of defendant.</p> <p>7. Same—Evidence—Statements to Commissioner.</p> <p>In an action against a town to recover damages caused by a defective highway, the court may receive evidence of statements made to the commissioner of highways regarding the condition of the road.</p>

Affirmed. Action by Wallace M. ICilbourne, as supervisor of the town of Liberty, against the board of supervisors of Sullivan county. There was judgment for plaintiff, and defendant appeals.

Affirmed. Action by Charles Barnum, as supervisor of the town of Thompson, against the board of supervisors of Sullivan county. There was a judgment for plaintiff, and defendant appeals.

Reversed. Action by the Prudential Insurance Company of America against S. Allen Berger and David Brown on a penal bond. There was judgment for plaintiff for $57.98, from which it appeals.

Modified. Action by Edward Roberts, plaintiff, against John Cullen and others, defendants, to recover the possession of land. From an order directing plaintiff to furnish a bill of the particulars of his claim, plaintiff appeals. , Code Civil .Proc. FT. Y. § 531, provides that “ the court may, in any case, direct a bill of the particulars of the claim of either party to be delivered to the adverse party. ”

Beversed. Action by John Henry Barry, an infant, by James Barry, his guardian ad litem, against the Second-Avenue Railroad Company for injuries to plaintiff. There was a verdict for plaintiff, and from judgment thereon defendant appeals.

<p>Appeal from trial term. Affirmed.</p>

¡Reversed. Summary proceeding by Mary I. Kelly against Elliott E. Smith. There was judgment for plaintiff, and defendant appeals. In 1885, Alfred Corning Clark, owner of the fee, let the premises to Thomas P. Kelly for a term of 10 years. On 15th January, 1891, Kelly sublet for the residue of the term to the defendant, Smith. On 13th June, 1891, Kelly assigned the Smith lease to the respondent, Mary I. Kelly, and she was the petitioning landlord in the proceeding.

<p>Landlord and Tenant—Holding over—Liability for Kent.</p> <p>A landlord, on being notified that his tenant would move at the end of the term, posted a notice “To let” on the premises; and three days after the expiration of the term, during which time the tenant was moving his goods, the landlord received the keys, and took possession. Held, that the tenant was not liable for rent for a new term, but only for the use and occupation of the premises while he held over.</p>

<p>Motion for leave to go to the court of appeals. Denied. For prior report,, see 15 3ST. Y. Supp. 293.</p>

Reversed. Action by Oscar Compton against John D. Heissenbuttel and others to recover damages arising from the breach of defendants’ agreement to pay, as a. part of the freight agreed to be paid to plaintiff for the carriage of coal, the-charge for wharfage incurred by the use of a wharf at Gowanus creek, Brooklyn, y. Y., for the purposes of plaintiff’s canal-boat while awaiting discharge of its load.

Affirmed. Action by Frederick Stark against Hugh J. Grant, sheriff of the city of New York, to recover chattels taken in execution against Rosenthal. From a judgment of the general term of the city court affirming judgment on a verdict, and from an order denying a motion for a new trial, defendant appeals.

<p>Disorderly Persons—Support of Family—Recognizance—Forfeiture.</p> <p>Laws 1883, c. 410, (Consolidation Act,) §§ 1455,1456, provide that where a person has been convicted of being a disorderly person, or of having threatened to abandon, or having actually abandoned, his family in the city of New York, without adequate support, or in danger of becoming a burden on the public, the magistrate convicting shall order a specified sum to be paid to the commissioners of charities and corrections weekly for the support of his family, such order to be for the period of a year. Held that, where defendant was convicted under this act, and ordered to make such weekly payment, and another person entered into a recognizance that he should so pay it, failure to make the payments forfeited the recognizance, though defendant, before such failure, had offered to live with his wife and support her, which offer she declined.</p>

<p>1. Trover and Conversion—Sale op Samples—Weight op Evidence.</p> <p>In an action for the conversion of goods, claimed by defendant to have been purchased of plaintiff, and alleged by plaintiff to have been furnished as samples, it is not necessary that plaintiff’s contention should be established beyond reasonable doubt to support a verdict in his favor.</p> <p>2. Same—Evidence.</p> <p>In such case, the conversion will be established by showing a sale of the samples by defendant, and a refusal, on demand, to return the same.</p> <p>3. Same—Inability to Return Samples.</p> <p>It is no defense, in such case, that defendant was unable to return the samples by reason of the sale of the same before demand for the return thereof.</p> <p>15 N. Y. Supp. 825, affirmed.</p>

Affirmed. Action by James M. Sinclair and Hector Sinclair, Jr., against Robert A. Hollister and William I. Merritt and one Tilton. From orders denying leave to file supplemental answer, defendants appeal.

Affirmed. Action by Annie Sugarman against the Manhattan Elevated Railroad Company for the burning of plaintiff’s awning, which was set on fire by a spark or coal from the engine of defendant’s passing train. There was judgment for plaintiff, and defendant appeals.

Action by George Lewis and another against George W. Hojer to recover the amount of a draft accepted by defendant. From a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, plaintiffs appeal.

Action by Susan Treanor against the Manhattan Bailway Company for injuries to plaintiff’s person caused by a blow from a bottle thrown by defendant’s servants from its elevated railway into the street below, while plaintiff was walking along the crossing. There was a verdict for plaintiff, and from judgment thereon defendant appeals.

Action by Maurice M. Sternberger and others against the Manhattan Railway Company and others for damages to the rental value of plaintiffs’ property. The jury found a verdict for plaintiffs for six cents damages. From judgment thereon, and from an order denying a new trial, asked on the ground of inadequacy of damages, plaintiffs appeal.

Action under the civil damage law by Annie M. McIntyre against James Wynne, a liquor dealer, and Caroline Wallach, the landlord of defendant Wynne. The jury were instructed that if they found for plaintiff they might assess the damages against defendants in different amounts, and they found against defendant Wynne in the sum of $1,000, and against defendant Wal-Iach in the sum of $250.

Action by Kate Healy against Patrick Murphy, as administrator of Robert Murphy, deceased, to recover for services alleged to have been performed by ■plaintiff for decedent of the value of $156; for board furnished to decedent for one month, $25; for money expended for decedent at his request, $45; and money loaned to decedent, $50; the aggregate of which several claims, together with interest, amounted to $306.36.

<p>Action by John W. Billwiller and Charles J. Billwiller against Gabriel Marks. An attachment was issued against the property of defendant, who moves to vacate the same.</p>

<p>Ejectment by James W. Holloway against Franklin H. Delano and others.</p>

<p>Corporations—Loans to Stockholders—Conversion—Fledge.</p> <p>Under Laws 1848, c. 40, § 14, forbidding a corporation to loan money to one of its stockholders, the trustees have no power to ratify such a loan: and hence their actian in selling securities given as collateral for such a loan will not bar an action for the balance due by the stockholder as funds of the corporation unlawfully converted by him. Matham, J., dissenting.</p>

Application of Jane Le Breton Brugh, who had been declared a lunatic, to have the commission granting custody of her person and property superseded. From an order confirming the report of a referee in her favor, Mary Le Breton Mitchell, her committee, appeals. Allirmed.

Action by Moses T. Sayles, assignee of Kennedy B. Dowsley, against the-National Water Purifying Company, for wrongful entry on the assignor’s-premises, and taking thence a water-filter claimed by plaintiff’s assignor as-part of realty purchased by him at a receiver’s sale. From a judgment for defendant, plaintiff appeals.

Action by Jennie Hochstrasser against George B. Martin and Alvin 0.

<p>Master and Servant—Negligence—Rules for Protection of Servant.</p> <p>Plaintiff’s intestate, (defendant’s employe,) charged with the duty of making up trains in defendant’s railroad yard, was killed, while riding on the platform step in front of defendant’s yard-engine, by collision with a loaded wagon at a planked wagon-way crossing used by defendant for carrying material to its repair-shops. At that crossing there were six tracks, five of which were used for storing loaded cars, and it was the duty of the deceased to divide the cars there so as to keep the way open for the passage of wagons. The only claim of negligence on the part of defendant was that intestate’s view of the approaching wagon was obstructed by cars standing near the crossing, and that defendant should have made a rule fixing the distance from the crossing at which the divided cars should be left. Weld, in the absence of expert testimony showing what rules were necessary and proper, that a judgment of nonsuit against plaintiff should not be set aside.</p>

Action by John M. Holmes against the Union Telegraph & Telephone Company. From a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Peter A. Strack against John Hurd. From a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Action by John M. Barnett against Asahel R. Wing and another, executors of Edwin B. Hash, deceased, to recover on an alleged paroi agreement by defendants’ testator that if plaintiff would indorse a note for $1,500 for Melvin A. Hash, and Melvin A. did not pay it,-he, the testator, would. The note was solely for the benefit of the maker, Melvin A. Hash.

