Volume 160 — New York Appellate Division Reports

Appeal by the defendant, Oompagnie Generate Transatlantique, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of May, 1912, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the 15th day of May, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of October, 1913, setting aside the report of commissioners of appraisal in condemnation proceedings and appointing new commissioners.

<p>Reference — right to submit requests to find after entry of judgment.</p> <p>After a referee to hear and determine has made, signed and delivered his report and judgment has been entered thereon, the defendants are not entitled to submit requests to find, where it does not appear that their rights may not be fully protected by exceptions.</p>

Appeal by the defendant, Westinghouse Electric and Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of May, 1912, upon the 'verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 5th day of June, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Eobert P. Dugan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Eichmond on the 2 Ah day of November, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the Eichmond Trial Term. The action was one at common law for negligence.

<p>Appeal by the defendant, Morse Dry Dock and Repair Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of March, 1913, upon the verdict of a jury for $2,800, and also from an order denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 27th day of September, 1912, denying defendant’s motion to require plaintiff to give security for costs. .</p>

Appeal by the plaintiff, George S. Barnett, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of .New York on the 11th day of March, 1913, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered upon the verdict of a jury for $400, and giving judgment absolute for the defendant.

Appeal by the plaintiff, Park & Tilford, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1913, granting defendant’s motion to compel plaintiff to separately state and number his causes of action and also striking out certain portions of the complaint as redundant and irrelevant.

<p>Civil service — Hew York city — position of fire prevention inspector — establishment of. separate eligible lists for men and women — mandamus.</p> <p>The municipal civil service commission of the city of New York may, in its discretion, after an examination for the position of fire prevention inspector, establish separate eligible lists for men and women, and a writ of mandamus will not be granted to compel the establishment of a single list containing the names of both men and women.</p>

<p>Appeal by Monroe L. Simon and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of November, 1912, overruling objections to the confirmation of the report of commissioners of estimate herein and confirming the said report.</p>

<p>Tax — transfer tax — appeal from order of surrogate as taxing officer.</p> <p>Where, after an appeal from a surrogate’s decree in a transfer tax proceeding, the matter is remitted to the appraiser and the surrogate makes the usual order fixing the cash value of the property transferred and the amount of the taxes, no appeal lies from his order as a taxing officer.</p>

Appeal by the plaintiff, Edward Mattos, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 5th day of May, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1913, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edward J. McLaughlin, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of November, 1913, denying a motion for a retaxation of costs.

Appeal by the plaintiff, Ig. Roth, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of October, 1913, denying plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiff, George C. Van Tuyl, Jr., as Superintendent of Banks, etc., from so much of an'interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 8th day of May, 1913, as overrules plaintiff’s demurrers to the affirmative defense contained in the answer of the defendant Edward N. Jesup to the separate defense and counterclaim contained in the amended answer of the…

<p>Mortgage — foreclosure — personal claim for deficiency—counterclaim alleging defect in title.</p> <p>In a suit for the foreclosure of a mortgage in which a deficiency judgment is asked the court should not disregard a counterclaim by the defendant for damages based upon the ground that the title to the property at the time of the conveyance by the plaintiff to her was in the city of New York, and in the State, and a judgment for the plaintiff on the pleadings should be reversed.</p>

Appeal by the plaintiff, Cecelia Schaeffer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of May, 1913, dismissing the complaint upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the plaintiff, Stephen Burkard, fiom an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of July, 1913, denying a motion for the confirmation of the report of a referee.

<p>Appeal by the defendant, Mary E. Blair, from a judgment of the Supreme Court in favor of - the plaintiff, entered in the office of the clerk of the county of Madison on the 24th day of February, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the llth day of March, 1913, denying appellant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Buick Motor Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 10th day of March, 1913, upon the verdict of a jury for $5,025, and also from an order entered in said clerk’s office on the 6th day of March, 1913, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the Town of Easton from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Saratoga on the 23d day of September, 1913, directing the town of Easton to cause its superintendent of highways to join in rebuilding the bridge mentioned in the order.</p>

<p>Real property—proceedings by general guardian to sell infant’s real estate — failure to give bond—title of purchaser — when real estate purchased by general guardian with infant’s personal estate remains personalty.</p> <p>A general guardian who from the personal estate of his wards, purchased real estate and caused the same to be conveyed to him as such guardian, was on an application to the Supreme Court granted permission to sell the same in the manner provided for the sale of infants’ real estate and the proceedings were regular in all respects, except that the order appointing the general guardian a special guardian for the purpose of the proceeding dispensed with the execution of a bond because he was already under sufficient bonds. The purchaser received a deed executed by the special guardian and also a deed executed by the general guardian as such, and individually in which his wife joined.</p> <p>Held, that the failure to give the bond did not render the title of the purchaser under such proceedings defective, because the infants, by the deed to the general guardian, acquired no legal title, but as between them and the general guardian the property still remained personal property.</p>

Appeal by the plaintiff, Denis Fitzgibbon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 4th day of November, 1912, dismissing the complaint upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of November, 1912, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, American Surety Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered -in the office of the clerk of the county of Broome on the 7th day of May, 1913, upon the decision of the court, both sides having moved for the direction pf a verdict at the close of the case.</p>

Appeal by the plaintiff, John P. Failing, from an order of the County Court of Albany county, entered in the office of the clerk of said county on the 24th day of January, 1913, reversing a judgment of the City Court of Albany in plaintiff’s favor for $509, and also from a judgment of the said County Court entered in the office of the clerk of said court on the 28th day day of January, 1913, pursuant to said order.

<p>Insurance—action on fire insurance policy—defense — violation of sprinkler guaranty clause—fraud in making proofs of loss — regularity of appraisal and award — evidence.</p> <p>In an action upon a policy of fire insurance the defendant admitted the delivery of the policy and the burning of the property, but claimed that the fire was caused by the fraudulent acts of the plaintiff, who also violated a sprinkler guaranty clause in the policy; that there was fraud and misrepresentations on the part of the plaintiff in making up the proofs of loss and that there was an appraisal and award fixing the amount of loss. The plaintiff contended that the appraisal and award was irregular and secured by fraud and misrepresentations on the part of the defendant.</p> <p>Evidence examined, and held, that a judgment for the plaintiff for the full amount claimed should be affirmed.</p>

<p>Appeal by Louis Lowenstein and another from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1912, as confirms the report of the commissioners of estimate and assessment herein as to the awards for damage parcels Nos. 12A and 19A.</p> <p>Appeal by The City of New York from so much of said order as confirms the report of commissioners of estimate and assessment herein, as to the awards made for damage parcels Nos. 14-18, inclusive.</p>

Appeal by Metropolitan Trust Company of the City of New York from a decree of the Surrogate’s Court of the county of ■ New York, entered in the office of said surrogate on the 13th day of August, 1913, revoking letters of administration heretofore issued to the Metropolitan Trust Company of the City of New York upon the estate of Alexander McDonald, deceased, and ordering said Metropolitan Trust Company to file an account of its proceedings as administrator.

