Volume 161 — New York Appellate Division Reports

Appeal by the defendant, The City of Utica, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on 15th day of August, 1913, upon the decision of the court after a trial at the Oneida Special Term.

Appeal by the defendant, Franc B. Blackmer, as executrix, etc., 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 16 th day of May, 1913, upon the decision of the court after a trial before the court without a jury.

Appeal by the plaintiff, Jacob Lyons, 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 21st day of August, 1913, upon the decision of the court, after a trial at the Monroe Special Term, dismissing the complaint upon the merits, and granting the defendant the relief demanded in his counterclaim.

Appeal by the defendant, J. Frank Fellows, from a judgment of the County Court of Rensselaer county in favor of the plaintiffs, entered in the office of the clerk of said county on the 13th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1913, denying defendant’s motion for a new trial made upon the minutes.

<p>Certiorari issued out of the Supreme Court and attested -on the 26th day of June, 1911, directed to Egburt E. Wood-bury and others, composing the State Board of Tax Commismissioners, and Thomas Carmody, as Attorney-General of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in relation to the disallowance of the claim of the relators for professional services rendered in defense of an action brought in the Supreme Court by the Hygienic Ice and Refrigerating Company against John Franey, as clerk of the county of Albany, for the recovery of a portion of the moneys paid by said company as a tax on a certain trust mortgage claimed by it to be in part a supplemental mortgage within the meaning of the Tax Law; and also directed to the Attorney-General of the State of New York commanding him to certify and return likewise all letters, writings and memoranda relating to such claim.</p>

Appeal by the plaintiff, G. H. McGill Company, from an order and judgment of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 7th day of November, 1913, affirming a judgment of the City Court of the city of Rensselaer, rendered upon the verdict of a jury of no cause of action.

Appeal by the plaintiff, Agnes L. McCormack, 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 14th day of April, 1913, upon the decision of the court after a trial at the Albany Trial Term before the court and a jury.

<p>Appeal by the plaintiff, Fred M. Locke, from an order of the County Court of Livingston county, entered in the office of the clerk of said county on the 11th day of August, 1913, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial upon the ground that the verdict was contrary to law.</p> <p>This action was brought to recover the sum of $200, with interest thereon, alleged to have been subscribed by the defendants for the purpose of inducing the rebuilding and reconstruction of a manufacturing plant in the village of Lima, N. Y., which had a short time before the subscription was made been destroyed by fire.</p> <p>Plaintiff was unable to produce the subscription paper and secondary evidence of its contents was received. Though defendants, who are partners, admit that a subscription paper was signed by one of them in the name of both, the form and contents of the paper so signed were a matter of dispute in the testimony on the trial. Plaintiff gave testimony tending to show that it was in the following form: “We, the undersigned, agree to pay the sums set opposite our respective names to parties rebuilding the Lima Insulator plant, the same to become due and payable on an equal amount being expended on the rebuilding of the plant.”</p> <p>On the other hand, the testimony given on behalf of the defendants tended to show that it read: “We, the undersigned, agree to pay the sums opposite our respective names to a company to be organized for the purpose of building and equipping an insulator plant upon the premises in the town of Lima lately occupied by the Lima Insulator Co., upon the conditions following: The said sums are to become due and payable when an amount equal to the amount subscribed shall have been expended on the erection "of said plant.”</p> <p>Whatever may have been the exact language of • this subscription paper, it was actively circulated by and in behalf of a citizens’ committee appointed for that purpose at a public meeting of the citizens of that village, convened to consider ways and means to secure the rebuilding of the plant; and many subscriptions in varying amounts were secured, aggregating, inclusive of defendants’ subscription, nearly $2,000. At this time plaintiff’s wife was the owner of the site and wreckage of the old insulator plant, which she had purchased at a sale of the property by the trustee in bankruptcy of the corporation owning the plant at the time of the fire. The wife and son of plaintiff, then knowing that a subscription paper was to be prepared and circulated for the purpose therein indicated, began about that time the reconstruction and rebuilding of the plant; .and • thereafter, expended in rebuilding the plant and equipping it with machinery upwards of $25,000. The interest of the wife and son in the subscription here in question was thereafter assigned by them to this plaintiff.</p>

Appeal by the defendant, Thomas W. Campbell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tates on the 6th day of December, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, American Seating Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of June, 1913, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 24th day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Martha Benard and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 9th day of October, 1913, upon the verdict of a jury rendered by direction of the court. Ho tice is given of plaintiffs’ intention to bring up for • review upon the appeal the interlocutory judgment herein.

Appeal by Catherine Cronin from an order of the Supreme Court, made at the Onondaga Special Term, and entered in the office of the clerk of the county of Onondaga on the 2d day of December, 1913, canceling and revoking a liquor tax certificate.

<p>Bailment for mutual advantage of both parties — bailee only liable for ordinary "care — liability where property destroyed by flood or act of God.</p> <p>A contract for the sale of muriatic acid provided that the seller would ship to the buyer a certain quantity of “ empty carboys to remain in buyer’s possession during this contract without charge, and to be used by buyer for storage of muriatic acid. These carboys to be returned at end of contract term, and all carboys not so returned to be paid for by buyer at $3.00 each.” During the life <">f the contract an unprecedented flood occurred, destroying the carboys shipped to the buyer. The muriatic acid was to be shipped by plaintiff to defendant in tank cars. In an action by the seller to recover the value of the carboys, pursuant to the provision of the contract, held, that the transfer of the carboys constituted a bailment for the mutual advantage of both parties, rendering the bailee only liable for ordinary care;</p> <p>That since the destruction of the carboys was by act of God, and without fault of the defendant, it is not liable for their value under the provisions of the contract.</p> <p>Kruse, P. J., dissented, with memorandum.</p>

Appeal by the defendant, Sea Beach Bailway 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 31st day of January, 1913, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 18th day of February, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Reid Ice Cream 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 19th day of April, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. ^ Action to recover damages for the death of plaintiff’s intestate who was killed while attempting to stop a…

<p>Appeal by William. Sohmer, as Comptroller of the State of New York, from a decree of the Surrogate’s Court of the county of Suffolk, entered in the office of said surrogate on the 9th day of June, 1913, reversing and modifying an, order heretofore entered on the 13th day of March, 1913, fixing and assessing the transfer tax upon the estate of the testator.</p>

<p>Cross-appeals by the plaintiff, Morgan B. Blydenburgh, and the defendant, James R. Ely, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 25th day of February, 1913, upon the decision of the court after a trial before the court without a jury.</p>

<p>Appeal by the plaintiff, Maud Neale, from a judgment of the Supreme Court in her favor, entered in the office of the clerk of the county of Kings on the 15th day of April, 1913, upon the verdict of a jury 'for $1,000, and also from an order entered in said clerk’s office on the 14th day of April, 1913, denying the plaintiff’s motion for a new trial on the ground of the inadequacy of the damages.</p>

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

Appeal by the defendants, Thomas A. Matthews and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 10th day of June, 1913, upon the decision of the court after a trial at the Hew York Special Term.

Appeal by the plaintiff, Paizor Feinstein, 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 December, 1913, granting defendant’s motion for judgment on the pleadings, and also from the judgment entered in said clerk’s office on the 11th day of December, 1913, upon said order.