<p>Appeal from court of sessions, Schoharie county.</p> <p>Luther L. White was convicted of forgery, and he appeals.</p>

<p>"L Bigamy—Weight op Evidence.</p> <p>Defendant was indicted for bigamy, in that he was married to L., in the state of New Jersey, in 1887, and afterwards, during the life of L., married to D., in the state of New York. His defense was that his marriage to L. in New Jersey was, under the laws of New Jersey, absolutely void, by reason of a previous marriage to one B. in New York. The only evidence of such prior marriage to B. admitted by the court was the testimony of defendant. Held, that the jury were not bound to believe his uncorroborated statement, and that a verdict of conviction should not be set aside.</p> <p>'2. Same—Evidence op Marriage—Informal Certificate.</p> <p>Defendant offered in evidence a paper purporting to be an informal certificate of his marriage to B., alleged by defendant to have been signed by the officiating minis'""!', but which did not state the names and residences of the parties, that they V, ure known to the minister, were of sufficient age to contract marriage, the names and places of residence of attesting witnesses, nor that, after inquiry, no impediment to the marriage appeared, as required by the New York statute. Held, that the certificate was properly rejected.</p> <p>8. Same—Res Gksive.</p> <p>Such certificate was not only inadmissible as a statutory certificate of the marriage, but as a part of the res gestee, since it constituted no part of the marriage ceremony, and was not shown to have been made and delivered at the time of the marriage.</p> <p>•4. Same—Cohabitation as Evidence of Marriage.</p> <p>The fact that defendant introduced the person mentioned in such certificate as his wife, and lived with her as such, while competent evidence to show a marriage, was not conclusive on that question, especially in view of defendant’s declaration, made at the time of his marriage in New Jersey, that he was then unmarried.</p>

Action by Jennie K. Hamilton against Edwin L. Patrick and another for specific performance of a contract for the sale of lands, and for the recovery of damages for the violation thereof. Prom a judgment for plaintiff, defendants appeal.

Prosecution against Orson M. Wilson for violating an ordinance of the city of Kingston. Prom a judgment of the county sessions affirming a conviction and sentence by the recorder’s court of said city defendant appeals.

<p>Municipal Corporations—Defective Sidewalks—Recent Fall of Snow.</p> <p>Snow accumulated on a sidewalk in defendant village, and being allowed by the village authorities to remain, became rounded and ridgy near the center of the walk. Thereafter snow and sleet fell to the depth of two inches, and froze over the old coating of snow, and on this fresh ice plaintiff fell and was injured. Held that, defendant not being chargeable with negligence for plaintiff’s fall on the fresh ice, a nonsuit was properly entered, the jury having no right to inquire whether defendant was negligent in suffering the old snow to remain on the walk.</p>

Action by John Reed against George McConnell and another. The complainant seeks a recovery—First, for the services and expenditures of the plaintiff in building a tannery for defendants’ firm at Oregon, Warren county; second, for damages sustained by the plaintiff because of the breach by the defendants of an oral agreement to take the plaintiff into the.tannery business upon the completion of said tannery, in the erection of which the services and expenditures mentioned in…

<p>Appeal from circuit court, Clinton county.</p> <p>Action by Jeremiah Hailey against Sophia Ano. From a judgment for plaintiff, defendant appeals.</p>

Action by William Moore against Simeon Brown. The complaint alleged that in January 1890, George H. Wood and Adolphus Shields, citizens of this state, discovered a garnet mine upon lands belonging to the people of the state, in the town of Minerva, (describing the lands,) being about six acres; that previous to December 23, 1890, they duly filed in the office of the secretary of state a notice of said discovery, with a description of said lands, and on said December 23,…

Action by James O. Birge, a tax-payer of the town of Oswegatchie, against the defendant the Berlin Iron Bridge Company, to restrain it from constructing a bridge under a contract made with the defendant Joseph Wagner, as commissioner of highways of that town, alleged to have been made in pursuance of authority given at a special town-meeting of that- town.

Certiorari on the relation of the Seth Thomas Clock Company, a foreign corporation doing business in the state of New York, to review the decision of the comptroller of the state imposing a tax on relator.

<p>Certiorari on the relation of Patrick J. McTigue against James H. Man nin'g, ex officio president, and others, composing the board of .police commif sioners of the city of Albany, to review the action of defendants in striking him from the roll of membership of the police force of the city of Albany. Relator was convicted of an assault on a police officer, and, on such fact appearing before the board, he was dismissed from the force.</p>

Action by Charles S. Weston against Mary R. Stoddard and others for partition. From an order awarding costs to both parties, plaintiff appeals. Affirmed. For former report, see 14 S'. Y. Supp. 580.

Application by Edward Tracy and others, as water commissioners of the village of Lansingburgh, to acquire the right to appropriate a stream of water to the uses of the village. From an order confirming the report of commissioners appointed to estimate damages to proprietors, Warren Erwin, a proprietor, appeals.

<p>Wills—Action to Construe—Parties.</p> <p>Where an administrator doubts the power of a legatee, under provisions of the will, to dispose of bonds bequeathed by the testator, his remedy is by action to recover the same from the transferees of the legatee, and he cannot maintain an action for the construction of the will, making the transferees parties, to determine the validity of the transfer to them.</p>

<p>Arrest—Fraudulent Intent—Non-Performance of Contract.</p> <p>Defendant entered into an executory agreement with plaintiffs in order to induce them to part with certain property. Meld, that failure to perform the agreement by defendant would not raise a presumption that he intended non-performance at the time of the agreement, and that, in the absence of other facts showing a fraudulent intent, the court properly vacated an order of arrest entered against defendant. ,</p>

Action by William H. Grossman and others against the Universal Rubber Company. From a judgment entered on a verdict directed for plaintiffs, and from an order denying a motion for a new trial made on the judge’s minutes, defendant appeals.

, Action by Angelina T. Arthur and others against William Schriever and another. From an order denying a motion to vacate a judgment for defendants and an allowance for costs, plaintiffs appeal. Affirmed. For former report, see 12 N. Y. Supp. 226.

Action by Elia B. Tabor against Edward. L. Tabor for divorce. From an order granting defendant’s motion to dismiss the complaint for neglect to prosecute, plaintiff appeals.

Action by Frederick Gans against James Hughes. The complaint alleges (1) that plaintiff “is the lessee of the store and bakery known as ‘ 82 Berry Street,’ in the city of Brooklyn, and was at the time hereinafter mentioned, and still is, entitled to the quiet possession and enjoyment of the same; (2) that on or about the 10th day of June, 1888, the defendant wrongfully entered the said premises, which were occupied by the plaintiff, and unlawfully, and against plaintiff’s…

<p>Appeal from circuit court, Orange county.</p> <p>Action by Charles H. Gross against the Pennsylvania, Poughkeepsie & Boston Railroad Company for injuries sustained by the negligence of defendant. Judgment for plaintiff, and order denying motion for a new trial. Defendant appeals.</p>

Lawrence county. ' Action by Erastus P. Backus, sheriff, etc., against William H. Kimball, executor of Pliny Wright, deceased.

Stoddard against the president, managers, and company of the Delaware & Hudson Canal Company. From an order changing the place of trial plaintiff appeals.

<p>"1. Action on Contract—Performance by Plaintiff—Evidence.</p> <p>Defendant agreed orally that if plaintiff, his niece, and her husband would dispose of their real estate and personal property in another county, and come and live with him, and work his land, and take care of and maintain him, he, being then very old and living alone, would give them the use of a part of the premises and of his furniture and chattels during his life, and the whole of the premises and furniture on his death, and would, on their coming to live with him, give them a written agreement to that effect. Plaintiff and her husband sold their real and personal property, came to live with defendant, and about six months thereafter were ejected by him from his place without fault on their part. The written agreement promised by defendant was never executed by him, and defendant conveyed the land to a third person. Reid, that plaintiff, having performed the contract on her part, had a vested right to demand performance by defendant, and that defendant, having placed specific performance out of Ms power, was liable in damages for breach of the contract.</p> <p>8, Same—Parol Contract—Statute of Frauds..</p> <p>In such case, plaintiff being entitled to specific performance of the oral promise to execute a written agreement, the case stood thenceforth as if such specific performance were decreed, and therefore the executory-contract for the ultimate title of the chattels and land was to be considered as if in writing, executed and delivered.</p> <p>3. Same—Measure of Damages—Value of Contract.</p> <p>The measure of damages in such case was the value of the contract, and the value of the contract was the present value of what plaintiff would ultimately be entitled to receive thereunder, less the value of whatever defendant should show ought to be deducted therefrom; and that defendant could not claim deduction for the value of his support after the ejection, which, by his own wrong, he had prevented plaintiff from furnishing.</p> <p>4. Same—Specific Performance—Equitable Cognizance of Right to Damages.</p> <p>Whether or not plaintiff was entitled to specific performance of the contract to convey, or only to damages for the breach of the oral agreement to execute a written agreement, was unimportant, the case being the subject of equitable cognizance, even though specific performance should be denied.</p> <p>5. Same—Statute of Frauds—Part Performance.</p> <p>The contract for compensation in land, though verbal, yet, being partly performed, was not within the statute of frauds.</p>

Appeal frpm judgment on report of referee. Action by Henrietta Church, executrix of Walter S. Church, deceased, against Daniel D. Barkman, executor of Johan Jost Becker, deceased, for an injunction. From a judgment entered on the report of a referee ascertaining defendant’s damages on dissolution of the injunction, plaintiff appeals.