Appeal by Archibald E. Watson, as corporation counsel, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of July, 1913, granting a peremptory writ of mandamus. ■

<p>Hew York city — Court of Special Sessions—jurisdiction to try charge of misdemeanor against corporation for violation of Sanitary Code.</p> <p>Chapter 659 of the Laws of 1910 regulating procedure before a city magistrate upon a complaint for a violation of the Sanitary Code and giving the Court of Special Sessions, in the first instance, “ exclusive jurisdiction to hear and determine all charges of misdemeanor committed within the city of New York, except charges of libel,” supersedes chapter 9 of title 12 of part 4 of the Code of Criminal Procedure providing for the investigation of criminal charges against corporations, and, hence, the Court of Special Sessions has exclusive jurisdiction to try a charge against a corporation for a misdemeanor in violating the Sanitary Code.</p>

Appeal by the defendant, Samuel Shaft, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 10th day of June, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the claimant, John J. Jackson, from a judgment of the Board of Claims, entered in the office of the clerk of the said Board on the 26th day of June, 1913, awarding to the claimant the sum of $13,086.34.

Appeal by the defendants, Town of Saratoga and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 23d day of May, 1913, upon the verdict of a jury for $1,500, and also from two orders entered in said clerk’s office on the 9 th and 18th days of June, 1913, respectively, denyr ing the separate motions of the two defendants for new trials, which motions were made upon the minutes.

Appeal by the plaintiff, James McLoughlin, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 2d day of April, 1913, dismissing the complaint upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, International Salt Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 9th day of May, 1918, upon the verdict of a jury for $2,700, and also from an order entered in said clerk’s office on the 4th day of April, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Jeremiah R. Smith, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Madison on the 21st day of July, 1913, upon the decision of the court rendered after a trial at the Madison Special Term sustaining a demurrer to the complaint.

Appeal by the defendant, the Home Savings Bank of the City of Albany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 25th day of April, 1913, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 10th day of May, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Merritt D. Walcott, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 18th day of April, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of May, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs in each of the above-entitled actions from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 5th day of July, 1913, denying the plaintiffs’ motion for judgment on the pleadings, and adjudging that the complaints, as amended, do not state facts sufficient to constitute a cause of action, and, further, granting the motion of the defendants in both actions for judgment on…

Certiorari issued out of the Supreme Court and attested on the 26th day of April, 1913, directed to the Public Service Commission of the State of New York for the Second District and the members thereof, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in the making of an order affecting relator’s rates made on the complaint of the defendant Postal Telegraph-Cable Company.

Appeal by the plaintiff, Ann E. Bapuzzi, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Tompkins on the 14th day of May, 1913, and refiled therein on the 20th day of' May, 1913, upon a nonsuit granted by the court at the close of the case upon the trial before the court and a jury at the Tompkins Trial Term, and also from an order made at said Trial Term on the 26 th day of March, 1913, denying plaintiff’s…

<p>Villages — highways — establishment of grade — change of grade — damages — waiver by voting in favor of improvement.</p> <p>A grade of a street may become established by usage, acquiescence and recognition, without any formal ordinance on the part of the municipality.</p> <p>The depression of a street, from two to three feet, constitutes a change of grade within the meaning of section 159 of the Village Law, so as to entitle property owners injuriously affected thereby to damages. An abutting owner by voting at a special village election in favor of a proposition to issue bonds for the grading of a street, does not waive his right to damages.</p>

Appeal by the defendants, Henry Brody and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19th day of October, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of October, 1912, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thornton Brothers Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of December, 1912, upon the decision of the court after a trial at the New York Special Term, and also, as stated in the notice of appeal, from the decision upon which said judgment was entered.

Appeal by the plaintiff, Henry P. Townsley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of November, 1912, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th day of November, 1912, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, James E. Hardenbergh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of January, 1910, upon the verdict of a jury for $1,750, and also from an order entered in said clerk’s office on the 28th day of January, 1910, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of April, 1913, upon the decision of the court, after a trial at the New York Trial Term, before the court without a jury.

Appeal by the defendant, Richard R. Mandelbaum, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of August, 1913, denying defendant’s motion for judgment on the pleadings, and sustaining a demurrer to a separate defense set up in the answer.

Appeal by the defendant, Atlantic, Gulf and Pacific Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Washington on the 5th day of May, 1913, upon the decision of the court after a trial at the Washington Trial Term.

<p>Appeal by the defendant, Raymond M. Booth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 23d day of May, 1913, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 19th day of June, 1913, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, City of Binghamton and others, from an order of a justice of the Supreme Court, entered in the office of the clerk of the county of Broome on the 9th day of October, 1913, granting a temporary injunction restraining the defendants pendente lite from selling the bonds, amounting to $158,200, of the city of Binghamton, which it is proposed to issue for the purpose of establishing a municipal electric lighting plant, and from entering into any contract…

Appeal by the plaintiffs, Frank W. Turna and others, as trustees, from an interlocutory judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk of the .county of Suffolk on the 23d day of July, 1912, upon the decision of the court after a trial at the Suffolk Special Term, and also from an order entered in said clerk’s office on the 1st day of August, 1913, denying plaintiffs’ motion for leave to serve an amended complaint.

Appeal by the defendant, Jennie B. Beach, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Greene on the 17th day of February, 1913, denying the defendant’s motion for an order directing the plaintiff to pay the defendant counsel fee and alimony, and also from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Greene on the 9th day of…

Appeal by the defendant, Charles H. Kinley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 3d day of February, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 6th day of May, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, David A. Schulte and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New Y ork on the 31st day of March, 1913, upon the decision of the court after a trial at the New York Trial Term, a jury having-been waived. Judgment affirmed, with costs, on the opinion of Page, J., at Trial Term.

Appeal by the defendant, Rebecca Cohen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1913, denying the defendant’s motion for an order framing issues for a jury trial in an action for divorce.

<p>Appeal by the plaintiff, William Wallace Young, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of July, 1913 granting defendants’ motion to vacate the retaxation of costs herein and disallowing all costs and disbursements to plaintiff; also a notice of motion by the respondents to dismiss the appeal.</p>

Certiorari issued out of the Supreme Court, and attested on the 24th day of July, 1913, directed to Rhinelander Waldo, as police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in dismissing the relator from the police department.