<p>Landlord and tenant—lease — covenant by tenant to pay taxes and assessments—lease construed.</p> <p>A lease for a term of years which requires the tenant in addition to the rent to pay such taxes, assessments and water rates as may be assessed against the property, so that the landlord shall receive a net rental specified, does not hind the tenant to pay the taxes, etc., which may he assessed during the term, but merely to pay any taxes or assessments that may become a lien upon the property and which the landlord may be required to pay, and which will reduce the rental that he receives from the tenant. Hence, although taxes were assessed during the last year of such a lease, the tenant is not required to pay them where they did not become a lien upon the property before the expiration of his term.</p> <p>Dowling, J., dissented.</p>

<p>Pledge — assignment of contingent remainder in trust fund as security for promissory note — when title of pledgee superior to that of subsequent judgment creditor — Statute of Limitations — right to resort to security although action upon debt is barred.</p> <p>The entry of a judgment on a promissory note, to secure the payment of which the maker’s interest in a trust fund has been assigned, does not destroy the assignee’s rights under the assignment. The pledge still remains the security for the judgment debt.</p> <p>Hence, where the maker of a promissory note assigned as security for payment a contingent remainder in the estate of his ancestor, the title of the assignee under the assignment is superior to that of a subsequent judgment creditor of the assignor, and he is entitled to the trust fund under the assignment, even though an action in this State upon the debt is barred by the Statute of Limitations, and although no action has been brought in this State upon a judgment on the note obtained in the foreign State.</p> <p>The trustee after notice of the assignment held the trust fund as trustee for the assignee.</p>

Appeal by the plaintiff, Rashid Moghabghab, as administrator, 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 12th day of September, 1913, sustaining a demurrer to the amended complaint, as resettled by an order entered in said clerk’s office on the 3d day of December, 1913.

Appeal by the defendant, Rudolph P. Miller, as superintendent of buildings of the borough of Manhattan, 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 14th day of August, 1913, granting relator’s motion for a peremptory writ of mandamus.

<p>Appeal by the plaintiff, James Sullivan, 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 l'Tth day of June, 1913, reversing a judgment of the Municipal Court of the City of New York, fifth district, in plaintiff’s favor.</p>

Appeal by Richard Gr. Page, Jr., and1 another, as executors, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of April, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of April, 1913, denying their motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Timothy Heaphy, from a judgment of the Supreme Court in favor of the defendant Franklin Contracting Company, entered in the office of the clerk of the county of New York on the 19th day of May, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of May, 1913, denying the plaintiff’s motion for a new trial as to said defendant made upon the minutes.</p> <p>Appeal by the defendant The United States Wood Preserving 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 May, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Mary Drucker, as executrix, etc., from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 4th day of February, 1913, upon the decision of the court dismissing the complaint as to the defendant Grodjinski-Davis, after a trial at the New York Special Term,

Appeal by the defendants, Minnie A. E. Cavanagh and another, as executrices, etc., 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 5th day of September, 1913, upon the report of a referee appointed to hear and determine the issues. The judgment was for $2,499.20 and costs, $2,000 of which sum was for services and $499.20 for goods furnished.

Appeal by the defendant, William Rockefeller, 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 23d day of J une, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office 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 23d day of June, 1913, granting plaintiff an extra allowance.

Appeal by the plaintiffs, Joseph Beinkafner and another, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 17th day of January, 1913, affirming a judgment of a justice of the peace in favor of the defendant.

Appeal by the plaintiffs, James J. Rigney and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 30th day of December, 1912, upon the decision of the court dismissing the complaint after a trial before the court without a jury.

Appeal by John N. Carlisle, as Commissioner of Highways of the State of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the coupty of Albany on the 11th day of November, 1913, directing the issuance of a writ of certiorari herein and staying, pending the certiorari, the advertising and reletting of a contract for the improvement of highway No. 5,232 in the county of Suffolk.

Appeal by the defendant, Dominick Di Pasquale, from a judgment of the County Court of Saratoga county in favor of the plaintiff, rendered against him on the 5th day of December, 1913, convicting him of the crime of an attempt to commit murder in the second degree.

Appeal by the plaintiff, The Hammerstein Opera 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 19th day of January, 1914, denying plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiff, Granville Gibbons, 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 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.

Appeal by the petitioner, William W. Farley, as State Commissioner of Excise, 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 October, 1913, denying his petition to revoke the liquor tax certificate herein.

<p>Appeal by the plaintiff, Rudolph A. Witthaus, 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 6th day of August, 1913, upon the decision of the court dismissing the complaint upon the merits after a trial at the New York Special Term.</p>

Separate appeals by the defendants, Oregon Apartments Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of June, 1913, upon the verdict of a jury for $18,250, and also from an order entered in said clerk’s office on the 25th day of June, 1913, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Cora A. Coffin, 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 18th day of December, 1913, resettling an order entered in said clerk’s office on the 16th day of December, 1913.

Appeal by the defendant, George W. Linch, as receiver, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 5th day of August, 1913, upon the verdict of a jury for $1,000, and also from an order entered in- said clerk’s office on the 29th day of August, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Separate appeals by the defendants, Dennis Sweeney and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9 th day of May, 1913, convicting the defendants of the crime of conspiracy.

<p>Partnership — suit' for dissolution and accounting — pleadings — evidence — value of good will — costs — extra allowance.</p> <p>A complaint asking for the dissolution of a partnership and for an accounting, alleged the organization of the partnership, a subsequent termination thereof by agreement, and that the “ assets of the partnership, exclusive of such sums as may be found due it from the defendant,” were of a certain value “and consisted of securities, cash in bank, bills receivable and office furniture.” The answer admitted the organi" zation and termination of the partnership by agreement, and joined in asking for a dissolution and an accounting. S"either the complaint nor answer mentioned the good will of the firm as an asset.</p> <p>Held, on all the evidence, that a judgment in favor of the plaintiff should be reversed in so far as it directs the defendant to pay to the receiver a certain sum as the value of the good will of the partnership.</p> <p>An order granting the plaintiff an additional allowance should also be reversed.</p>

Appeal by the defendant, Frank Steinhart, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of April, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes, as modified by an order entered on the 5th day of May, 1913, and also an appeal from an order entered in said…

Appeal by the defendant, The ¿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 Hew York on the 10th day of December, 1913, after a trial at the Hew York Trial Term before the court without a jury, and also from an order entered in said clerk’s office on the 8th day of December, 1913, granting plaintiff’s motion for an extra allowance.

<p>Appeal by the petitioner, Emil Wolff, from an order of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 2'Tth day of January, 1911, granting letters of administration on the estate of the above-named decedent to the public administrator of' the county of New York.</p>

Appeal by the plaintiff, Larkin' Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of May, 1913, setting aside the verdict of a jury in plaintiff’s favor and directing the dismissal of the complaint, and also from the judgment entered in said clerk’s office on the 23d day of May, 1913, dismissing the complaint upon the said order.

<p>Bills and notes — effect of certification of check procured by fraud and without authority of payee or holder in due course — payment through forged indorsement of payee — liability of drawee.</p> <p>The certification of a check, made not at the instance of the payee, or of any holder thereof in due course, but at the instance of one who has induced the negotiation thereof by fraud and who has not been authorized to represent the payee, does not operate as an assignment of the funds to the credit of the drawer with the bank so as to make it liable as a principal debtor to the one presenting the check for payment.</p> <p>Where the payment of a cheek negotiated and certified under such circumstances has been procured by forging the indorsement of the payee, the bank is still liable to the drawer for moneys on deposit against which the check was charged by the fraudulent certification.</p>

Appeal by the Carnegie Trust Company and George 0. Van Tuyl, Jr., as Superintendent of Banks of the State 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 Hew York on the 28th day of February, 1913.