<p>Judgment against Devisee—Equitable Priority.</p> <p>A judgment recovered by the executor against a devisee on a debt due the testator is not in equity entitled to priority of satisfaction out of the lands devised, as against an execution creditor of the devisee claiming under a prior docketed judgment recovered against the devisee after the testator’s death.</p>

Action by Andrew F. Pitts against William S. Lighthall and John A. Lighthall. From a judgment for plaintiff, and from an order denying a motion for a new trial, made on the minutes of the judge, defendants appeal.

Petition by Emma J. Taggard to compel Henry H. Hewitt, executor, etc., of James W. Taggard, deceased, to account for and pay over moneys received by him, etc. Hewitt appeals from an order of the surrogate requiring him to file an intermediate account of his proceedings as trustee under the will. Affirmed. The will of James W. Taggard was admitted to probate, February 7, 1867. The appellant since 1872 has been the sole surviving executor thereof.

Action by Alvah J. Zimmer against the New York Central & Hudson River Railroad Company. There was a verdict for plaintiff, and from a judgment entered thereon, and from an order denying a motion for a new trial, defendant appeals.

<p>Motion for reargument.</p> <p>Action by James M. Smith, as executor, against Prank Pelott and others. A judgment dismissing the complaint was affirmed on appeal. 15 N. Y. Supp. 972. Plaintiff moves for a reargument.</p>

Action by Mary T..Collier against Emeline Miller in her own right as legatee, and also as executrix, of Allen S. Miller, deceased, Peter S. Anderson, Eugene Stupplebeen, and others, defendants.

Action by Joseph W. Bradshaw and others against the Agricultural Insurance Company to set aside an award of appraisers under a policy of fire insurance issued to James J. Bradshaw, deceased, and to recover for the loss under the policy. From a judgment for plaintiffs, defendant appeals.

Action by Elizabeth A. Clapper against the town of Waterford to recover for personal injuries from a defect in a gutter bridge on defendant’s highway. Defendant appeals from a judgment entered upon a verdict for plaintiff for $500, and from an order denying a motion for a new trial.

Action by Charles E. Huested and Frank W. Clark against Willard D. Bliss on an account for goods sold and delivered, brought in a justice’s court. Defendant appealed to the county court from a judgment for plaintiffs, and from an affirmance by such court appeals to this court.

Action by Russell Brusie against Peck Bros. & Co. From an order denying a motion to strike certain unauthorized words from the judgment, defendants appeal.

<p>Appeal from special term, Kings county.</p> <p>Action by Georgianna Bigelow against William H. Davol and others. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Bussell Brusie against Peck Bros. & Co. to recover royalties-agreed to be paid for use of plaintiff’s patent.

Action by Ann Kline against Lucy McDonnell and another. From a judgment entered in favor of plaintiff, upon the decision of the court on a trial without a jury, defendants appeal. Modified.

Action by William H. Jackson against Stephen Collins. Defendant appeals from a judgment’ of the county court affirming a judgment of a justice’s court in favor of plaintiff.

Action by John B. Rowland and' Mary 0. Newland to compel the Hudson River Water-Power & Paper Company to lower its dam across the Hudson river at Mechanicsville so as to relieve the plaintiffs’ mills and water-power above from back-water. Judgment for defendant! Plaintiffs appeal. The plaintiffs own a dam, water-power, and mills at Stillwater, and they and their grantors have owned and maintained the dam and operated mills by means of the water-power for upwards of 50 years.

Action by the Bagley & Sewell Company against the Saranac River Pulp & Paper Company to recover the contract price on the purchase of certain machinery used in the manufacture of wood pulp. The defense set up in the answer was that the machinery was purchased by the defendant under a guaranty by the plaintiff as to the quantity and quality of work it would perform, and that the machinery did not fulfill the requirements of that guaranty.

Action by George B. Cooper against Watson P. Harvey, Carrie Harvey, and others to foreclose a mortgage. Pending the action plaintiff died, and the action was continued by Alfred Cooper and another as ancillary administrators. Judgment for plaintiff. Defendants appeal.

Complaint against James M. Wood for failing to abate a nuisance, as required by an order of a board of health. Defendant appeals from a judgment affirming a conviction and judgment thereon rendered in the recorder’s court of the city of Gloversville.

Action by Mary B. Van Cleaf against Catharine Burns and others for dower. Defendants appeal from a judgment for plaintiff. Reversed. The action was brought for dower of lands in Kings county. The defense was that the right to dower was barred by a judgment of absolute divorce obtained in Illinois by the husband of plaintiff against her for her misconduct. The case was twice tried.

Action by James Cargain, Jr., against William W. Everett. From a judgment of the county court affirming a judgment of a justice entered on the verdict of a-jury, defendant appeals.

Application by John J. Campbell for leave to sue William Ernest on a judgment, and for an injunction restraining him from disposing of his property. From so much of the order granting the application as allows the injunction defendant appeals. Reversed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Caroline L. G. Scott against the Haverstraw Clay & Brick Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Andrew J. Nutting against the Kings County Elevated Railway Company. From a judgment entered on the verdict of a jury and from an order denying a motion for a new trial defendant appeals.

Ejectment by the New York Central & Hudson River Railroad Company against Tilomas Aldridge and others (four eases) to recover a strip of land on the east shore of the Hudson river. Plaintiff claimed title to the same under a state grant, December 26, 1873, as of lands partly covered by water.

Application by John J. Curtin for mandamus to compel the board of education of the city of Brooklyn to reinstate him, as an honorably discharged Union sailor, to his position as a gas-fitter in the employment of said board. From an order refusing a peremptory mandamus relator appeals.

Action by Joseph Kellow, Jr., against the Long Island Railroad Company for personal injuries by a collision on defendant’s railroad between two of its trains, on one of which plaintiff was a passenger. Defendant admitted the negligence of its servants and its liability therefor, and the only question was the amount of damages.

Action by Margaret A. Kessler against Frank S. Lockwood. From a judgment of the county court, affirming a judgment of a justice for plaintiff, defendant appeals.

Action by Bridget Hoonan, administratrix of Patrick Hoonan, deceased, against the New York Central & Hudson River Railroad Company, to recover for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. Judgment for plaintiff, and order denying a motion for a new trial. Defendant appeals.

Action by the Excelsior Brick Company against the village of Haverstraw ' to restrain the village, its officers, agents, and servants, from entering upon or interfering with certain lands claimed by plaintiff, which defendant alleged were public streets.

Action by William G. Slater and others against Hannah McGuire to recover on a contract for the erection of a building on defendant’s premises. Plaintiffs appeal from a judgment of nonsuit, and from an order denying a motion for a new trial. Reversed. The agreement for the erection of the house was made in writing by William McGuire, husband of defendant.

Action by Adrian Iselin against Sarah Smith and others to restrain defendants from interfering with a fence. Defendants appeal from an order granting leave to plaintiff to discontinue the action.

Action by Francis Dent against the Society of the Friars Minor of the Order of St. Francis. From an order disallowing certain cross-interrogatories proposed by plaintiff to be administered to witnesses to be examined on-commission at Rome, Italy, plaintiff appeals.

<p>1. Landlord and Tenant—Lien by Contract—Validity of Agreement.</p> <p>A lease of a brick-yard provided that at all times, on and after the first quarter’s rent should become due, the lessees should keep in the yard brick enough to pay one quarter’s rent. The lessees mortgaged all the brick on the yard, rent being then due. Held, that the agreement was valid, and that no title to the brick passed by the mortgage, as against the lessor’s demand for rent.</p> <p>2. Same—Confusion of Goods—Rights of Landlord.</p> <p>In such case, plaintiff’s rights were not affected by the fact that the amount of reserved brick was mixed with other brick in the yard, the landlord having a right, in case of confusion of goods, to take out of the same an amount equal to his demand.</p>

Action by Edward Haynes against Edward Hatch. Plaintiff appeals from an order denying his motion to punish defendant for contempt for failing to appear for examination before trial. Affirmed. The order requiring defendant to appear for examination (see 15 H. T. tiupp. 615) before trial was not served upon him personally, but upon the attorney who had appeared for him in the action.

<p>Appeal from circuit court, Putnam county.</p> <p>Action by Sarah Coyne against the Manhattan Bailway Company. Prom a judgment for plaintiff, defendant appeals.</p>

Action by James H. Albee against the Ghappaqua Shoe Manufacturing Company to recover damages for personal injuries. Plaintiff’s horses took fright at the sounding of defendant’s “seven-mile whistle,” and, running away, threw plaintiff from his wagon, causing the injuries in question. From a judgment for plaintiff, defendant appeals.