Appeal by the defendant, Isidor Beiley, from an order of the Supreme Court, made at the New York Special Term on the 28th day of November; 1913, and entered in the office of the clerk of the county of New York, granting plaintiff’s motion for a discovery and inspection of defendant’s books.

Appeal by the plaintiff, Francis J. O’Malley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of April, 1912, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 26th day of April, 1912, denying plaintiff’s motion for a new trial made upon the minutes. The action is to recover arrears of salary alleged to be due.

<p>Appeal — waiver of jury trial—failure to except to decision of trial court —action to recover for medical services rendered to illegitimate children—proof not justifying recovery—effect of failure to produce documents on notice.</p> <p>Where a jury trial is waived in an action at common law the Appellate Division, upon an appeal from a judgment entered upon a decision of the court may review the facts, although no exception was taken to the decision of the court below.</p> <p>Action against an estate brought by a physician for medical services alleged to have been rendered to illegitimate children of the testator. A written contract by which the testator promised to support the mother of- the children for the rest of her life stated expressly that their relations were meretricious, and that the children were not of his own body, and she upon her part agreed to save him harmless from any claim whatsoever for the support and maintenance of her children. On all the evidence, held, that a verdict for the plaintiff was against the weight of evidence.</p> <p>At common law the putative father of an illegitimate child is under no obligation to support him.</p> <p>The effect of a failure to respond to a notice to produce documents in court is to permit the party serving the notice to give secondary evidence of the documents called for. But a failure, to produce the documents is no proof that they exist, nor does it prove the case of the party calling for them.</p>

Appeal by the plaintiff, James B. Hay, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of December, 1913, granting the motion of Kate M. Brookfield to be made a party defendant in this action.

<p>Railroad—negligence — collision between street car and vehicle, causing death — contributory negligence — failure to look for approaching car — charge.</p> <p>Action against a street railroad company to recover for injuries causing death. It appeared that the decedent drove Ms wagon diagonally across a street in the city of New York, and the veMcle was struck by the defendant’s car. There was no evidence that the decedent looked to discover whether a car was approaching, or that he made any effort to mcrease the speed of the veMcle before it was struck. The only precaution he took was to hold out his hand as he was going upon the track. On all the evidence, held, that a verdict based on the finding that he was free from contributory negligence was agamst the weight of evidence.</p> <p>Under the circumstances, it was error to charge in substance that the decedent had reasonable ground to suppose he might cross M safety, and that it was the duty of the ear driver to afford him a reasonable opportunity to do so. This, because the decedent had failed to acquaint himself with the situation.</p> <p>So, too, in view of positive- evidence that the decedent did not look to discover whether a car was approaching, it was error to charge that the jury might assume that he did look.</p>

Appeal by the plaintiff, Uvalde Contracting Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of June, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the 9th day of June, 1913, denying plaintiff’s…

Appeal by the defendants, Stewart R. Reed and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Grreene on the 26th day of February, 1913.

<p>Appeal by the plaintiff, Wallace Thayer, as committee, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 29th day of August, 1913, dismissing the complaint upon the decision of the court after a trial at the Erie Special Term before the court without a jury.</p> <p>On July 26, 1904, William Glynn, an incompetent person, had on deposit with defendant savings bank $3,126.67. On that day the County Court of Erie county in a proceeding for that purpose adjudged Glynn to be incompetent and made an order for the appointment of his daughter, Mrs. Sarah M. Ealler, committee of his person and estate. The form of the order was that she be appointed “ a committee of the person and of the property of said William Glynn, upon executing and filing a bond for $8,500, to be approved by this court, pursuant to the provisions of the statute in such case made and provided.” After the making of this order and on the same day, Mrs. Ealler, through her attorney, withdrew from defendant savings bank the whole of Glynn’s deposit by means of a check signed by her as committee and the production of a copy of the order appointing her committee and of Glynn’s pass book. Mrs. Ealler had not then qualified as committee by giving the required bond, nor did she do so until January 22, 1907. The present action was brought by plaintiff, the successor of Mrs. Ealler as committee, to recover of defendant the amount of said deposit account on the ground that the payment thereof to Mrs. Ealler was unauthorized and of no effect as against Glynn’s estate.</p> <p>On June 14, 1911, said County Court made an order accepting the resignation of Mrs. Ealler as committee and appointing a referee to take and state her accounts as such, and on June 23,1911, plaintiff was duly appointed and qualified as committee in her place, and on July 3, 1911, said County Court confirmed the report of the referee upon Mrs. Ealler’s accounting. Erom this report it appeared that Mrs. Ealler had used and applied $1,126.67 of the $3,126.67 she drew from defendant bank to the use and for the benefit of the incompetent; that she was induced by one Eennelly, an attorney at law, who had acted as her attorney in the proceeding, to sign her name as committee to the check on defendant bank and to draw the fund therefrom, and that he (Fennelly) “ forced the said Sarah M. Faller to deliver to him the sum of $2,000 to be held by him in trust as pretended security for a bond which he was to procure for the said Sarah M. Faller, and that thereupon the said Fennelly misappropriated the sum of $2,000 and has never accounted for any part of it.” Apparently Fennelly himself presented the check and drew the money and handed over'to Mrs. Faller only $1,126.67 thereof, retaining the $2,000 in his possession. The referee also held and reported in substance that Mrs. Faller had not become committee until she qualified by giving her official bond in January, 1907, and that she was not .chargeable, as committee, with the $2,000 received and misappropriated by said Fennelly, but was chargeable with the sum of $1,126.67 which she applied to the usé of the incompetent.</p> <p>Defendant had no notice of the proceedings for Mrs. Faller’s resignation and accounting, and took no part therein.</p> <p>The condition of the bond given by Mrs. Faller as committee on January 22, 1907, is as follows: “ If the said Sarah M. Faller shall and do in all things faithfully discharge the trust reposed in her as the committee of the person and estate of William Glynn, an incompetent person, of which she has been duly appointed, and shall obey all lawful direction of the said court or a judge thereof, or of any other court or judge, touching the said trust, and shall in all respects render a just and true account of all moneys and other properties received by .her, and of the application thereof, and of her said committeeship, whenever she is required so to do by a court of competent jurisdiction, then the preceding obligation to-be void, otherwise to remain in full force and virtue.” Her sureties upon this bond are'solvent and able to pay the whole amount sued for here, but no action has been brought by plaintiff against her or her sureties.</p> <p>Upon plaintiff’s appointment and qualification as committee he duly demanded from defendant the amount of Glynn’s deposit account.</p> <p>It is admitted that defendant paid the money in reliance upon the order appointing her committee and upon her check or order upon the bank signed by her as such committee.</p>

Appeal by the defendants, Bella W. Hochstadter and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of May, 1913, upon the decision of the court after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 6th day of May, 1913, denying the defendants’ motion for a new trial made upon the minutes, with notice of intention to bring up…

Appeal by the plaintiff, The Security Bank of New York, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of March, 1913, affirming a judgment of the City Court of the City of New York in favor of the defendant entered upon the verdict of a jury, and also affirming an order of said court denying plaintiff’s motion for a new trial.