Appeal by the defendant, Rodgers & Hagerty, Incorporated, 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 April, 1913, upon the verdict of a jury for $1,100, and also from an order entered in said clerk’s office on the 29th day of April, 1913, denying appellant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William. T. Emmet, as superintendent of insurance, 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 18 th day of Hovember, 1913, denying plaintiff’s motion on the pleadings for judgment overruling the demurrer to the complaint.

<p>Appeal by the defendant, George W. Linch, as receiver, 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 18th day of July, 1913, after a trial before the court at the New York Trial Term, a jury having been waived.</p>

Separate appeals by the plaintiff, Joseph Bass, 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 29th day of April, 1913, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, fifth district, dismissing the plaintiff’s complaint in all three actions.

Appeal by the defendant, Whitehall Water Power Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington-on the 10th day of July, 1913, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, John L. Meyers, as comptroller, etc., from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Schenectady on the léth day of November, 1912, granting relator’s application for a peremptory writ of mandamus, and also, as stated in the notice of appeal, from the writ of mandamus entered thereon.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 9th day of December, 1912, upon the verdict of a jury for $9,018, and also from an order entered in said clerk’s office on the 12th day of December, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Albany Steam Trap Company, from a final order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 30th day of June, 1913, confirming the report of commissioners in condemnation proceedings brought to acquire a portion of appellant’s lands for railroad purposes, and also an appeal from the interlocutory judgment herein, entered in the office of the clerk of the county of Albany on…

<p>Appeal by the defendant, Elmer Sherwood, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 8th day January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.</p> <p>After the judgment was entered the original plaintiff, Joseph Wood, died, and Mary Wood was duly appointed his administratrix.</p>

Appeal by the defendant, Merchants’ National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of May, 1912, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Albert Ohellis and another, from á judgment of the County Court of Clinton county, entered in the office of the clerk of said county on the Jth day of December, 1912, reversing a judgment of a justice of the peace in favor of the defendants of no cause of action.

<p>Appeal by the defendant, Eton S. Hobbs, 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, sustaining a demurrer to one of the separate defenses set up in the answer.</p>

Appeal by the plaintiff, The Messiah Home for Children in 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 6th day of December, 1913, denying plaintiff’s motion for judgment on the pleadings, and sustaining the demurrers to the complaint, upon the ground that the same does not state facts sufficient to constitute a cause of action.

Appeal by the plaintiff, Bernice L. B. Lasher, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on the 20th day of October, 1913, directing plaintiff to submit to have an X-ray picture taken of her right foot.

Appeal by the plaintiff, Lillian Page, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Eensselaer on the 15th day of May, 1913, upon the dismissal of the complaint by direction • of the court at the opening.

<p>Appeal by the defendant, Newton M. Collins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of January, 1912, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.</p> <p>This case was transferred to the Third Department from the Fourth Department. (See 159 App. Div. 937.)</p>

Appeal by the. defendant, James H. Farley, 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 21st day of October, 1913, upon the verdict of a jury for $1,000 (reduced by stipulation to $600), and also from an order entered in said clerk’s office on the 17th day of November, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Florence A. Moore, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 14th day of November, 1911, upon the decision of the court after a trial at the Nassau Special Term.

Appeal by the defendant, Fidelity-Phenix Fire Insurance 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 Kings on the 17th day of October, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of October, 1912, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Henry Dominy 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 Suffolk on the 14th day of August, 1912, upon the decision of the court rendered after a trial at the Suffolk Special Term, and also from an order entered in said clerk’s office on the 17th day of October, 1911, denying defendants’ motion to present certain testimony.

Appeal by the plaintiff, Hildreth Granite Company, 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 20th day of October, 1913, dismissing the amended complaint herein on the ground that it does not state facts sufficient to constitute a cause of action, and also an appeal from the judgment entered in said clerk’s office on the same day upon said order.

Appeal by the plaintiff, Thomas J. Oasey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 30th day of April, 1913, upon the dismissal of the complaint by direction of the court at'the close of plaintiff’s case.

<p>Guaranty and suretyship—subrogation of surety to State’s right of a preference — preference as to accrued interest —waiver.</p> <p>A surety of an authorized depositary of State funds, which has paid to the State the amount of its undertaking, is entitled upon the liquidation of the depositary to be subrogated to the State’s right of a preference over general creditors.</p> <p>But such surety is not entitled to a preference for the accrued interest upon the sum paid by it since the date of payment.</p> <p>The surety did not waive its right to a preference by failing to claim the same until after the Court of Appeals had decided that the State was entitled thereto.</p>

<p>See head note in U. 8. F. & Q-. Co. v. Carnegie Trust Co., Wo. 2 {ante, p. 429).</p>

<p>Principal and agent — insurance — right of insurance broker to commissions upon premiums received after cancellation of policies.</p> <p>An insurance broker, under an agreement with general agents of an insurance company, by which they were to pay him a certain percentage of premiums received for insurance issued upon his application, is not entitled to recover from the company commissions on premiums received after the cancellation of such insurance upon the application of the assured, pursuant to a provision of the policies, where it appears that the company acted in good faith.</p>

Appeal by the plaintiff, Emma L. Taylor, from an order of the Supreme Court, made at the Warren Trial Term, and entered in the office of the clerk of the county of Warren on the 4th day of March, 1913, granting defendant’s motion to set aside the verdict of a jury in plaintiff’s favor for the sum of $900, and for a new trial.

Appeal by the defendants, Thomas W. Pangborn and another, 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 27th day of December, 1913, denying defendants’ motion to vacate the service of a summons herein upon the defendants, who, as president and vice-president of a bankrupt corporation, had come within the State to testify at the first meeting of creditors before the United States…