Action by Nelson H. Duryea against Tredwell D. Smith and others for an alleged trespass. Defendants appeal from a judgment entered upon a verdict for plaintiff.

Action by Grove M. Harwood against oscar H. La Grange, Oliver P. Buel, Robert G¡ Ingersoll, and others to establish and enforce alien for professional services. The defendant La Grange was employed to conduct several actions, and was to receive a proportionate share of the amount recovered as compensation. He employed plaintiff as counsel, and agreed to divide the fee re. ceived by him between them.. The defendant Buel was employed by plaintiff, and was to be paid by him.

Action by Michael T. Daley against Theodore Hellman and Emil Corbbacli to recover treble damages, under Code Civil Proc. §§ 1900. 1901, for the vexatious continuance of an action without consent of the plaintiff therein.

Nelson, deceased. The will was properly signed, and the attestation clause recited a compliance with all the formalities required, excepting that it did not state that the witnesses subscribed their names at the request of the testator.

Action by Samuel McElroy against Henry Mumford and another. From a judgment entered on the decision of the court on a trial without a jury, upon a stipulation by the parties setting forth the facts admitted, defendants appeal. Affirmed. For former report, see 13 27. Y. Supp. 437.

Action by Matthew Gaunt Hepworth against the Union Ferry Company of Brooklyn. The charter of the defendant expired pending the action, and from an order continuing the action against its directors as trustees defendant appeals.

Action by George Krey, as administrator, etc., of Adam Krey, deceased, against Charles Schlussner, to recover for the death of plaintiff’s intestate caused by the alleged negligence of the defendant. Plaintiff appeals from a judgment dismissing his complaint. Reversed.

<p>For majority opinion, see 16 N. Y. Supp. 473.</p>

Exceptions from circuit court, Kings county. Action by Frank McNally and others against the Phenix Insurance Company of Brooklyn. The complaint was dismissed, and plaintiffs move for a new trial on exceptions ordered to be heard at the general term in the first instance.

Action by the people against Aaron A. De Grau w and others to restrain them from unlawfully exercising corporate privileges and franchises. Plaintiff appeals from a judgment for defendants.

Action by Emanuel Simmons against George W. Evans. From a judg-. ment of the county court, directing a verdict for defendant, plaintiff appeals..

Action by Ann Eliza Wilcox against Charles J. Quinby, and another, individually and as executors of Daniel Quinby, deceased. From an order dismissing the complaint plaintiff appeals.

Action by Henry W. Thomas, administrator of Samuel B. Thomas, deceased, against Gerd H. Henjes. From a verdict for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

Action by Frederick H. Schild against the Central Park, North & East River Railroad Company. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>Appeal from circuit court, Queens county.</p> <p>Action by Louis P. Weighmann against Benjamin Sire and others. From a judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, defendants appeal.</p>

cou nty court. Action by Frances E. Parsons against Edward Hughes to recover for a balance of account for board and lodging. Defendant appeals from a judgment entered upon a verdict for plaintiff. Affirmed.

Action by Elmer E. Furman against J. Myers Taylor and others, commissioners of highways of the town of Bamapo. From a judgment for plaintiff, defendants appeal. Affirmed. 4 Bev.

On motion for reargument. Application by George H. Nichols and William H. Nichols for mandamus to compel the board of supervisors of Queens county to make provision for the payment of certain expenses incurred by the sheriff of the county in protecting relators’ property from a threatened attack of “strikers,” which expenses had been paid out of funds advanced by relators, to whom the sheriff assigned his claim therefor.

Certiorari on the relation of the trustees of the village of Jamaica and Aaron A. Degrauw and others, tax-payers, against the board of supervisors of Queens county, to review the action of the board in directing the improvement of certain highways in the town of Jamaica, and an issue of county bonds to defray the expense thereof.

<p>Limitation op Actions—Running op Statute.</p> <p>In 1864 one T. gave a note to W., who was to collect the same, and. divide the amount between himself, plaintiff, and others. W. died in 1871, without having paid plaintiff’s share of the note, and in 1885 plaintiff sued W.’s administrators for the same. Held, that plaintiff’s claim was barred by limitation. 14 N. Y. Supp. 566, approved.</p>

<p>Appeal from circuit court, Dutchess county.</p> <p>Action of ejectment by John Mitchell against Edward Lane. From a judgment for defendant, plaintiff appeals. Modified as to costs.</p>

Action by Abigail De Puy against William Quinn to recover damages under the civil damage act. There was a judgment for defendant, and plaintiff’s motion for a new trial on the minutes was denied, and plaintiff appeals.

Action by Charles Hartshorn against Kansom ÍT. Chaddock. Judgment for $866.25 damages, and $330 costs, was entered in Steuben county, on the-report of a referee, and defendant appeals.

Proceeding for the judicial settlement of the account of Benjamin F. Grant, as executor of the will of James Benedict, deceased. From the decree rendered therein the legatees appeal.

Action by Mary A. Guenther, as administratrix of Samuel Guenther, deceased, against James Lockhart. A nonsuit was entered, and plaintiff’s exceptions were ordered to be heard at the general term in the first instance.

<p>Appeal from special term, Ontario county.</p> <p>Action by William Garratt against the trustees of the village of Canandaigua. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Alteration oe Note—Estoppel to Assert.</p> <p>Where the Indorser of a promissory note agrees in writing with the maker and a "bona fide holder for value that the maker of the note shall be discharged from all liability on payment of a certain sum, without affecting the indorser’s liability, he is estopped, as against such bona fide holder, to insist that he is discharged by rear son of a material alteration of the note made after the indorsement, where the agreement to release the maker contained a copy of the note with the alleged alteration.</p> <p>■3. Same—Burden oe Prooe.</p> <p>The burden of proving that a note sued on has been altered is on defendant.</p>

Apppeal from special term, Tates county. George W. Finton presented to James W. Eggleston and another, as administrators of Stephen Eggleston, deceased, a claim against the estate arising out of a breach of a covenant of warranty in a deed from decedent to claimant. The claim was referred under the statute.

Action by Ambrose Moore against Percival L. Drayton. From a judgment entered on a verdict for defendant, and from an order denying a motion for a new trial on the minutes, plaintiff appeals.

<p>J. Henry Hallock presented to Etta A. Bacon and others, as executors, a claim against the estate represented by them. The executors disputed the claim, and it was referred. The referee found for the claimant, the report was confirmed, and costs were taxed for the claimant. The executors move for a relaxation.</p>

Lawrence county. Action in the name of Matthew Barker, a tax-payer of the town of Oswegatchie, in St. Lawrence county, to restrain the town, its supervisor, and board of town auditors and commissioner of highways, also the board of supervisors of St. Lawrence county, and certain commissioners appointed by such board, from further action under a bill of resolution of the board of supervisors of St. Lawrence county, passed May 15, 1891, and from taking any action or proceeding…

Lawrence county. Action by Matthew Barker against the town of Oswegatchie and Joseph M. McOonville and others. From an order refusing to punish certain of defendants as for a contempt, plaintiff appeals. Affirmed. For former reports, see 10 N. T. Supp.'834, and 11 N. Y. Supp. 942.

Lawrence county. Action by Mathew Barker against the town of Oswegatchie and others. From an order denying an application for an additional allowance for costs, plaintiff appeals. Reversed. For former reports, see 10 R. Y. Supp. 834, and 11 N. Y. Supp. 942.

Certiorari on the relation of Henry Silkens against John McGlyn and others, composing the board of excise of the town of New Utrecht, to review their action in revoking relator’s license as a saloon-keeper.

<p>Discovert—Examination oe Plaintiff—Sueficienot of Defense—Evidence.</p> <p>In an action against husband and wife to foreclose a mortgage on the husband’s real estate, the wife filed an affidavit before answer, stating that the mortgage was the property of her husband, co-defendant, and that plaintiff and he brought the action collusively, for the purpose of cutting off defendant’s contingent right of dower in the premises, and asked an order for the examination of plaintiff and co-defendant before .trial. The evidence showed that the husband was on ill terms with his wife; treated her with cruelty; attempted to obtain a release of her dower-rights; and supported her and his children meagerly, and threatened to leave them unprovided for by his will. Held, that the evidence justified an order for the ex-animation, and that the affidavit setting forth these facts as a defense was sufficient, under Code Civil Proc. § 872, providing that the affidavit by defendant in such case before answer shall state the nature of the defense.</p>

Judicial settlement of the accounts of Patience 0. Logan and others, execntors of William J. Logan, deceased. The executors appeal from an order directing payment of a portion of the estate to Mary Eliza Clanny and Eleanor Roekfellow, (formerly Clanny.)

Proceedings for the probate of the will of William W. Merriam, deceased. Testator devised his entire estate to the “government of the United States of America.” Prom a decree admitting the will to probate Eleanor S. Woods and others appeal.

Petition by Rosalia Whitmore for an assessment of damages alleged to have been caused by a change in the grade of a road by the village of Tarry-town. Part of the road — being less than half its width—had been cut down by the village authorities, and thereby a steep embankment had been left in front of petitioner’s property.