Appeal by the defendant, Charles A. Menet, purchaser at a foreclosure sale, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of November, 1913, requiring him to complete his purchase.

Appeal by the plaintiff, Arthur L. Newman, from an order and determination of the Appellate Term of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 8th day of May, 1913, affirming a judgment of the City Court of the City of New York in favor of the respondent dismissing the complaint on the merits and awarding judgment in favor of the respondent on its counterclaim.

<p>Appeal by the defendant, The Oity of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of April, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 14th day of April, 1913, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Village of Otego, N. Y., from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Otsego on the 11th day of November, 1912.

Appeal by the plaintiff, Elizabeth Hubbell, as administratrix,«etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 27th day of November, 1912, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office on the 20th day of November, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Frank McFee and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 10th day of June, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of June, 1913, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Fonda, Johnstown and Grloversville Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 5th day of June, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 9th day of June, 1913, denying the defendant’s motion for a new trial made upon'the minutes.

Appeal by John Tammany and others from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 17th day of November, 1913, adjudging them guilty of criminal contempt of court and punishing them therefor.

Appeal by the plaintiff, Crocker-Wheeler Company, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the Uth day of January, 1912, setting aside the verdict of a jury in plaintiff’s favor, and granting defendant’s motion for a new trial made upon the minutes. (This case was previously reported in 140 Appellate Division, 726.)

<p>Will — unauthorized trust — power in trust — meaning of word “children”— authority of trustees to convey real property—submission of controversy — omission of necessary parties.</p> <p>A testator devised his entire estate in trust to his executors as trustees to continue his business and pay to his widow a certain amount during the minority of all of his children. Thereafter the trustees were to render an accounting and then distribute two-thirds of the estate among the living children and the descendants of the deceased children per stirpes, and invest the remaining one-third for the life of the widow and pay her the income. Upon her death they were directed to distribute such one-third among the children and descendants of deceased children per stirpes. The trustees were given express power to sell and convey the real property for the sole purpose of effectuating the provisions of the will. At the testator’s death all of his children and all of the descendants of deceased children, except one, had attained their majority, and one-third of his estate consisted of personal property.</p> <p>Held, that the word “children,” as used by the testator, did not include the “grandchildren;”</p> <p>That the attempted trust is unauthorized by section 96 of the Real Property Law;</p> <p>That, since the defendants claim that the attempted trust may not be executed as a power in trust, the court cannot decide a controversy as to the capacity of the trustees to convey the real property, submitted upon an agreed statement of facts, where the children and descendants of deceased children are not parties to the proceeding.</p>

Appeal by the defendant, Peter J. Duffy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of July, 1913, convicting the defendant of the crime of bribery in violation of section 372 of the Penal Law, entered upon the verdict of a jury, and also from all intermediary orders forming part of the judgment roll, more particularly from an order denying the defendant’s motion for a bill of…

Appeal by the defendant, Nova Realty Company, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of March, 1913, as directs a deficiency judgment against the defendant Nova Realty Company.

. Appeal by the defendant, Nova Realty Company, from so pauch. of a judgment .of the ■ Supreme Court in favor of the ’ plaintiffs, entered in the office of the clerk of- the county of New York on the 15th day of March, 1913, as directs a deficiency judgment against the defendant Nova Realty Company.

Appeal by Margaret F. Brennan from part of a decree of the Surrogate’s Court of the county of - Queens, entered in said Surrogate’s Court on the 14th day of July, 1913, and also, as stated in the notice of appeal, from the decision of the surrogate upon which the decree was entered.

Appeal by the defendant, William Jacobs, from an order of . the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 21st day of November, 1913, denying the appellant’s motion to compel the acceptance of his answer by the plaintiff herein.

Appeal by the defendants, The City of New York- and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk- of the county of Queens on the 10th day of June, 1913, upon the-verdict of a jury for $2,000, and also from two orders entered in said clerk’s office on the 9th and 13th days of June, 1913, respectively, denying separate motions of the defendants for a new trial made upon the minutes.

<p>Motion by the plaintiff, George Beider, an infant, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, after a dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial before the court and a jury at the Westchester Trial Term.</p>

Appeal by the plaintiff, Harold A. Andrewes, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 14th day of November, 1913, upon the decision of the court after a trial before the court at the Nassau Trial Term, a jury having been waived.

<p>Appeal by the defendant, William 0. Damron, from a judgment of the Supreme Court, rendered against him on the 30th day of January, 1913, upon the verdict of a jury convicting him of the crime of grand larceny in the first degree, and also from an order denying defendant’s motion for a new trial.</p>

Appeal by the defendants, Isaac Silver and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of May, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of May, 1913, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Monaton Eealty Investing Corporation, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Yew York on the 26th day of May, 1913, affirming an order of the City Court of the city of Yew York, entered in the office of the clerk of said court on the 3d day of January, 1913, granting a motion for judgment on the pleadings, and also from the judgment of affirmance entered upon…

<p>Negligence — Labor Law, section 94, construed — provision relating to sanitary conditions of “tenant factory ” — said section not applicable to personal injuries caused by mechanical appliances.</p> <p>Section 94 of the Labor Law, providing in substance that the owner of a “tenant factory” shall keep the building well drained, the plumbing in good condition, the basement and other parts of the building in a sanitary and “safe” condition, has no relation to the appliances in the building from a mechanical point of view. It relates solely to matters of sanitation.</p> <p>Hence, a person who was injured by a freight elevator in such building cannot recover damages from the owner under said section.</p>

<p>Appeal by Charles E. Manierre, - individually and as executor and trustee, etc., from part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of December, 1912, overruling objections to the confirmation of the report of the commissioner of assessment herein and confirming the said report.</p>

Appeal by Isaac N. Spiegelberg and another, as executors, etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of the said surrogate on the 21st day of July, 1913, authorizing the issuance of an execution against the executors of the last will and testament of Albert Friedlander, deceased.