Appeal by the defendant, Walter L. Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 16th day of June, 1913, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 24th day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Annie Davis, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of May, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Lancaster Sea Beach Improvement Company, 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 17th day of July, 1913, upon the decision of the court dismissing the complaint upon the merits after a trial before the court without a jury at the Queens County Trial Term.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p> <p>The parties agreed upon the following facts: The plaintiff was and still is a foreign corporation, duly authorized to transact business in the State of New York. The defendant Borough Bank of Brooklyn was and still is a domestic money corporation, being a banking corporation. George 0. Van Tuyl, Jr., was, prior to the commencement of this action, duly appointed Superintendent of-Banks of the State of New York, entered upon the discharge of his duties and still continues in said office. On or about April 24, 1907, said Borough Bank of Brooklyn was duly designated as a depository for the receipt of canal funds pursuant to the provisions of law. On or ábout April 16, 1909, the United States Fidelity and Guaranty Company executed a bond to the State of New York for the proper security of funds deposited on account of the canal fund of the State of New York, and more particularly guaranteeing that said Borough Bank of Brooklyn would safely keep and well and faithfully account for and pay over all moneys which were then and should thereafter be on deposit in, or held by said bank, or that were due or should become due from said bank, or for which said bank in any way should become hable to the said State. On or about April 7, 1910, under the provisions of the Banking Law of the State of New York, the Superintendent of Banks of the State of New York took possession of the property and business of said defendant corporation, Borough Bank of Brooklyn, and has ever since retained such possession, and at the present time is engaged in the final liquidation of its affairs. On or about April 7, 1910, the State of New York had on deposit with the said Borough Bank $51,814.79 belonging to the canal funds of the State of New York. Thereafter, and on or about April 7, 1910, demand was duly made upon the United States Fidelity and Guaranty Company by the State of New York by reason of its said bond for the payment of the amount on deposit with the Borough Bank of Brooklyn at the time of the failure of said institution, to wit, the sum of fifty thousand dollars with interest at the rate of three per cent from July 1, 1909. Thereafter and pursuant to said demand, and by reason of the execution of said bond, the plaintiff herein was compelled to and did on April 7, 1910, pay to the Treasurer of the State of New York the sum of $51,814.79, representing the amount of the said deposit. Thereafter the State of New York duly executed and delivered to the United States Fidelity and Guaranty Company its assignment in writing wherein there was assigned to the plaintiff herein by reason of the aforementioned payment, all and every claim, demand, and right of action which the People of the State of New York, or the Comptroller of the State of New York, or the Treasurer of the State of New York, or any of them, or the Commissioners of the Canal Fund, then had prior to said payment against the Borough Bank of Brooklyn, by reason of there being on deposit with said Borough Bank of Brooklyn the sum of $51,814.79 belonging to said canal fund, and by reason of said Borough Bank of Brooklyn having failed to pay the same. The original of this assignment was duly filed with the Superintendent of Banks on April 29, 1910. On or about September 30,1910, the Superintendent of Banks wrote to the attorney for the plaintiff herein that the assignment of the State moneys to the United States Fidelity and Guaranty Company had been placed on file in his office, and that the form of said assignment had been approved by the attorney for the Banking Department. The Superintendent of Banks in said communication requested the plaintiff herein to file with him a proof of claim. Pursuant to such request the plaintiff, on or about October 3, 1910, duly filed with the Special Deputy Superintendent of Banks in charge of the Borough Bank of Brooklyn a verified proof of claim wherein it was alleged that the plaintiff herein had by virtue of the aforementioned payment become entitled to all the right, title and interest of the People of the State of New York to the money deposited in said Borough Bank of Brooklyn representing the canal funds of the State of New York. On October 4, 1910, the Superintendent of Banks duly acknowledged receipt of said proof of claim, and thereafter, and on or about November 28, 1910, said Superintendent of Banks in further acknowledgment of said proof of claim set forth that the same had been duly approved as to form, and the amount verified. On or about October 2, 1911, plaintiff, without complaint or protest, received from the Deputy Superintendent of Banks in charge of said Borough Bank of Brooklyn, a dividend of §5,181.47, representing ten per cent of the aforementioned claim. At the time such dividend was received a notice was attached thereto that read as follows:</p> <p>“ New York, N. Y., October 2,1911.</p> <p>“ State of New York,</p> <p>‘ ‘ Banking Department.</p> <p>“ The enclosed check represents a First dividend of 10% of your claim against The Borough Bank of Brooklyn.</p> <p>“Noreceipt is necessary.</p> <p>“HORACE S. ANDREWS,</p> <p>“ Special Deputy Superintendent”</p> <p>Thereafter and on or about January 30, 1913, the plaintiff wrote to the Superintendent of Banks as follows:</p> <p>“On or about April 16th, 1909, the United States Fidelity and Guaranty Company executed a bond on behalf of the Borough Bank of Brooklyn to the State of New York, conditioned as required by law for the proper security of funds deposited in said institution on account of the Canal Fund of the State, of New York.</p> <p>“On or about April 7th, 1910, the U. S. Fidelity and Guaranty Company, as surety, duly paid to the Treasurer of the State of New York the sum of $51,814.79, which amount represented the sum on deposit in the Borough Bank of Brooklyn belonging to the Canal Fund of the State of New York at the time you took possession of said institution.</p> <p>“At or about the date when such payment was made the Treasurer of the State of New York and the Comptroller of the State of New York duly assigned to the U. S. Fidelity and Guaranty Company all their right, title and interest of the State of New York to make claim or demand against the Borough Bank by reason of such deposit. The original of this assignment has already been filed with you, and a claim has been filed with you by reason of such payment having been made, and by reason of the U. S. Fidelity and Guaranty Company having become entitled to all the rights of the State of New York by virtue of such deposit.</p> <p>“ By reason of the aforesaid this Company became entitled to every right, claim or demand of the People of the State of New York, or of the Commissioners of the Canal Fund against the Borough Bank of Brooklyn, which against the said Borough Bank they or anybody on their behalf had by virtue of such deposit.</p> <p>“The claim so filed with you is, according to the law and the statutes of this State, entitled to a preference over the claims and demands of all other creditors of the said Borough Bank.</p> <p>“We wish to call your attention to the foregoing in order that your action in regard to said claim may be governed accordingly.</p> <p>‘ ‘ The United States Fidelity and Guaranty Company demands that you recognize its claim as a preferred claim, and that payment thereof be made out of the first available funds which come into your hands. Upon such recognition by you of such claim as a preferred claim, you may deduct the sum of $5,181.14 heretofore paid.”</p> <p>No demand that the said claim should be a preferred claim had been made by the plaintiff before January 30, 1913, unless the filing of said assignment can be construed in law to constitute such a demand. After reciting the. bond of the surety and payment of the debt, the assignment proceeds:</p> <p>“Now, Therefore, in consideration of the said payment by the United States Fidelity & Guaranty Company of New York, N. Y., to the State of New York, as herein above stated, of the said sum of $51,814.79, the receipt whereof is hereby duly acknowledged.</p> <p>“We, Clark Williams, as Comptroller of the State .of New York, and Thomas B. Dunn, as Treasurer of the State of New York, do hereby transfer, assign and set over to the said United States Fidelity & Guaranty Company, all and every claim, demand and right of action which the People of the State of New York, or we or either of us, or the Commissioners of the Canal Fund, has or had prior to said payment against the said Borough Bank of Brooklyn, arising out of said deposit of said moneys belonging to said fund with said bank and the failure of said bank to pay same.”</p> <p>Thereafter, and on or about February 5, 1913, the said Superintendent of Banks notified the plaintiff herein in writing that he doubted the justice and validity of said claim for preference made by the plaintiff against the Borough Bank of Brooklyn, and that he, therefore, rejected the same. Prior to February 5, 1913, there had been no. rejection by the said Superintendent of Banks of the claim of the plaintiff herein. No part of said claim of $51,814.79 has been paid, except the sum of $5,181.47, and there is now due a,nd owing to the plaintiff herein the sum of $46,633.32, with interest thereon from the 7th day of April, 1910. Liquidation of the said Borough Bank of Brooklyn by the Superintendent of Banks is still in progress, and the assets of the said Borough Bank of Brooklyn have not yet been distributed, and there are in the hands of the Superintendent of Banks assets applicable to the payment of claims amounting to more than the sum of $45,000.</p> <p>The controversy hereby submitted for decision is whether or not upon the foregoing facts the plaintiff is entitled to judgment declaring that it is entitled to the same priority against the assets which were of the Borough Bank of Brooklyn and which are now in the hands of the Superintendent of Banks which the State would have had had the State attempted to collect said sum of $51,814.79, which was paid as aforesaid by the plaintiff to the State under the circumstances hereinbefore stated. The plaintiff claims upon the foregoing facts that it is entitled to judgment establishing its right, both by reason of the assignment from the State and the law applicable to subrogation, that its claim have priority and is entitled to be allowed as a preferred claim and to be paid out of the assets in the hands of the defendant, the Superintendent of Banks, before the payment of other and general claims. The defendants claim that the plaintiff is not entitled to priority and is entitled only to have its claim allowed as a general claim and to continue to receive dividends pari passu with the other general creditors.</p>

Appeal by the plaintiffs, Anna M. Herrmann 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 Queens on the 25th day of September, 1913, granting the motion of the defendant Cabinet Land Company for judgment on the pleadings and for a dismissal of the complaint, and also from the judgment entered in said clerk’s office on the 6th day of October, 1913, upon the said order.