Action by John Flannery against J. Wesley Van Tassel, sheriff of Dutchess county, for an alleged wrongful attachment. Plaintiff was surety on the bond of Edward McManus, treasurer of the village of Fishkill Landing, and indorser on several of his notes.

<p>Appeal from special term, Kings county.</p> <p>Action by Lawrence B. Talk against Ferdinand McKeize and others to foreclose a mechanic’s lien. The issues were referred to a referee, and from a judgment of foreclosure and sale, entered upon his report, defendant Mc-Keize appeals.</p>

Action by William Harrigan against the city of Brooklyn to recover for personal injuries alleged to have been caused by defendant’s negligence. From a judgment entered upon a verdict for plaintiff for $1,350, and from an order denying a new trial, defendant appeals. Beversed.

<p>For majority opinion, see 16 H. Y. Supp. 476.</p>

Jeremiah O. Keating was convicted of in the first sentenced to five years’ imprisonment in the state’s prison, and appeals.

Action by Amanda Paddock and Edward Paddock against Hannah Speidel and Martin Speidel for slander, which consisted of the utterances of Hannah Speidel respecting plaintiff Amanda Paddock. Erom an order sustaining a demurrer to the complaint plaintiffs appeal. Affirmed. The complaint did not allege that plaintiffs were husband and wife, or that such relation existed between defendants. The material part of the complaint is as follows: “Second.

Action by George W. Martin and another against James C. Matthews and another. From a judgment entered on the verdict of a jury defendants peal.

Action by Clarence R. Conger against Samuel D. Kinney to recover a strip of land which defendant held as part of a burial plot, claiming as heir at law of his father, to whom the plot had been conveyed in 1858 by a deed defectively executed by some of the grantors.

<p>Appeal from court of sessions, Monroe county.</p> <p>William H. Formosa was convicted of a violation of Laws 1890, c. 401, in allowing a rebate of premium on a policy of life insurance, and appeals.</p>

Action by John F. Parkes and others against Miles A. Stafford and others for the price of lumber. Judgment for plaintiffs, and defendants appeal.

Action by D. F. Cameron and Henry Huss, stockholders, etc., against the New York & Mt. Vernon Water Company, the Mt. Vernon Water Company, and the New York City Suburban Water Company, to recover certain shares of stock, and for an injunction to restrain the consolidation or combination of such companies. From an order denying a motion to vacate and set aside .a preliminary injunction restraining them from transferring stock or consolidating, defendants appeal. Reversed.

<p>Wills—Contest—Costs oe Stenoueapheb’s Minutes—Allowance to Contestants.</p> <p>Under Code Civil Proo. § 2558, declaring that on the contest of a will “the surrogate may order a copy of the stenographer’s minutes to be furnished to the contestants’ counsel, and charge the expense thereof to the estate, ” the application for such order must precede the furnishing of the minutes, to entitle contestants to an allowance for the expense incurred in procuring them.</p>

Action by Gustav A. Kirchner against the New Home Sewing-Machine Company to recover damages for a forcible entry on his premises, and conversion of his goods, by defendant. Code Civil Proc. N. Y. § 1669, provides that a person forcibly ejected from real property may recover treble damages therefor in an action against the wrong-doer. Prom a judgment for plaintiff, entered on the verdict of a jury, defendant appeals. Affirmed.

<p>Appeal from circuit court, Erie county.</p> <p>Action by Leonard A. Wooster against the Western New York & Pennsylvania Railroad Company for personal injuries. Verdict and judgment for plaintiff for $6,BOO. Defendant appeals.</p>

<p>Appeal from circuit court, Ontario county.</p> <p>Action by Martha Bennett, by guardian, against the New York Central & Hudson River Railroad Company for personal injuries. Verdict and judgment for plaintiff for $8,000. Defendant appeals.</p>

<p>1. Mandamus—Pleading.</p> <p>On an application for a peremptory writ of mandamus to compel a city treasurer to pay a warrant drawn on him, he denied by affidavit that be had any funds “applicable to pay the warrant. ” Held, that this was evasive, and raised no issue of fact.</p> <p>3. Schools and School-Distbiots—Erection op School-Houses.</p> <p>Laws 1887, c. 519, as amended by Laws 1890, c. 300, authorizing Long Island City to issue bonds for the erection of school-houses, etc., does not limit the power of the board of education or common council, under the provisions of the city charter authorizing them to appropriate moneys for the erection and furnishing of schoolhouses, (Laws 1871, c. 461, tit. 9, c. 2, p. 896,) to make an appropriation for such purpose, where the proceeds of such bonds are insufficient.</p> <p>•8. Same—School Funds.</p> <p>The charter of Long Island City provides that a sum equal to the estimate of the board of education, not exceeding three-fourths of 1 per cent, on the valuation of taxable property, shall be apportioned for school purposes, and paid by the city treasurer on drafts drawn by the board, (Laws 1871, c. 461, tit. 9, c. 2, § 9,) and also provides for the erection of new school-houses, the expense to be paid out of the revenues raised pursuant to the charter, (sections 13,14.) An apportionment to the full amount was made, and subsequently the common council appropriated 850,000 for work in certain school-houses, and the board drew warrants for such work against the appropriation. Held, that it was the duty of the city treasurer to pay such warrants out of moneys of the board in his hands until the aggregate of the drafts on the fund should reach the amount of such limitation.</p>

Action by William E. Earl, administrator of William E. Earl, Jr., against George W. Crouch, Jr., for the death of plaintiff’s intestate. Verdict and judgment for plaintiff. Defendant appeals. Affirmed. For decision on former appeal, see 10 N. Y. Supp. 882.

Action by John Seton against Heman Clark for use and occupation of certain lots of land owned by plaintiff, and for injuries to the lots resulting therefrom. Judgment for plaintiff. Defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Alexander S. Turner against William W. Weston and others for an accounting. Judgment for plaintiff was entered on the report of a referee, and defendants appeal.</p>

Action by Philomena Giraldo, an infant, by Frank Giraldo, her guardian, against the Coney Island & Brooklyn Railroad Company. The plaintiff escaped from the charge of her half-grown sister, and, unseen by the latter, slipped into the street; and while crossing a street-car track in front of her house, was struck and badly injured by a car which was being slowly pulled up a hill by the two regular horses and a tow-horse.

Proceedings before the trustees of the New York and Brooklyn bridge for the trial of relator, a police officer, on the charge of violating rule No. 22, (conduct unbecoming an officer,) in being intoxicated, arrested, and locked up in a station-house. Relator, being found guilty as charged, was dismissed, whereupon he procured a certiorari to review the proceedings. Certiorari dismissed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Sylvester C. Clark against John House, impleaded, etc., on a note. Judgment was entered for defendant on the report of a referee, and plaintiff appeals.</p>

Action by Lawrence E. McLouth against Mary E. Myers for the contract price of two cows. From a judgment affirming the judgment of a justice of the peace in favor of plaintiff, defendant appeals.

Action by the Rochester Lantern Company against the Stiles & Parker Press Company for breach of a contract made by defendant with one James H. Kelly, and by him assigned to plaintiff. Judgment for plaintiff, and defendant appeals.

<p>Appeal from court of oyer and terminer, Erie county.</p> <p>Indictment of Stephen F. Sherman for larceny. Defendant was convicted, and appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by David Wright against James Shanahan, superintendent of public works, for an injunction. The complaint was dismissed, and peals.</p>

Exceptions from circuit court, Westchester county. Action by Eliza J. White, administratrix, etc., against the New York Central & Hudson River Railroad Company to recover damages for the death of plaintiff’s intestate, alleged to have been caused by negligence of defendant. The court dismissed the complaint, and directed that plaintiff’s exceptions be heard in the first instance at the general term.

<p>New Trial—Newly-Discovered Evidence.</p> <p>In an action for personal injuries plaintiff testified that his hips were crushed, so that it was impossible for him to do manual work, and introduced evidence that his injuries were permanent. Defendant offered no testimony as to plaintiff’s physical condition, and there was a verdict for §8,000. Defendant moved for a new trial on affidavits of newly-discovered evidence to the effect that plaintiff, soon after the verdict, engaged in physical labor. Plaintiff filed counter-affidavits that, while he had done some work, his labor was attended by great pain and suffering, and that he was driven to do some work by the necessities of his family. The motion for a new trial was denied. Subsequently the motion was renewed on substantially the same affidavits, and on additional ones, stating that after the trial, and after the first motion, plaintiff performed physical feats for the amusement of spectators, and not to earn money for his family; that he assaulted a person, and in the contest showed great physical strength and ability; and that he had admitted that he had recovered his health and strength. Held, that the evidence presented on the second motion was not cumulative, and a new trial was properly granted.</p>

Action by Adelia F. Gedney against Orrin D. Kingsley for malpractice. From a judgment entered upon a verdict for defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by James L. Reynolds against Henry S. Craus upon a promissory note. From an order striking out his answer as frivolous, false, and sham, and directing a judgment for plaintiff, defendant appeals.