<p>Husband and wife — divorce — waiver of right to jury trial of issue of adultery — failure to move to frame issues within .twenty days after issue joined — rule 31 of the General Rules of Practice, as amended in 1910, inapplicable —validity of Rules of Practice inconsistent with statutory provisions.</p> <p>Rule 31 of the General Rules of Practice, as amended in 1910, is unauthorized in so far as it is an attempt to limit the constitutional rights to a trial by jury of the issue of adultery in an action for divorce by prescribing a mode of waiver not included in a statutory provision (Code Civ. Proc. § 1009) relating to the same subject-matter.</p> <p>Hence, a defendant in an action for divorce does not waive her right to a trial by jury by failing to apply within twenty days after issue joined for an order directing that the issue of adultery be stated for trial by a jmy.</p>

<p>Habeas corpus—jurisdiction of justice to discharge prisoner, where proceedings have not been in compliance with statute.</p> <p>Where it does not appear upon whom a writ of habeas corpus was served, or by whom the' prisoner was produced before the Supreme Court, or that any notice of the proceeding was given-to a person interested in continuing the imprisonment, or that any one made formal return to the writ, as required by the statute, the court has no jurisdiction to direct the discharge of the prisoner.</p>

<p>Appeal by the plaintiffs, Madeline M. Duck and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of December, 1913, denying plaintiffs’ motion for judgment on the pleadings, and sustaining a demurrer interposed by the respondents to the complaint, with leave to plaintiffs to amend and plead over.</p>

Appeal by the plaintiffs, Madeline M. Duck and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of December, 1913, denying plaintiffs’ motion for judgment on the pleadings and sustaining a demurrer interposed by the respondent to the complaint, with leave to plaintiffs to amend and plead over.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of February, 1913, upon the decision of the court, after a trial before the court at the New York Trial Term, a jury having been waived.

Appeal by the plaintiff, Julius Loewenthal, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2tth day of January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of January, 1913, denying the plaintiff’s motion for a new trial.

<p>Cross-appeals by the plaintiffs and by the defendant, Margaret Eleanor Forbes Debevoise, sued by the name of Margaret Eleanor Forbes, individually and as executrix, etc., from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1913, made on the motion of the defendant, appellant, to require the plaintiffs to give security for costs and for a stay in proceedings pending compliance with the order.</p>

Appeal by the plaintiff, Merrill-Ruckgaber Company, from a judgment of the Supreme Court in its favor, entered in the office of the clerk of the county of New York on the 14th day of December, 1912, upon the verdict of a jury rendered by direction of the court for the sum of $473.80 and costs.

Appeal by the defendant, The Board of Education of the City of Hew York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19 th day of May, 1913, overruling a demurrer to the first and second causes of action set forth in the complaint.

<p>Master and servant — action for wrongful discharge — agreement that work shall be satisfactory to customers — erroneous charge — evidence — reasons for dissatisfaction of customers.</p> <p>Where a written contract employing a silk finisher provided that the work done by him should be “ satisfactory to the trade and customers ” of the employer, and that if his work was not done satisfactorily to the trade and customers the employer might discharge the employee, and the latter sues for an alleged wrongful discharge, it is error for the court to instruct the jury that it was not sufficient that the defendant shows that his customers were dissatisfied, but that he must go further and show that cause for the dissatisfaction actually existed.</p> <p>It was also error to exclude testimony as to statements made by the defendant’s customers as to the reasons for their dissatisfaction.</p>

<p>Motion for a reargument of a motion by an attorney relative to alleged reflections upon his professional conduct appearing in an opinion of the Supreme Court.</p>

<p>Personal property — sale in foreign State of interest in personal property located in this State — laws of this State govern—sheriff—liability for conversion — issues — evidence—res gestaa.</p> <p>Where a non-resident loans money on promissory notes of a resident of this State and receives as collateral security an assignment of personal property, which is located in this State and has remained in the continued possession of the borrower, an attempted sale of such property in the foreign State, without compliance with the statutes of this State, is void, and a sheriff taking and withholding possession of such property is liable in an action at law for conversion.</p> <p>In such an action the court has no right to inquire into the equities between the lender and borrower.</p> <p>Evidence of transactions between the lender and borrower, and of deelar'atibns by the latter, is admissibly as part of the rés aésta.</p>

Appeal by Meyer A. Bernheimer from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 27th day of March, 1913.

<p>Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of July, 1913, overruling a demurrer to the complaint and directing judgment for the plaintiff, and also from the judgment entered thereon in said clerk’s office on the 1st day of August, 1913.</p>

<p>Appeal by the plaintiff, the Press Publishing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of December, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial before the court and a jury at the New York Trial Term.</p>

<p>Appeal by the defendants, Erving V. Dwyer and others, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered against them on the 15th day of August, 1911, convicting them of conspiracy to commit acts injurious to trade and commerce, and for which each was sentenced to be imprisoned in the penitentiary for three months, and in addition thereto directed to pay a fine of $500.</p> <p>Also, an appeal from an order denying defendants’ motion for a new trial made upon the minutes and for an arrest of judgment.</p>

<p>Separate appeals by the defendants, Hans Mahler and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 14th .day of May, 1913, upon the decision of the court after a trial at the Hew York Special Term.</p>

Appeal by the defendant, F. Stanwood Welden, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of April, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, the Board of Education of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1913, granting a peremptory writ of mandamus commanding the appellant to reinstate the relator to the position of “teacher in charge ” of public school No. 14 in the borough of The Bronx, or to a corresponding position in any other school in…

<p>Appeal by the petitioner, James McIntosh, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of July, 1913, denying a motion for a peremptory writ of mandamus.</p>

Appeal by the defendants, Philip Boyer and others, as copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of March, 1913, upon the verdict of a jury rendered hy direction of the court, and also from an order entered in said clerk’s office on the 28th day of March, 1913, denying defendants’ motion for a new trial made upon the minutes.

<p>Will — devise of real property in trust—title and right of trustee to receive income — action by substituted trustee against administratrix to recover accrued income from trust property.</p> <p>When a testator devises real property to a trustee the legal title and the right to receive the income passes at once to such trustee.</p> <p>Where a testator by the terms of his will appointed a trust company both executor and trustee, and devised to it all of his residuary estate, including his real estate, upon certain trusts, and the trust company failed to serve, and one person was appointed trustee and another administratrix with the will annexed, the legal title to the real estate vested in the substituted trustee and not in the administratrix.</p> <p>Hence, such trustee is entitled to recover from the administratrix the rents and profits from the real estate accruing from the time of the testator’s death to the date of the sale of such property under the statute.</p>

Appeal by the defendant, Jennie Coutant Mason, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes, and also an appeal from said order as resettled by a second order entered in said…

Certiorari issued out of the Supreme Court and attested on the 31st day of December, 1909, directed to Antonio Zucca and others, composing the board of assessors of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to relator’s claim for damages.

Appeal by the defendants, Henry P. Read and another, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the'22d day of April, 1913, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the same day, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Mew York, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Mew York on the 24th day of June, 1913, affirming a judgment of the Municipal Court of the City of Mew York, borough of Manhattan, seventh district, in favor of the plaintiff rendered upon the verdict of a jury for seventy-five dollars.