Appeal by the plaintiff, Ida Deitch, 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 9th day of January, 1913, permitting the defendant to amend his answer and to set up as a defense that the plaintiff did not commence this action within five years from the time of the marriage of the parties.

Appeal by the defendants, Vallandigham B. Baggott and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of June, 1913, upon the verdict of a jury, 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 William E. McReynolds and another, as special guardians, etc., from an order of the Surrogate’s Court of the county of Putnam, entered in the office of said surrogate on the 22d day of November, 1913.

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

<p>Charges by the Association of the Bar of the City of New York against the respondent, a justice of the Municipal Court of the city of New York.</p>

Appeal by the plaintiff, Walburga C. Meixel, from a judgment of the Supreme Court in favor of the defendants, entered in the office of -the clerk of the county of New York on the 11th day'of September, 1918, upon the decision of the court after a trial at the New York Special Term.

<p>Husband and wife—divorce — obligation to pay alimony, personal — obligation to pay accrued alimony abates upon death of wife — substitution of executor as plaintiff to enforce payment of alimony.</p> <p>The obligation of a husband to pay alimony for the support and maintenance of his wife is personal and ceases upon her death, and it makes no difference whether alimony has accrued at the time of death or not, for the right to receive being unassignable it is unsurvivable.</p> <p>Hence, the executor of a wife is not entitled to be substituted as plaintiff for the purpose of entering judgment for unpaid alimony.</p>

Appeal by Ralph Scheuer from an order of the Surrogate’s Court of the county of New York, dated the 30th day of June, 1913, adjudging the appellant guilty of contempt of court and committing him to the custody of the sheriff of the county of New York.

<p>Appeal by Ralph Scheuer from an order of the Surrogate’s Court of the county of New York, dated the 20th day of January, 1914, denying a motion for the release of the appellant from the custody of the sheriff of the county of New York, and also from an order of said court dated the 24th day of January, 1914, denying a motion for a reargument of the prior order.</p>

Appeal by William A. Prendergast, comptroller, etc., and 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 12th day of November, 1913, confirming the report of a referee as to certain awards made to unknown owners in the above proceeding.

Appeal by the plaintiff, Allen H. Stem, individually and as surviving partner, 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 5th day of January, 1914, resettling a prior order entered in said clerk’s office on the 30th day of December, 1913, vacating an order for the examination of the defendants before trial. The action was brought for an accounting.

Appeal by the defendant, Mohawk Clothing Company, 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 19th day of January, 1914, striking out defendant’s answer as frivolous.

Appeal by the relator, The McClure Publications, Incorporated, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of - New York on the 6th day of November, 1913, dismissing a writ of certiorari and confirming an assessment upon relator’s capital stock.

Application to discipline the respondent, an attorney at law, for professional misconduct upon the report of an official referee to whom these proceedings were referred.

<p>Application upon report of oficial referee on charges submitted by the Association of the Bar of the City of New York against the respondent, an attorney of this court, of professional misconduct.</p>

Appeal by the plaintiff, Bernard Latiner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of November, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Attorney and client — perjury committed by attorney on the trial of an ¿^action in which he was defendant — Judiciary Law, section 88, construed — duty of official referee.</p> <p>Under subdivision 2 of section 88 of the Judiciary Law, the disbarment of an attorney who has committed a crime is not dependent upon his conviction for the offense, as it is under subdivision 3, and when an attorney is charged with the commission of a crime it is the duty of the Appellate Division to investigate, and if the charge is proved disbar him. The fact that he has not been indicted or convicted is not a defense in proceedings of this character.</p> <p>Hence, where a charge of perjury committed by an attorney on the trial of an action in which he was the defendant has been referred to an official referee, and it does not appear that criminal proceedings have been instituted, or that the attorney asked to have the proceedings suspended pending the investigation of the crime, the referee should not report without giving the accused an opportunity to present his testimony.</p>

Application to discipline an attorney upon report of official referee on charges presented against the respondent by the Association of the Bar of the City of New York.

Appeal by Ricardo Har ganes from a decree of the Surrogate’s Court of the county of Hew York, entered in the office of said surrogate on the 21st day of January, 1914, dismissing the petition herein and disallowing appellant’s claim against the estate of the testator, of which estate claimant was executor.

Appeal by the defendant, Mary Gr. Barth, 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 and dated the 13th day of Hovember, 1913, affirming a judgment of the Municipal Court of the City of Hew York in plaintiff’s favor.

Appeal by the defendant, George Sidney Greenfield, from an order of the Supreme Court, made at the Hew York Special Term and dated the 9th day of January, 1914, as resettled by an order entered in the office of the clerk of the county of Hew York on the 9th day of February, 1914, granting a motion for alimony and counsel fees.

Appeal by the plaintiff, Johannes Alexander Beugger, 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 New York on the 3d day of July, 1912, upon the decision of the court after a trial at the New York Special Term.

<p>Tax—suit to foreclose tax lien, city of New York—pleading — answer — denial of knowledge of assignment of tax lien — defense of payment — denial of plaintiff’s allegation of non-payment —■ city charter construed — acceleration of due date —requisites of complaint in suit to foreclose lien.</p> <p>An answer in a suit to foreclose a tax lien, brought under the provisions of the Greater New York charter, is not frivolous in that it denies that the defendant has any knowledge or information sufficient to form a belief as to the plaintiff’s allegation that the tax lien and moneys due thereunder were assigned to him. This, because such assignment is not necessarily a matter of record.</p> <p>Where the plaintiff positively alleges non-payment of the taxes due on the property, as required by the city charter, the defendant may traverse the same by an allegation that he has no knowledge or information sufficient to form a belief as to the truth of the allegation.</p> <p>As a general rule payment is an affirmative defense and cannot be raised by a mere denial; but where the non-payment of a sum of money is a fact upon which the plaintiff bases his cause of action for the recovery of a separate and distinct sum of money, so that the burden of pleading non-payment is upon him, the fact of non-payment is put in issue by a denial.</p> <p>Sections 1032 and 1035 of the charter of the city of New York, when construed together, provide that the amount of a tax lien shall become due within three years from the date of sale, unless the due date is aecel-erated by default in the payment of interest upon the amount paid for the tax lien for thirty days, or by default for six months after delivery of transfer of tax lien in the payment of any taxes, assessments or water rates, which become a hen on or subsequent to the date mentioned in the advertisement of sale as the date of the tax lien sold.</p> <p>Hence, where three years have not elapsed' since the date of the tax sale, a plaintiff seeking to foreclose a lien must allege facts which, under the statute, accelerate the due date. A mere allegation that the defendants have failed to pay the tax which became due, as required by the city charter, is insufficient to show an acceleration of the due date of the hen.</p> <p>It seems, that properly to allege the acceleration of the due date of the transferred lien the pleader should state: (1) The date specified in the advertisement of sale as the day of the date of the tax transferred to the plaintiff; (2) that on or after that date taxes, assessments or water rates became a hen on the property, and these should be stated specifically; (3) the date of the delivery of the transfer of tax hen sought to be foreclosed with an allegation that subsequent liens have not been paid.</p> <p>It seems also, that the plaintiff should allege that at the time of the sale there were unpaid taxes, assessments or water rates for' which the city had a lien, which it could sell; that the necessary statutory proceedings were duly had prior to the sale; that the holder of the transfer tax lien has elected to consider the amount thereof due in consequence of a failure to pay subsequent taxes, assessments or water rates, for such failure does not ipso facto accelerate the due date, but merely gives the holder of the transfer of the tax hen an option to consider the amount as presently due.</p>

Appeal by Florence Louise Ziegler from a decree of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 17th day of October, 1913, denying petitioner’s application to vacate and set aside the agreement for and the consent of the surrogate to the abrogation of the adoption of said petitioner by William Ziegler, now deceased, and his wife, Electa M. Ziegler.