Action by Jennie Emerson against Frank H. Emerson for divorce on the-ground of adultery.

Certiorari procured by the trustees of St. Patrick’s Cathedral to review the .proceedings of James Davren and others, assessors of Long Island City, assessing for taxation relator’s lands used for cemetery purposes. Defendants appeal from an order directing that the taxes be stricken from the assessment roll.

The Bradley Salt Company brought an action in the supreme court of Erie county against Edward F. Keating for damages for breach of a contract to sell goods. Pending this action, the defendant brought an action in the court of common pleas of the city and county of New York against plaintiff for a balance alleged to be due on the purchase price of the goods sold, and judgment by default was entered therein.

<p>1. Mortgages—Foreclosure—Extinction oe Dower Rights.</p> <p>An owner of real estate executed two mortgages thereon at different times, in the first of which his wife did not join, but to the second she was a party. The second mortgage was first foreclosed, and the purchaser thereunder was made a party to an action to foreclose the first mortgage. Held, that the foreclosure of the second mortgage extinguished the contingent right of dower of the wife in the property, so that a person purchasing the property from one claiming under a deed executed on foreclosure of the first mortgage could not object to the title on the ground that the dower rights of the wife in the property had not been relinquished.</p> <p>2. Same—NOn-Record oe Referee’s Deed.</p> <p>The fact that a deed executed by a referee in the proceedings to foreclose the second mortgage was never recorded will not entitle such vendee to a rescission of his contract of purchase.</p>

<p>1. Intoxicating Liquors—Granting License—Exercise of Disoret'ion.</p> <p>The refusal of a license to sell intoxicating liquors in street-corner premises, on the ground that the other three corners of the street are occupied by saloons, is an exercise of discretion by the board of excise, and not an arbitrary rejection of the application.</p> <p>2. Same—Construction of Statute.</p> <p>Laws 1886, c. 496, provides that no license for the sale of intoxicating liquors ■ shall be granted unless the board of excise “shall be satisfied, upon examination, * * * that a license may properly be granted for such sale in the place proposed. ” Held to confer a right on the board to exercise a discretion in granting such licenses.</p>

<p>Appeal from trial term.</p> <p>Action by Eleanor F. Bishop against Thomas H. Hendrickson and another, executors, etc. From a judgment for plaintiff, defendants appeal.</p>

Action by George Y. Sims and another against Edward L. Bonner and •another. From an order denying a motion to compel plaintiffs to file security for costs, defendants appeal.

Action by George Y. Sims and another against Edward L. Bonner, George Conkling, and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed. For motion to compel security for costs, see 16 if. Y. Supp. 800.

<p>1. Divorce—Adultery—Sufficiency of Evidence.</p> <p>In an action against the wife for divorce on the ground of adultery, the evidence showed that defendant, having left her husband and gone to the country to spend the summer, invited one P., who was her lover before she married, to visit her; that she met him at the depot, kissed him, and took him to her hoarding-house; that while there she at times occupied the same hammock with him, and allowed him to hug her; that she frequented his room, and permitted him to frequent hers, during the day and night, on one occasion when she was partially undressed; that she went riding with him; that she allowed him to accompany her to the door of the water-closet; that they corresponded with each other, using endearing terms, and destroyed the letters and telegrams which passed between them. After one of her visits to P.’s room her hair-pins were found in his bed. In one of P.’s letters he stated that they were better “at covering their tracks” than a certain other woman. Defendant also furnished envelopes to P., addressed to her under an assumed name, which he used in writing to her. He introduced her on a number of occasions as his cousin, and once as his wife. One witness testified to having seen them in bed together. Held, that the evidence warranted a finding that defendant was guilty of adultery.</p> <p>3. Same.</p> <p>In such action defendant charged that plaintiff was afflicted with a venereal disease, and communicated it to her; but the charge was denied by plaintiff, who testified that he had never had such disease, and never committed adultery, though he had had blood poisoning. A doctor who had examined plaintiff’s person, and diagnosed his case, testified that he was unwilling to swear that plaintiff had ever had venereal disease. Held, that the evidence did not warrant a finding that plaintiff had committed adultery.</p> <p>3. Same—Condonation.</p> <p>A wife, in a suit by her husband for divorce, cannot complain that plaintiff was afflicted with a venereal disease, and communicated it to her, if she voluntarily cohabited with him after believing the fact, since she thereby condoned the offense.</p>

Summary proceedings by William F. Wright to remove I. H., Radford from certain premises. From the order of the municipal court awarding possession to plaintiff, defendant appeals.

. Action by Barbara Startz, administratrix, against the Pennsylvania & New York Canal & Railroad Company, and the New York, Lake Erie & Western Railroad Company, for the death of Joseph Startz, alleged to have been caused by defendants’ negligence. From a judgment for plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, defendants appeal.

Action by James E. Dwyer, by guardian, against Peter Hiekler and others for personal injuries. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial made ón the minutes of the court, defendants appeal.

Action by John Foshay and others against Frederick Robinson, contractor, William A. Boyd, owner, and Young and others, subcontractors, to enforce a mechanic’s lien. Boyd appeals from a judgment entered upon the report of a referee in favor of Young and others. Affirmed.

Action by Henry Bones against Aloys Steffens for enticing away and debauching plaintiff’s wife. Plaintiff’s wife was, before her marriage, the housekeeper of defendant, a Roman Catholic priest, and she thereafter, with plaintiff’s consent, remained in his service until he could provide a servant to take her place. She lived part of the time with her husband at home, and partly with him at defendant’s residence, and while at the latter place she slept apart from her husband.

Action by Lewis E. Stegman against Henry S. Hollingsworth and Francis S. Hodgekinson, on an under-sheriff’s official bond. Defendant Hollingsworth answered the complaint, setting up new matter, to which plaintiff replied, denying “each and every allegation of said defendant’s answer which sets up or alleges a counter-claim to-the claim of plaintiff. ” Defendant Hollingsworth appeals from an order denying a motion made by him to strike out the reply. Affirmed.

Exceptions from circuit court, Monroe county, Action by Jacob Pauley, administrator of Frank A. Pauley, deceased, against the Steam-Gauge & Lantern Company, to recover damages for the death of deceased, alleged to have been caused by defendant’s negligence. A nonsuit was granted, and plaintiff appeals.

Action by the Willson & Adams Company of Mt. Vernon, H. Y., against Henry A. Schorpp, Lucia S. Schorpp, and others to foreclose a mechanic’s lien. Judgment for foreclosure and sale was rendered, and a referee was appointed to sell. The referee’s report of sale showed a surplus remaining after payment of the judgment and costs.

Action by Julia Morris against John Morris and others to set aside a conveyance of realty as in fraud of .creditors. From a judgment for plaintiff, defendants appeal.

Appeals from special term, Orange county. Proceedings by the Phcenix Iron Company and the Chester Rolling-Mills to enforce demands against the vessels Hopatcong and Musconetcong, their tackle, etc., under Laws 1862, c. 482, providing for the collection of demands against ships and vessels. The claimants appeal from orders granting allowances, in addition to costs, to the owner of the vessels, the prevailing party. The appeals were heard together. Affirmed.

Action by John VV. Nolan against the New York Central & Hudson River Railroad Company, for personal injuries. . Verdict and judgment for plaintiff for $5,000, and defendant appeals.

Action brought in the city court of Yonkers by the Thurber-Whyland Company against Frank Klittner to recover for goods sold and delivered. Defendant appeals from an order of the county court affirming an order of the city court allowing an amendment of summons after judgment, arid denying a motion to set aside such judgment as irregular. Affirmed.

Action by Isabella H. Mitchell to restrain the Village of White Plains from laying sewer-pipes through a strip of land claimed to be the property of plaintiff. From a judgment for defendant rendered by the court on a trial without a jury, plaintiff appeals.

<p>Appeal from Monroe county court.</p> <p>James ííyan brought an action for a tort, in a justice’s court against Jacob Parr, and recovered judgment. An‘appeal was taken by defendant on questions of law only to the county court, where the judgment was affirmed. Judgment was then entered in the county court for the amount of the judgment rendered by the justice, together with the costs of the appeal, and was docketed as a county court judgment. Execution having been issued thereon, and returned, “PTo. property found,” an execution against the person of defendant was issued, and he was arrested and confined in jail. Both of said executions were issued by plaintiff’s attorney, and not by the clerk of the county court. After 30 days defendant demanded the'sheriff to discharge him; filing with him, in support of his demand, an affidavit that he had a family within the state for which he provided, and that he had been held under the execution for 30 days. Upon the sheriff's refusal to discharge him defendant made a motion in the county court for his discharge. The motion was denied, and defendant appeals.</p>

<p>Appeal from Kings county court.</p> <p>Action by Ada Aller against Annie E. O’Reilley. Erom a judgment of the county court reversing a judgment of a justice defendant appeals.</p>

Action by Thomas H. Thorn and Oscar Thorn against James Sutherland and Herman T. Winter. Erom a judgment entered on a verdict for plaintiffs, and from an order denying a motion for a new trial, defendants appeal. Affirmed. For prior reports, see 4 2T. Y. Supp. 694; 25 FT. E. Rep. 362.