Appeal by the plaintiff, Thomas McGowan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of May, 1913, upon a dismissal of the complaint by direction of the court at the close of the plain biff’s case upon a trial before the court and a jury at the New York Trial Term.

<p>Pleading — suit for an accounting—bill of particulars.</p> <p>Where the complaint in a suit for an accounting alleges that the'plaintiff, after entering into numerous contracts with property owners to represent them in condemnation proceedings, made an agreement with the defendant to do certain legal work and collect for and pay over to the plaintiff the consideration provided by the contracts and the expenses advanced by it thereunder; that the defendant, in violation of said agreement, collected large sums of money due the plaintiff from the owners out of the awards made to them, and has failed and refused to turn over such moneys, and the answer denies the allegations as to refusal to pay over amounts collected, but admits the agreement, and alleges that the contracts made by the plaintiff with the owners were ultra vires, the defendant is not entitled to a bill of particulars specifying the names of the property owners from whom he has collected money belonging to the plaintiff, and at what times he failed to make reports, as the accounting is sought for the purpose of acquiring information which is known to the defendant, and necessarily unknown to the plaintiff.</p>

<p>Appeal by the defendant, Thomas H. Skidmore, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 24th day of October, 1913.</p>

<p>Railroad — negligence — injury to conductor from defective electric switch — evidence — lease by defendant of its road to another, prior to accident — assumption of risk.</p> <p>Action by a conductor to recover for personal injuries sustained from a shock caused by a defective electric light switch, which he was changing to indicate that his car had the right of way.</p> <p>Held, on all the evidence, that the direction of a verdict for the defendant was error;</p> <p>That the defendant’s claim that it had leased its road to another prior to the accident was not sustained as a matter of law, and the question should have been submitted to the jury;</p> <p>That the arrangement constituted a mere agency, without compensation; That the plaintiff by continuing to use the switch, with knowledge that it was defective, did not assume the risk as a matter of law.</p>

Appeal by the defendant, Central New England Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 10th day of April, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Italian Silk Underwear Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York On the 5th day of September, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendants, Julian M. Gerard and another, from an order of the Supreme Court, made at the New York ■ Special Term and entered in the office of the clerk of the county of New York on the 7th day of August, 1913, denying their motion for judgment on the pleadings.

Appeal by the defendants, Julian M. Gerard and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of August, 1913, denying their motion for judgment on the pleadings.

Appeal by the defendant, Spear & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of January, 1913, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the same dayj denying defendant’s motion for a new trial made upon the minutes.

Motion by the defendant, The Atlantic Transport Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Trial Term in October, 1913

Appeal by the defendant, Henry 0. Freeman, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, .rendered against him on the 28th day of March, 1913, convicting him of the crime of arson in the second degree. . . .

Appeal by the defendant, Charles Kaye, from a judgment of the Court of Special Sessions of the City of New York, Part 1, borough of Manhattan, entered in the office of the clerk of said court on the 14th day of April, 1913, convicting the defendant of a misdemeanor, and also from an order dated on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Crime — robbery — evidence —failure to identify defendant.</p> <p>Appeal from a judgment convicting the defendant of the crime of robbery and larceny as a second offense. Evidence examined, and held, insufficient to identify the defendant as the person who committed the crime.</p>

<p>Practice — contempt of court in supplementary proceedings — appeal is proper remedy.</p> <p>An order adjudging a witness in proceedings supplementary to execution guilty of contempt of court, in that he refused to answer questions put ' to him by a justice of the Supreme Court, cannot be reviewed by a writ of certiorari, but only by an appeal from the order.</p>

Appeal by the plaintiff, George Bakewell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 20th day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1913, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Costs — Code of Civil Procedure, section 3247, construed — action brought for benefit of another—when party made defendant because he will not join in suit is not liable for costs.</p> <p>Section 3247 of the Code of Civil Procedure, relating to costs, provides for two separate and independent contingencies, viz.: (1) Where an action is brought in the name of another by a transferee of the cause of action," or by any other person who is beneficially interested therein; (2) where after the commencement of an action the cause thereof becomes, by transfer or otherwise, the property of a person not a party to the action.</p> <p>Hence, in an action for breach of contract, a defendant, originally a partner of the plaintiff when the contract was made, and who was made defendant because he refused to join in the action, cannot be charged with costs recovered by the defendant, who was alleged to have made the breach of contract. This, because the plaintiff was not the trans feree of the cause of action, and the defendant sought to be charged with costs did not procure the institution of the suit, and also because he was a party to the action, and it did not become his property by transfer.</p>

Appeal by the plaintiff, Louis Block, from so much of .an order, of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 31st day of December, 1911, resettling a prior order, as overrules demurrers .to the first and second separate defenses set up in the answer.

Appeal by the plaintiff, Frank M. Derrick, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 5th day of March, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Sim Printing and Publishing Association, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of June, 1913, overruling its demurrer to the complaint interposed, upon the ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action.</p> <p>The plaintiff alleges that for more than eight consecutive years prior to the 30th day of June, 1910, he was principal of public school No. 39 in the city of New York; that on that day he was transferred to another public school in said city and one Scheider was appointed principal of public school No. 39 as his successor; that he is still following his vocation as a public school principal; that the defendant is a domestic corporation engaged in publishing a newspaper known as the Evening Sun, having a general circulation throughout the State, and that on the 29th day of January, 1912, the defendant maliciously published in said newspaper of and concerning the plaintiff in his profession ££ false and defamatory matter, imputing unto the plaintiff gross and general ignorance and incapacity and a total want of skill in his profession, under the following caption:</p> <p>£ £ 39 ’ Is Harlem’s Oldest School.</p> <p>All Nations Are Represented Among The Pupils.</p> <p>PRINCIPAL HAS HARD TASK.</p> <p>Mr. Scheider Has Brought Harmony Out of Chaos.’</p> <p>(meaning that chaos reigned in public school 39 under Mr. Scheider’s predecessor, the plaintiff herein, through the plaintiff’s lack of administrative ability, incompetence, and want of tact and skill in his profession as a principal of public schools) and in the body of the article in which the following appears:</p> <p>(b) ‘ Mrs. Killeen, his assistant, who is also principal of Evening School 72 on East 106th Street, whispered the other morning to a visitor: £Mr. Scheider has brought harmony out of chaos ’ (meaning that when Mr. Scheider succeeded the plaintiff as principal of public school 39 he found the school, as an organization, utterly demoralized and in chaos in consequence of his predecessor’s — the plaintiff’s — lack of administrative ability and his general incompetence as a principal);</p> <p>(c) ‘ Harmony reigns and the teachers would do anything in the world for him ’ (meaning that under Mr. Scheider’s predecessor the management of the school was demoralized, discord reigned, and that as between the teachers and .their principal — the plaintiff herein—there was an absence of mutual respect, co-operation, sympathy and cordiality, resultant upon plaintiff’s lack of. those personal qualifications, tact, professional skill and administrative ability, prerequisite to competent and harmonious management of a public school); (d) c There is not a teacher here who is not loyal, and as for the boys, he is like a big brother to most of them ’ (meaning that under the chaotic state which reigned under his predecessor — the plaintiff herein — the teachers were not loyal to their principal and there was no cordial relationship between the plaintiff and the boys of his school, in consequence of the lack of personal cordiality, sympathy, tact and ability, and in consequence of the general incompetence of the plaintiff in his profession as a principal of public schools); (e) Before he came 150 to 200 boys used to come late to school, and now the average is not more than seven or eight ’ (meaning that under his immediate predecessor, the plaintiff, the latter was guilty of gross incompetence as a disciplinarian and was so lacking in administrative ability and the management of the school was so demoralized through general professional incompetence that from 150 to 200 boys used to come late, while under competent management the number should have been reduced to a number merely negligible).</p>