<p>Insurance against injury and death by accident — reinsurance by original insurer — when policy not renewal of former policy — exceptions as to liability contained in former policies not incorporated into new policies by implication — appeal — final judgment without new trial.</p> <p>Where an insurance company which had issued to the same person for a series of years policies against injury or death by accident, each of which policies was based upon a new application by the insured which became part of the yearly contract, reinsured one-half of the risk with the defendant, another insurance company, each policy was a new, separate and independent contract and not a renewal of the preceding.</p> <p>Hence, where former policies of insurance and reinsurance provided that they did not cover injury or death in the territory of Alaska, that provision'was not carried forward so as to become part of policies of reinsurance subsequently issued to the same person, but containing no exception as to the territory of Alaska, and, therefore, where the original insurer paid the amount of the policy to the beneficiary of the insured, who was killed in Alaska, it can recover of the defendant who reinsured the risk. This is true, although the plaintiff’s letter asking for reinsurance referred to the proposed contract as a “renewal” of a former contract, and although the insured when applying for a prior policy stated that he did not contemplate any special journey or hazardous undertaking.</p> <p>Where basic facts cannot be changed upon a new trial, the appellate court may give final judgment, with costs.</p>

Appeal by the defendants, James 0. Winston and another, copartners, etc., 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 28th day of November, 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 defendants, Springfield, L. I., Cemetery Society 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 5th day of December, 1913, overruling a demurrer to the complaint.

Appeal by the defendant, Antonio Di Marco, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 25th day of August, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Intoxicating liquors — conviction of violation of Liquor Tax Law in city of Mew York and suspension of sentence — no appeal to Supreme Court — constitutional law — uniformity in Liquor Tax Law throughout the State not required.</p> <p>Liquors may be sold only under such conditions as the State may impose, and the Legislature may provide different regulations for. different political divisions of the State.</p> <p>Hence, the provision that a person convicted of a violation of the Liquor Tax Law by the Court of Special Sessions in the city of Hew York whose sentence is suspended cannot appeal to the Supreme Court is valid, although persons similarly situated outside of Greater Hew York, and persons convicted and sentenced in that city, can appeal by virtue of section 750 of the Code of Griminal Procedure, as amended.</p> <p>The right of appeal is not guaranteed by the Constitution, and hence said provision, relating solely to the city of New York, does not impair any rights preserved by the Constitution.</p>

Appeal by the defendant, Jennie V. Kennedy, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of June, 1913, upon the decision of the court after a trial at the Kings County Special Term.

<p>Attorney and client — contract giving attorney percentage of recovery contingent upon success —right of client to substitute attorneys — breach of contract of retainer — measure of damages — Statute of Limitations.</p> <p>A contract of retainer entered into between attorney and client may be annulled by either party for good cause, and may be annulled by the client without cause.</p> <p>But where such retainer entitles the attorney to a specific percentage of the recovery and to nothing if there be no recovery, and, after the attorney has made material progress in the case, the client substitutes another attorney without cause and a recovery is had, the original attorney, or his assignee, may maintain an action for a breach of the contract of retainer. He is not restricted to a recovery upon a quantum meruit. This, because the specific contract of retainer is inconsistent with a recovery upon quantum meruit.</p> <p>The Statute of Limitations on such contract of retainer does not begin to run until the amount of the recovery is determined.</p> <p>Stapleton and Putnam, JJ., dissented, with opinion. ,</p>

Appeal by the defendants, Herbert H. Neale 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 Nassau on the 23d day of December, 1913, as amended by a subsequent order entered in said clerk’s office on the 5 th day of February, 1914, and from so much of the subsequent order as denies defendants’ motion for leave to renew the motion to vacate a judgment.

<p>Costs — suit for injunction and damages — failure to provide for costs on trial of issue as to injunction — costs on subsequent reference to ascertain damages — extra allowance.</p> <p>Where a referee appointed to hear and determine all the issues in a suit for a perpetual injunction and damages, reports that the injunction should be granted and the damages ascertained by a subsequent reference, which report is affirmed by the Appellate Division, which reserves the question of costs upon any further judgment that may be entered, and the same referee is appointed to ascertain the damages, he cannot award costs which he might have previously given under the original order of reference.</p> <p>The awarding of costs of the reference to ascertain the damages is with the court, not with the referee, and where the damages found are substantial, the expense of the reference will be imposed upon the defendant, together with the costs of the second reference. But as the costs of the trial of the issues are not awarded, the court is unable to give an extra allowance under section 3253 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, George E. Blakeslee, 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 21st day of November, 1913.

Appeal by the relator, John Jennings, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of December, 1913, denying relator’s application for a peremptory writ of mandamus.

<p>Motion to discipline attorneys.</p>

<p>Negligence — injury to pedestrian by truck hired to deliver goods — when driver of truck not servant of defendant.</p> <p>Where a pedestrian is injured by the negligent driving of a horse and wagon, which were hired from a truckman by the defendant to deliver goods, the liability of the defendant depends upon whether the contract between the general employer of the driver and the defendant placed the driver under the exclusive direction and control of the defendant as respects the general management of the team, so as to make him the defendant’s servant for the time being.</p> <p>Where in an action to recover for death so caused it appeared that the truckman had several clients other than the defendant and at times used the wagons let to the defendant in their business without special permission; that although an employee of the defendant accompanied the driver, he had only authority to tell the driver where to go to make deliveries; that the defendant had no control over the driver, or power to hire or discharge him and did not pay his wages, it must be held as a matter of law that the driver was not the servant of the defendant. This is true although brass plates bearing the name of the defendant were attached to the wagon.</p>

Motion upon report of official referee upon charges presented by the Association of the Bar of the City of Hew York against the respondent, an attorney at law.

Appeal by the plaintiff, Lewis Nixon, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of October, 1912, upon a dismissal of the complaint by direction of the court, and also from an order entered in said clerk’s office of the 23d day of September, 1912, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Metropolitan Life Insurance Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 18th day of April, 1913, denying the defendant’s motion to dismiss the complaint made at the close of plaintiff’s case and also denying his motion for the direction of a verdict made at the close of the whole case.</p>

Appeal by the defendant, Maurice J. Burstein, 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 13th day of November, 1913, reversing an order of the City Court of the City of New York' setting aside the verdict of a jury in plaintiffs’ favor and dismissing the complaint. The order of the Appellate Term reinstated the verdict of the jury rendered in the City Court.

Appeal by the purchaser, Joseph B. Weed, 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 February, 1914, directing the purchaser to complete his purchase.