At chambers. Certiorari by Newbold T. Lawrence to review an assessment of the property of petitioner for taxation made by the tax commissioners of New York city.

Action by Joel Wheeler and Albert J. Wheeler against Clarison Sweet and Levi on a bond. From a judgment against plaintiffs, and an order denying them a new trial, they appeal.

, Habeas corpus by the people ea; rel. James Burns and another against Jacob Bloedel to test the regularity of adoption proceedings. Defendant’s demurrer was sustained, and relators appeal.

Action by Louis M. Kimball against the Farmers’ & Mechanics’ Bank of Buffalo to recover the freight earned by the schooner George D. Russell in a voyage from Milwaukee to Buffalo. Defendant had judgment, and plaintiff appeals. Reversed. For a statement of facts, see 11 H. Y. Supp. 730.

Exceptions from trial term. Action by Laura Wooden against the Western, New York & Pennsylvania Railroad Company for the death of plaintiff’s husband while employed by defendant. Plaintiff was nonsuited, and moves for a new trial on exceptions, which were ordered to be heard at general term in the first instance. Hew trial granted. For decision on demurrer, see 12 H. Y. Supp. 908. The plaintiff’s husband was killed while an employe on the defendant’s road.

<p>Action by William B. Duncan, Jr., against the New York Mutual Insurance Company on a policy of marine insurance. Judgment for plaintiff.</p>

<p>Appeal from trial term.</p> <p>Actions by Louisa Robertson against the New Hampshire Insurance Company of Manchester, and the Insurance Company of Pennsylvania, respectively, on a policy of insurance. Plaintiff had judgment, and defendants peal.</p>

<p>Appeal from trial term.</p> <p>Action by Gerald R. Brown and John N. Golding against Abram Wakeman :for rent. Judgment for defendant. Plaintiffs appeal.</p>

<p>Contracts—Failure or Consideration—Counter-Claim.</p> <p>Plaintiff agreed to pay a debt of $6,000, due from Ms assignor to defendant, by transferring a house to the latter for $81,000, subject to a mortgage for $15,000. Subsequently, in consideration of the former agreement and the transfer of the house, defendant agreed to pay plaintiff $1,000 if defendant should sell the house for $31,000 within three months, and the premises were conveyed the same day, the expressed consideration being $31,000, subject to $16,000 mortgage. Within three months defendant sold the house for $31,000, including carpets worth ^140. Thereafter plaintiff brought an action to recover the $1,000 under the latter agreement, alleging that but $5,000 was due defendant when the first agreement was made, but that by fraud plaintiff was induced to insert $6,000 therein. Defendant denied the fraud, and set up a counter-claim for $1,000, and one for $140, the value of the carpets. Held, that first agreement Was not canceled by the second, but was incorporated in and became part of it; that failure to perform the first agreement was a failure of the expressed" consideration of the second; and that any damages accruing to the promisor in the latter agreement might be recovered as . a counter-claim in an action by the promisee.</p>

Action by Frank V. Gillespie, an infant, etc., against the Coney Island & Brooklyn Eailroad Company to recover dámages for injuries sustained in a collision between two of defendant’s electric cars, in one of which defendant was riding. The negligence of defendant was admitted, and the only question in issue was as to the quantum of damages. Plaintiff was permitted to testify as to the speed at which the car was running at the time of the accident.

<p>Equity—Reformation of Contracts—Mutual Mistake.</p> <p>Forty-eight notes and a chattel mortgage to secure the same contained no provision for interest, but the payee claimed that by the agreement under which they were given interest was to be paid. The maker admitted a conversation as to interest, but asserted that it was after execution and delivery of the notes and mortgage. The maker paid 19 of the notes with interest, and four others without interest, which were indorsed with the amount received on account and retained by the payee, with the consent of the maker; but thereafter the maker refused to pay further interest, on the ground that none was provided for in the notes or mortgage". Held, that on these facts, and proof of circumstances showing that the omission to insert the words “with interest” in the notes and mortgage was by mutual mistake, they should be reformed by making them payable with interest.</p>

<p>Appeal from seventh district court.</p> <p>Action by William Klingenberg against Frederick Werner, as trustee of the Journeyman Tailors’ Union. Judgment for plaintiff. Defendant appeals.</p>

Summary proceedings for recovery of possession of demised premises by James Cherry, landlord, against John Foley, tenant. From a judgment for plaintiff, defendant appeals.

<p>Principal and Agent—Ratification—Evidence.</p> <p>In an action on a contract for advertising, made with defendant’s agent, whose authority was denied by defendant, it appeared that, while the contract was being performed, defendant received a statement of the amount due thereon up to date without notifying plaintiff to discontinue the advertisement. Held, that judgment was properly rendered against defendant for insertions of the advertisement made after the statement was rendered. *</p>

Action by Hannah F. Hart, assignee of Henry I. Hart, against James B. Byer and another, to recover compensation for services rendered to defendants by plaintiff’s assignor as' salesman. From a judgment of a referee dismissing the complaint plaintiff appeals.

Action by Horace M. Williams and Frederick D. Potter against the Edison Electric Illuminating Company to foreclose a mechanic’s lien. Defendant moved to interplead or add the Samuel L. Moore & Sons Company as a party defendant. Motion granted.

Appeals from fifth district court. Actions by Barnet Goldstein against Mary H. White and others, by Barnet Gurewitz against the same defendants, and by Hyman Ostrowsky against the same defendants, for wages. The actions were tried together, and separate-judgments rendered for each plaintiff, from each of which defendants appeal.

Action by William H. Schmohl against Angelo Adam and Giuseppe Fusco brought in the city court on an alleged partnership liability of defendants. Defendant Fusco appeared and answered. Defendant Adam demurred to the complaint for insufficiency in substance, and, the demurrer being overruled, judgment was entered against him.

Proceedings by George L. Kingsland and another against John Hall to recover the possession of leased premises for non-payment of rent. There was a verdict for defendant, and from an order entered thereon dismissing the proceedings, plaintiffs appeal.

<p>Appeal from fifth district court.</p> <p>Action by Frank Scherer against Louis C. Hopkins and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from district court.</p> <p>Action by William S. Copper against Jacob Fretnoransky for rent. From a judgment for defendant entered on the verdict of a jury plaintiff appeals.</p>

Summary proceedings for the recovery of real property by Robert W. Drummond, landlord, against Frank L. Fisher, tenant, and Ezra Haskell and Peter T. Radiker and others, under-tenants. Judgment for the landlord. The defendants Haskell & Radiker appeal.

<p>Principad and Agent—Powers of Agent.</p> <p>In an action for advertising defendants’ business in plaintiff’s paper by order of defendants’ agent, it appeared that the latter was agent only for selling beer, collecting bills, and representing defendants before the board of excise. One defendant, the surviving partner, testified that the agent had no authority to contract, bills for him or the firm, and that no paper containing such advertisement had been received by him, and no bill for such advertisement had been presented. Held, that these facts were insufficient to warrant a finding that the agent had authority to contract bills for such advertising.</p>

<p>Appeal from eleventh district court.</p> <p>Action by William A. May against John H. Meierdierck, for work, labor, and services. Judgment for plaintiff. Defendant appeals.</p>

Action by Augustin Walsh against Michael Curley. Defendant pleaded a counter-claim, which was allowed by the court, and judgment entered for plainlitf for the balance, from which plaintiff appeals.

Action by the Harlem River Bank against Carrie Meyer and Albert A. Meyer, on a promissory note. Defendant Carrie Meyer appeals from a judgment of the general term of the city court affirming a judgment of the trial term in favor of plaintiff. Reversed. The action was upon a promissory note, as follows, the maker and indorser being husband and wife: “$1,250.

Blair, deceased. The probate was opposed by Sarah Catherine Blair. On his own motion, the surrogate transferred the proceedings to the court of common, pleas, where the jury found against the validity of the will. Pending appeal, an application was made to the surrogate’s court by the contestant for the appointment of a temporary administrator, which application was denied, and an appeal taken to the general term, whose opinion therein is reported in, 15 1ST. Y. Supp. 212.

Trial of an indictment against Samuel W. Lewis for larceny in obtaining money under false pretenses. On trial, the jury found a verdict of guilty of grand larceny in the first decree. From the judgment of conviction entered upon the verdict, defendant appeals.

Action by Sarah E. Mellen against William C. Banning, executor of Abner Mellen, deceased, Gordon McKay Mellen, Stanley Mellen, and Evelyn Mellen, infant children of Abner Mellen, Jr., deceased, and others, for the construction of the will of Abner Mellen, deceased, and to remove a cloud on the title of land. From an order denying a motion to strike out the names of the three infant defendants the executor and other adult defendants appeal. Affirmed.