Appeal by the defendants, Louis Rieger and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of April, 1913, upon the decision of the court after a trial at the New York Special Term, with notice of intention to bring up for review an order of the justice who made the decision on which the interlocutory judgment was entered setting aside a former decision signed…

Appeal by the plaintiff, John F. Oomey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡New York on the 4th day of June, 1913, upon the decision of the court dismissing the complaint after a trial at the ¡New York Trial Term before the court without a jury.

<p>Pleading — action on promissory note — complaint stating cause of action.</p> <p>A complaint in an action upon a promissory note which in substance ' alleges that on or about a certain date the defendants made their promissory note whereby they promised to pay to the order of the plaintiff a certain sum of money on a certain date with interest at six per cent, but that no part thereof has been paid, states a cause of action.</p> <p>The allegation that the note was “made” by the defendants is equivalent to an allegation that it was both signed and delivered to take effect as a negotiable instrument.</p> <p>The allegation that the note was made payable to the order of the plaintiff shows that delivery was made to him and also ownership. It is not necessary that the plaintiff further allege that he has not parted with possession or title.</p> <p>■ Nor is it necessary that the complaint allege that there was a consideration for the note, as that is presumed.</p> <p>Nor need the plaintiff, having demanded judgment for the face of the note, with interest, allege the amount due where there is an allegation that no part of the note had been paid and that it is overdue.</p>

Appeal by the defendant, Jacob Mueher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of September, 1913, upon the decision of the court after a trial before the court at the New York Trial Term, a jury having been waived.

Appeal by the defendant, William G-. White, a corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of December, 1913, granting an injunction pendente lite restraining the defendant from advertising itself in any manner so as to hold out or represent that the plaintiff is identical or is associated with the defendant.

Appeal by the plaintiffs, Hugh L. Fox and others, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 24th day of June, 1913, affirming a judgment of the Municipal Court of the City of Hew York, borough of Manhattan, first district, in favor of the defendant, rendered after a trial before the court without a jury.

Appeal by the defendant, The Texas Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of April, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of May, 1913, denying defendant’s motion for a new trial made upon the minutes..

Appeal by the defendant, .¿Etna Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of June, 1913, upon the decision of the court after a trial before the court at the New York Trial Term, a jury having been waived.

Appeal by the defendant, Lee Shubert, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of July, 1913, sustaining plaintiff’s demurrer to the first and second separate defenses set up in the answer.

Appeal by the plaintiff, Irwin T. Longworth, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of July, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Albert H. Woods, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of May, 1913, upon the verdict of a jury for $5,073.67, and also from an order entered in said clerk’s office on the 20th day of May, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Ellen Connell, from certain parts of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of March, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal, by the plaintiff, Anton J. Eeit, from a judgment of the Supremo Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 14th day of May, 1913, upon the dismissal of the complaint by direction of the court upon the opening and the pleadings.

Appeal by the plaintiff, William L. Youngman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1913, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, United States Express Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of July, 1913, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 1st day of July, 1913, denying appellant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Plaza Operating Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of New York on the '28th day of October, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Tax — taxation of special franchise of steam railroad company over streets used by permission of municipal authorities — when railroad company estopped from claiming that streets have not been dedicated to public use.</p> <p>A steam railroad incorporated under section 2 of the former Railroad Law (Laws of 1890, chap. 565, as amd.) which maintains and operates its road over certain streets, by permission of the municipal authorities, and acquiesces in the contention of the city that such streets have been dedicated to public use, is, on a proceeding for the taxation of its special franchise, estopped from claiming that such streets are not public, and the assessment of its special franchise should be affirmed.</p>

Appeal by the plaintiff, Oswald Maune, from an order of the Supreme Court, made at the Kings County Special Term and .entered in the office of the clerk of the county of Kings on the 5th day of June, 1913, and also from the judgment entered upon said order in the office of the clerk of the county of Kings on the 11th day of June, 1913.

Appeal by the defendant, Charles 0. Blair, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of June, 1913, upon the decision of the court after a trial at the Kings County Special Term.

Appeal hy the plaintiff, Michael J. Mantón, from a judgment of the Supreme Court in favor of the defendant Brooklyn and Flatbush Realty Company, entered in the office of the clerk of the county.of Kings on the 5th day of June, 1913, upon the decision of the court after a trial at the Kings County Special Term.

Reargument of an appeal. by the plaintiff, Elizabeth McNamee, as administratrix, etc., from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Queens on the 21st day of June, 1911, upon the dismissal of the complaint by.direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the Queens County Trial Term.

Certiorari issued out of the Supreme Court, pursuant to an order of the Special Term of September 23, 1913, directed to James G-.

Appeal by the plaintiff, Joseph Sohonleben, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of November, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, upon a trial before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the 12th day of November, 1913, denying plaintiff’s…

Appeal by the defendants, Joseph Roth and Samuel Stack, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of April, 1913, upon the verdict of a jury for $1,700, and also from an order entered in said clerk’s office on the 25th day of April, 1913, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas J. Tuomey, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of November, 1913, granting the defendants’ motion for judgment on the pleadings.

Appeal by the defendants, Carl Sotscheck-and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Vandewater & Company, Ltd., from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the lYth day of June, 1913, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, fifth district, in plaintiff’s favor.

Appeal by the defendant, Catherine Lugar, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of July, 1912, upon the decision of the court after a trial at the Hew York Special Term.

Appeal by the defendant, Enoch G. Megrue, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of July, 1913, denying his motion to vacate and set aside the taxation of plaintiff’s costs herein.