<p>Costs — settlement of suit to foreclose tax lien — disbursements for unofficial search — section 3256 of the Code of Civil Procedure construed — allowances upon settlement of suit.</p> <p>Whore a suit to foreclose a tax hen on real property, pursuant to the provisions of the Greater New York charter, is discontinued before issue joined, on condition that the defendant pay costs, the plaintiff is not entitled to charge the defendant for disbursements for an unofficial search or for an examination of title.</p> <p>Certain official searches, and those made by title insurance companies organized under the laws of this State, are authorized by section 3256 of the Code of Civil Procedure, and no disbursements for other searches can be taxed — expressio unius, exclusio alterius.</p> <p>Where a suit to foreclose a lien upon lands is settled before judgment, the plaintiff is only entitled to one-half of the allowances provided by section 8252 of the Code of Civil Procedure, and not the percentage which would have been allowed had the suit been brought to final judgment.</p>

Appeal by the defendant, Mary Elizabeth Truslow, 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 6th day of February, 1914, upon the decision of the court after a trial before the court without a jury at the Kings County Trial Term.

Appeal by the defendant, American Laundry Machinery Manufacturing Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of December, 1913, denying defendant’s motion for a stay of proceedings pending the payment of the judgment for costs, amounting to $127.78, awarded to the defendant herein, in an action in the Supreme Court commenced against the defendant by the…

Appeal by the defendant, New York Central and Hudson Elver 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 New York on the 18th day of June, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day granting plaintiff an extra allowance.

Appeal by the plaintiff, The Tax Lien Company 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 1st day of December, 1913, granting a motion by a purchaser to be relieved of his bid on a sale in foreclosure.

Appeal by the defendants, Jackson Brothers Realty Company 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 Nassau on the 4th day of March, 1913, upon the decision of the court after a trial at the Nassau Special Term.

Appeal by the defendant, Florence A. Hazard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1913, denying the defendant’s motion for . a new trial made upon the minutes.

Appeal by the defendant, Max H. Newman, as receiver, 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 20th day of December, 1912, upon the decision of the court after a trial at the New York Special Term. The judgment reformed an insurance policy on the life of defendant Ira Ulman, who is the husband of the plaintiff.

Appeal by the plaintiffs, Alfred J. Schwabe and another, 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 7th day of January, 1914, permitting defendant to interpose an answer.

Appeal by the defendants, Edward T. Eelgenhauer and others, trading as E. Felgenhauer’s Sons, and another,' from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Kings on the 28th day of May, 1913, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the defendant, The Ossining Printing and Publishing 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 11th day of December, 1913, overruling a demurrer to the complaint.

Appeal by the defendant, Ocean Electric 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 New York on the 29th day of April, 1913, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 16th day of May, 1913, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Ocean Electric 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 New York on the 29th 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 16th day of May, 1913, denying defendant’s motion for a new trial made upon the minutes.</p>

Certiorari issued out of the Supreme Court and attested on the 12th day of December, 1912, directed to Bhinelander Waldo, as police commissioner of the city of Hew York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in removing the relator from the police force of Hew York city.

Appeal by the defendant, Bernard Smith, from an order of the County Court of Dutchess county, entered in the office of the clerk of said county on the 29th day of September, 1913, directing the defendant Charles H. Slocum, as county treasurer, to grant relator’s application for a liquor tax certificate.

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from part of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of February, 1914. The action is brought by the administrator of a servant against a master to recover damages for the death of the servant.

Appeal by the defendant, United States Fidelity and Guaranty 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 29th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of November, 1910, denying defendant’s motion for a new trial made upon the minutes. The jury rendered both a general verdict and a special verdict.

Appeal by Mary E. Day, as executrix, etc., from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 24th day of November, 1913.

Certiorari issued out of the Supreme Court and attested on the 20th day of October, 1913, directed to Maurice E. Connolly, as president of the borough of Queens of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in. dismissing the relator from his office of assistant engineer of the topographical bureau of the borough of Queens.

Appeal by the plaintiff, Anthony 0. Bennett, 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 16th day of April, 1912, upon the dismissal of the complaint by direction of the court at the close of the case.

Appeal by the plaintiff, Louis Goldstein, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of June, 1913, affirming a judgment of the Municipal Court dismissing the complaint, entered in the office of the clerk of said court on the 26th day of March, 1913.

Appeal by the plaintiff, Max Spiegel, from an order of the Supreme Court, made at the New York Special Term and entered in the office of thé clerk of the county of New York on the 11th day of March, 1914, vacating an order of arrest.

<p>Appeal by the plaintiff, Drovers Deposit National Bank of Chicago, 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 28th day of April, 1913, dismissing the complaint upon the decision of the court after a trial before the court, a jury having been waived.</p>

Appeal by the defendants, George D. Cook and another, 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 3d day of June, 1913, directing an accounting by the individual defendants. The judgment was rendered upon the decision of the court after a trial at the New York Special Term.

Appeal by the défendants, The United States Lithograph Company and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of December, 1913, as resettled by an order entered on the 26th day of December, 1913, granting plaintiff’s motion for judgment on the pleadings.

Appeal by the defendants, John T. Rainier and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 6th day of February, 1914, as resettled by an order entered in said clerk’s office on the 1th day of February, 1914, denying their motion for a readjustment of costs.

Appeal by the defendant, Louis Sherry, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of ¡New York on the 3d day of July, 1913, upon the report of a referee appointed to hear and determine the issues. The original plaintiff, Isaac V. Brokaw, died pending the appeal to the Appellate Division, and his executors were substituted in his place.

Appeal by the defendant, Corden T. Graham, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 10th day of July, 1913, upon the decision of the court after a trial at the Monroe Special Term for the hearing of equity causes.

Separate appeals by the defendant Julia E. Ferguson and the defendant John Henry Kruse, individually and as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 18th day of November, 1912, upon the decision of the court after a trial at the Erie Special Term.

Appeal by the defendant, Philip Bernstein Sick and Benefit Society, 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 18th day of November, 1913, granting relator’s motion for an alternative writ of mandamus requiring appellant to reinstate relator to membership in its society, or to show cause why the command of the writ should not be obeyed and to make return pursuant to law.

Appeal by the plaintiff, John B. Owens, from an interlocutory judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 14th day of November, 1913, sustaining a demurrer interposed by the defendant Blackburn to the first cause of action set forth in the complaint on the ground that the facts alleged are insufficient to constitute a cause of action.

Appeal by the plaintiff, John B. Owens, from an interlocutory judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 14th day of November, 1913, sustaining a demurrer interposed by the defendant' Blackburn to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

<p>Railroads—negligence causing death—action against foreign corporation operating portion of its line within this State — conflict of laws — action by non-resident plaintiff—when cause should be tried in foreign tribunal —jurisdiction of our courts.</p> <p>It seems, that a complaint in an action to recover for the death of an employee of a foreign railroad company, alleged to have been caused by negligence, is fatally defective in not alleging the statute of the foreign State in which the accident occurred and under the laws of which the defendant was incorporated, although the railroad company operates part of its line within this State.</p> <p>Although the fact that a foreign railroad corporation operates a portion of its line within this State may give our courts jurisdiction of an action against it for negligence causing death, the complaint must allege that the defendant for the purpose, among others, of suing and being sued is a domestic corporation. Hence, it seems, that if the complaint merely alleges that the defendant is a foreign corporation, it fails to state a cause of action for negligence causing death, under section 1780 of the Code of Civil Procedure as it existed in October, 1908, at which date the action was commenced.</p> <p>Where a railroad company incorporated under a foreign law operates a portion of its line within this State, service of process on its secretary within this State confers jurisdiction of an action to recover for negligence causing death brought by a resident plaintiff.</p> <p>But where the accident occurred in the foreign State where the defendant was incorporated, in which State the decedent resided and the plaintiff now resides, the cause should be tried in that State. Although the courts of this State may have jurisdiction, they are not obliged to exercise it under such circumstances.</p>

Appeal by Mary U. Hoffman, individually and as executrix, etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 28th day of October, 1913, denying an appeal from an order fixing and assessing a transfer tax herein made and entered on the report of the appraiser duly appointed, and affirming said order.