Action by Emily O. Butler and others against Andrew H. Green and others, executors and trustees under the will of William B. Ogden, deceased, to have declared void certain provisions of said will, and to compel distribution.

' Action upon a promissory note by Frank H. Graf, as indorsee, against Joel B. Smith, as maker thereof. On a trial by jury, a verdict was rendered for defendant, and a motion by plaintiff for a new trial was denied. From the judgment for defendant entered on the verdict, and from the order denying his motion for a new trial, plaintiff appeals.

Petition by the board of street opening and improvement of the city of New York for the appointment of commissioners of estimate and assessment in proceedings to condemn St. John’s Cemetery, in the Hintli ward of the city of New York, for the purpose of a public park. Erom an order appointing such commissioners, the rector, church-wardens, and vestrymen of Trinity Ohnrcli, owner in fe^of the property, appeal.

Action by David Wolfe Bruce and others, as executors of the last will and testament of Catherine L. Wolfe, against David W. Bruce and others, for a settlement of the accounts of plaintiffs as executors. For so much of the judgment therein as awarded to plaintiffs compensation for services in dividing the real estate of their testatrix defendants appeal.

Action of replevin by Gaetano Ainis against Marshall Ayres, as assignee for the benefit of creditors of Sawyer, Wallace & Company. From a judgment for plaintiff, entered upon the decision of the justice on trial by the court without a jury, defendants appeal.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Ida L. Phillips against the Northern Railroad of New Jersey for personal injuries received by being thrown from the platform of defendant’s railroad car by the starting of the train while plaintiff was boarding it. Defendant’s line was leased and operated by the Erie Railway Company. Judgment for defendant. Plaintiff appeals.</p>

Action by Lucy M. Bice against Henry Thompson, John S. Bice, Charles Murray Bice, and others for admeasurement of dower. From an interlocutory judgment that plaintiff’s dower be admeasured by a referee thereby appointed, defendant Thompson appeals.

Action by Samuel Wiener against the Yew York Elevated Eailroad Company and the Manhattan Bail way Company to recover damages caused by the erection and maintenance of defendants’ elevated railroad in the street in front of plaintiff’s premises, and for an injunction. Defendants from a judgment entered upon a report of a referee in favor of plaintiff.

Action by Carlos D. Siegert, Alfredo C. Siegert, and Luis B: 0. Siegert against Cornelius W. Abbott and another to restrain the infringement of a trade-mark. Cornelius W. Abbott was not served with summons, and did not appear. Judgment was rendered for plaintiffs, enjoining the defendants as copartners. Defendant Cornelius W. Abbott appeals from an- order denying a motion to vacate the judgment as against him.

<p>Appeal from special term.</p> <p>Action of replevin by William Downey against Henry MacAleenan. Defendant appeals from an order requiring him to allow plaintiff to inspect the goods in controversy, in his possession.</p>

Case submitted on agreed statement. Action by Jennie E. Wood, administratrix with the will annexed of Samuel Wood, deceased, against Robert M. Nesbitt. The cause was submitted on an agreed statement. Judgment for plaintiff.

Action by Terence McGuire against the Broadway & Seventh Avenue Railroad Company to recover for an alleged false imprisonment. Plaintiff appeals from a Judgment entered upon a verdict for defendant, and from an order denying a new trial.

Action by James L. Hart against Benjamin Richardson, as trustee of the Great Animas Gold & Silver Mining Company, to enforce the liability imposed upon him by law for failure to file an annual report for work, labor,, and services rendered such company. Judgment was entered against defendant by default. Pending an appeal from an order opening the default, Richardson died.

Action by John S. Ellis, as trustee of and for the holders of certain bonds issued by the Lyceum, against the Lyceum and others, to foreclose a mortgage. Judgment of foreclosure and sale. Defendant appeals.

<p>".1. Larceny— Sufficiency of Evidence.</p> <p>On a trial for larceny from an hotel safe of a box containing money and securities, it appeared that defendant was a hall-boy in the hotel, whose position when awaiting orders was on a settee in the hotel office, about 13 feet from the safe, and that the owner of the box was a regular guest of the hotel, and in the habit of depositing the box in the safe for security. Two witnesses testified that about two weeks prior to the larceny defendant asserted to them his ability to take the box from the safe, and solicited the help of one to secrete it, and, on his refusal, declared his intention to take it, and secrete its contents up-stairs under the carpet. Defendant admitted such conversation, but denied taking the box, or any intention to take it. It appeared that, shortly before midnight, the clerk went down-stairs to the washroom, leaving defendant seated on the settee, and that he returned in about five minutes, and found the box was gone, and that defendant at such time was absent, and did not return for a half hour.. Defendant did not explain such absence. Part of the contents of the box was found under the stair-carpet. Held, that the evidence was sufficient to support a conviction.</p> <p>-_2. Same—Instructions.</p> <p>A charge on the rule of law as to the omission of defendant in a criminal case to produce an exculpatory witness is rendered free from objection by a charge, at defendant’s request, that the same rule applies to the prosecution.</p>

<p>Appeal from trial term.</p> <p>Action by Blanche Weaver against Marc Klaw and Abraham L. Erlanger. From a judgment for plaintiff, defendants appeal.</p>

Action by the Canton Surgical & Dental Company against William Webb to recover the possession of a chair. From a judgment for plaintiff rendered by the court on a trial without a jury defendant appeals.

Action by Lehman K. Strouse and others against Horace W. Love for goods sold and delivered. From a judgment for plaintiffs rendered by the court on a trial without a jury defendant appeals.

Summary proceedings by Sarah A. Barnum and another against John FitzPatrick to recover possession of demised premises known as “No. 320 Stanton Street,” in the city of New York, for non-payment of rent. From a final order dismissing the petition, plaintiffs appeal.

Action by John Riggs against Margaret Shannon and Thomas Shannon to foreclose a mechanic’s lien. Plaintiff moves the court for a jury trial as to-certain issues of fact.

<p>Appeal—Dismissal—Neolect to Prosecute.</p> <p>Four months after service of notice of appeal, appellant, who had failed to make a case, and had paid the judgment appealed from, gave notice of withdrawal of the appeal, without tendering costs. Held, that the appeal should be dismissed, on respondent’s motion, for lack of diligence on the part of appellant, although he asked for further time to prepare appeal papers.</p>

Summary proceeding by Adam Folz against Julius Shalow, to remove defendant from the premises of plaintiff on the ground of his holding over .after the expiration of his term as plaintiff’s tenant. Judgment for plaintiff. .Defendant appeals.

<p>.Liability of Husband fob Neoessabies fob Wife—Counsel Fees in Suit fob Divokcb.</p> <p>Professional services rendered to a wife by an attorney, relative to a contemplated suit by her for a separation from her husband, are necessaries, for the reasonable value of which the husband is liable, though the parties became reconciled before the service of papers instituting the suit.</p>

Action by Anna B. Anderson against the Supreme Council of the Order of ■Chosen Friends on a certificate of membership, for a benefit accruing on the ■death of plaintiff’s husband.

Action by Ellen Cavanagh, as executrix, etc., of William T. McKeon, against the New York Elevated Railroad Company and the Manhattan Railway Company, to recover damages caused by the erection and maintenance of defendants’ road in the street abutting plaintiff’s property, and for an injunction.

<p>Appeal from special term, Queens county.</p> <p>Action by William Johnston against Mary E. Theall.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Edward Leach against the Brooklyn, Bushwick & Queens County Railroad Company to recover for personal injuries caused by alleged negligence of defendant.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Burton E. Kipp against Charles B. Scott and Eugene Pearson to recover for services rendered as an accountant.</p>

Petition by William Townsend to revoke the probate of the last will and •testament of William Townsend, deceased. The petition was denied, and .petitioner appeals.

<p>Appeal from circuit court, Westchester county.</p> <p>Action by Ambrose Lee against Andrew J. Wightman.</p>

Proceedings for the appraisal of damages from the construction of the new aqueduct for the city of New York. The Academy of the Sacred Heart appeals from an order confirming the report of the commissioners of appraisal.

<p>Appeal from Essex county court.</p> <p>Action by James Mussen against Jehial B. White.</p>

<p>Action by Lena Clements against Julius Knoesel and others. Plaintiff appeals from order denying her motion to resettle order.</p>

<p>Motion for reargument. For former opinión, see 13 N. Y. Supp. 899.</p>

<p>Appeal from ninth district court.</p> <p>Action by Moses P. Crasto and others against James Carlew to recover brokers’ commissions upon the sale of a house.</p>

<p>Application for the remission of a forfeited recognizance, and to vacate judgment entered therein against John P. Kirwan and another.</p>

<p>Motion for leave to appeal to the court of appeals. For former reports, see 11 N. Y. Supp. 784; 14 N. Y. Supp. 925.</p>

<p>Appeal from eleventh district court.</p> <p>Action by John W. Dunne against Annie Young upon a written contract.</p>

<p>Appeal from trial term.</p> <p>Action by the United States National Bank against the Homestead Bank.</p>