Appeal by the plaintiff, Warren Putnam Newcomb, as executor, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of July, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Harris Wolff, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of Hovember, 1913, setting aside and vacating a judgment entered upon an order of this court making the order of the Court of Appeals the order of this court on a remittitur from the Court of Appeals affirming an order and answering in the affirmative a question certified by this court in…

Appeal by the defendant, Empire Trust Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of November, 1913, directing in what manner the case on appeal herein shall be settled and signed.

<p>Appeal by the plaintiff, L. Lawrence Weber, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of October, 1913, upon the dismissal of the complaint by direction of the court before the close of plaintiff’s case.</p>

Appeal by the plaintiff, Mike Bigus, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 4th day of April, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, Catherine Goetz, as administratrix, etc., from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Queens on the 20th day. of March- 1912, upon a dismissal of the complaint as to certain defendants, by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 30th day of January, 1912, denying plaintiff’s motion for a new…

Appeal by the defendant, John T. O’Brien, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 19th day of Hay, 1913, upon the decision' of the court after a trial before the court without a jury. The action was brought to foreclose a mortgage on real estate.

<p>Motor vehicles—negligence — injury to automobile at grade crossing — when negligence and contributory negligence questions for jury.</p> <p>Action against a railroad company to recover for the destruction of an automobile which, while stalled on a grade crossing, was struck by the defendant’s train, which was backed over the crossing. There was evidence to the effect that the rear end of the train was unlighted, and no signal that it was about to move was given. It further appeared that the plaintiff’s chauffeur, a competent driver of experience, could have kept the motor of the automobile running by increasing the gasoline supply, either by a hand throttle, or by a foot' accelerator, but had failed to do so, and had stalled the automobile in order to avoid striking a person who suddenly stepped' in front of it. On all the evidence, held, that the contributory negligence of the chauffeur and the negligence of the defendant were questions for the jury, and that a verdict in favor of the plaintiff should be affirmed.</p>

Appeal by the plaintiff, Frank Sherman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Columbia on the 31st day of December, 1912, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 3d day of March, 1913, upon the verdict of a jury, and also from an order- entered in said clerk’s office on the 17th day of March, 1913, denying defendant’s motion for a new trial made upon the minutes.

<p>Will—provision creating trust for life of beneficiary, construed.</p> <p>A testatrix provided by will that her trustee should hold the residue of her estate and pay over the income therefrom to her son during his life. He was also authorized at any time he should see fit' to convey the principal to the son, with the latter’s consent. The son was also given authority to dispose of the property by will, whether it had been previously conveyed to him or not. The son died before the property had been turned over to him, and without making a will.* Held, that the residue of the property reverted to the estate of the testatrix upon the death of the son, and his children acquired no title therein.</p>

<p>Appeal from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 17th day of July, 1913, overruling a demurrer to a separate defense.</p>

Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 11th day of October, 1913, denying a motion to strike out reiterated denials in separate affirmative defenses,

<p> Attorney and client•—substitution of attorneys—right of substituted attorneys to copy of stenographer's minutes. </p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 23d day of March, 1912, upon the verdict of a jury, and also from an order dated the 20th day of February, 1912, and entered in said clerk’s office, denying a motion for a new trial.</p>

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

<p>Appeal from an order of the Supreme Court, made at Special Term and entered in the New York county clerk’s office on the 3d day of February, 1913, confirming an assessment for taxation.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 26th day of November, 1913, denying a motion to dismiss the complaint for unreasonable neglect to prosecute.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 28th day of February, 1912, dismissing the complaint at the close of the plaintiff’s case upon a trial at Trial Term, and also from an order entered on the 2d day of March, 1912, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 28th day of March, 1913, on a verdict, and also from an order entered on the 31st day of March, 1913, denying a motion for a new trial.</p>

Cross-appeals from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 25th day of April, 1913, upon a decision in an action to foreclose a mechanic’s lien.

<p>Appeal from an order of the Supreme Court, made "at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of August, 1913, granting a motion to vacate notices of attorney’s lien filed by the appellant with the comptroller of the city of New York against a street opening award.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 3d day of September, 1913, granting judgment on the pleadings, with leave to withdraw demurrer and plead over on payment of costs.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Hew York county clerk’s office on the 11th day of July, 1913, upon the verdict of a jury, and also from an order entered on the 33d day of July, 1913, denying a motion for a new trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 24th day of September, 1913, determining an attorney’s lien.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 17th day of June, 1913, denying a motion for judgment on the pleadings.</p> <p>Order affirmed, with ten dollars costs and disbursements.</p>

Appeal by the defendants, Frank A. Liftchild and another, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 6th day of June, 1913, confirming a referee’s report.

Appeal by the defendants, Samuel Jankelson and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 21st day of June, 1913, in favor of the plaintiff, and from an Older, entered in said clerk’s office on the 26th day of June, 1913, denying a motion for a new trial.

Appeal by the defendants, Archibald Hadden and another, from a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Queens on the 29th day of May, 1913.

Appeal by the plaintiff from a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Nassau on the 29th day of October, 1912, as amended on the 9th day of November, 1912.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 84th day of June, 1912, in favor of the plaintiff, and from an order entered in said clerk’s office on the 5th day of August, 1913, denying its motion for a new trial.

Appeal by the defendants from an order of the Special Term of the County Court, entered in the office of the clerk of the county of Westchester on the 24th day of July, 1913. Order of the County Court of Westchester county affirmed, with costs.

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 17th day of June, 1913, confirming the report of a referee in so far as said judgment sustained certain exceptions of the defendant to said report and disallowed costs except as awarded by the Appellate Division on the first appeal herein, and also an appeal from an order entered on the 7th day of June, 1913, as resettled, denying a motion to resettle said judgment.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 4th day of December, 1913, denying a motion made by the plaintiff for a temporary injunction.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 28th day of November, 1913, denying a motion staying action in the City Court, and also from an order entered on the 15th day of December, 1913.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 19th day of December, 1913, granting a motion to vacate an order for the examination of plaintiff before trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Hew York county clerk’s office on the 26th day of June, 1913, upon the verdict of a jury, and from two orders entered on the 28th day of June, 1913, denying motion for a new trial.</p>

Appeals from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 22d day of December, 1918, granting a motion for an injunction.

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 23d day of December, 1913, granting a motion that defendant be directed to permit plaintiff to operate a certain elevator in the premises of the defendant.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 17th day of June, 1913, denying a motion for j udgment on the pleadings.</p> <p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Appeal from a judgment of foreclosure and sale, entered in the Hew York county clerk’s office on the 26th day of March, 1913, on a decision after a trial at Special Term, and from an order entered on the 27th day of January, 1913, denying a motion for leave to reopen the case after rendition of the decision.</p> <p>Judgment and order affirmed, with costs.</p>