<p>Appeal by the defendant, Lillian E. O’Brien, from a judgment of the Supreme Court' in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 6th day of October, 1913, upon the decision of the court after a trial at the New York Special Term.</p>

<p>Appeal by the defendant, Dean 0. Osborne, from so much of an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 26th day of December, 1913, as affirms a judgment of the City Court of the City of New York in favor of the plaintiffs as modified.</p>

Appeal by the defendant, Great Atlantic and Pacific Tea 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 29th day of December, 1913, granting plaintiff’s motion for leave to serve an amended complaint setting up a second cause of action.

Appeal by the defendant, H. 0. & A. I. Piercy Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of June, 1913, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 27th day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.

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

Appeal by the plaintiffs, D. Everett Damon and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of February, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiffs’ case.

<p>Appeal by the plaintiffs, Henry F. Quick and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 1st day of December, 1913, upon the decision of the court after a trial at the Kings County Special Term.</p>

Appeal by Mary A. Abbot, as administratrix, etc., of William Vincent Dee, deceased, from an order of the Surrogate’s Court of Kings county, entered in said court on the 10th day of December, 1913. Order of the Surrogate’s Court of Kings county affirmed, without costs. No opinion. Jenks, P. J., Thomas, Rich and Stapleton, JJ., concurred; Burr, J., read for reversal.

Appeal by the defendant, The State of New York, from a judgment and determination of the Board of Claims in favor of the claimant, entered in the office of the clerk of the Board of Claims on the 4th day of September, 1913, for $654.50.

<p>Appeal by the defendant from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 9th day of Juné, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 13th day of June, 1913, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>Judgment and order affirmed, with costs, All concurred, except Woodward, J., who dissented in opinion.</p>

Appeal by the defendant 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 $1,000, and also from an order entered in said clerk’s office on the 12th day of March, 1913, denying the defendant’s motion for a new trial made upon the minutes. Judgment and order affirmed, with costs.

<p>Appeal by the defendant Empire Trust Company, on behalf of certain bondholders, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant William J. Delaney, as receiver, etc., entered in the office of the clerk of the county of Saratoga on the 3d day of February, 1913, as adjudges that the respondent is entitled to all of the right, title and interest of the defendant Saratoga Holding Company in certain property described in the interlocutory judgment and that the lien of the mortgage held by the Empire Trust Company, as trustee, is limited to the sum of $8,407.70, with interest. The interlocutory judgment was entered on the decision of the court after a trial at the Schenectady Special Term. Also an appeal from the final judgment in said action, entered in the office of the clerk of the county of Saratoga on the 8th day of May, 1913, upon the decision of the court after the filing of the report of the referee appointed by the interlocutory judgment appealed from. Appeal by the defendant Charles H. Bunn from so much of the said final judgment above appealed from as directs the referee in this action to make certain payments. Appeal by William J. Delaney, as receiver, etc., from so much of the interlocutory judgment entered in the office of the clerk of the county of Saratoga on the 3d day of February, 1913, as decrees that the Empire Trust Company has a lien on the fund, and also from so much of the final judgment entered in said clerk’s office on the 5th day of May, 1913, as directs the referee herein to make certain payments. The action is brought for the partition and division of certain real and personal property.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 17th day of January, 1913, denying a motion for a new trial on the ground of newly-discovered evidence.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Hew York county clerk’s office on the 5th day of June, 1913, on a verdict and from an order entered on the 10th day of June, 1913, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Hew York county clerk’s office on the 19th day of April, 1913, on a verdict and from an order entered on the 31st day of March 1913, denying a motion for a new trial.</p>

Appeals by the plaintiffs, Douglas Smith and others, from four orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of September, 1913, sustaining demurrers to the complaint interposed by four of the defendants herein.

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 29th day of Hovember, 1913, denying a motion for a temporary injunction, and an order entered on the 22d day of December, 1913, denying a motion for a reargument.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 14th day of January, 1914, denying a motion for examination before trial.</p>

<p>Appeal from an order of substitution, entered in the Hew York county clerk’s office on the 22d 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 18th day of Hovember, 1913, granting a motion for leave to intervene.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 23d day of December, 1913, denying a motion to declare action abated, or to cancel the bond given to discharge an attachment.</p>

<p>Appeal from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of November, 1913, denying a motion to vacate an attachment.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 29th day of December, 1913, in so far as it denies defendant’s motion to amend judgment of separation so as to relieve him from payment of alimony accruing subsequent to the time the application was made.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 23d day of May, 1912, dismissing the complaint at the close of the plaintiff’s case upon a trial at Trial Term.</p>

<p>Process — garnishee execution.</p>

<p>Appeal from an order of the Appellate Term, entered in the Hew York county clerk’s office on the 23d day of October, 1913, affirming an order of the City Court granting a motion for judgment and dismissing the complaint for failure of plaintiff to reply to separate defense contained in the answer.</p>

<p>Appeal from a judgment of the Supreme Court entered in the New York county clerk’s office on the 14th day of April, 1913, upon the verdict of a jury, and also from an order entered on the 19th day of April, 1913, denying a motion for a new trial.</p>

<p>Crime — evidence — confession.</p>

<p>Charges against an attorney by the Hew York County Lawyers Association.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Hew York county clerk’s office on the 28th day of December, 1912, upon the verdict of a jury, and from an order entered on the 7th day of January, 1913, denying a motion for a new trial.</p>

<p>Appeal from orders of the Supreme Court, entered in the New York county clerk’s office on the 6th and 14th days of June, 1911, respectively, granting a motion to set aside a verdict and for a new trial.</p>

Appeal by the defendant, Thomas E. Colby, 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 22d day of December, 1913, granting an injunction pendente lite.

Appeal by the defendant, Thomas E. Colby, 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 22d day of December, 1913, granting an injunction pendente lite.

Appeal by the defendant from a judgment of the Special Term, entered in the office of the clerk of the county of Westchester on the 19th day of May, 1913, in favor of the plantiffs.

Appeal by the plaintiff from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 18th day of December, 1913, denying his motion for judgment on the pleadings. Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Thomas, Rich and Putnam, JJ., concurred; Burr, J., read for reversal.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 25th day of January, 1913, in favor of the plaintiff, and from an order, entered in said clerk’s office on the 29th day of January, 1913, denying its motion for a new trial.

Appeal'by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 19th day of February, 1913, in favor of the defendant, and from an order entered in said clerk’s office on the 13th day of March, 1913, denying his motion for a new trial.

<p>Appeal by the defendants in the above actions, Edward Bailey and Millbourne Realty Company, from interlocutory judgments of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of August, 1913, overruling demurrers to the amended complaints herein.</p>

<p>Appeal from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Queens on the 30th day of October, 1913, confirming the report of a referee.</p>

Appeal by Cornell Bros., judgment creditor, from an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 14th day of January, 1914.