Volume 165 — New York Appellate Division Reports

<p>Malicious prosecution — order of arrest — sufficiency of affidavit — malice and want of probable cause.</p> <p>An affidavit upon an application for an order of arrest in an action for malicious prosecution should state facts showing malice and absence of probable cause.</p> <p>A mere statement that the magistrate dismissed the criminal proceeding against the plaintiff is not per se prima facie evidence of the want of probable cause, and where no other facts to establish malice and absence of probable cause are stated the order of arrest will be vacated.</p> <p>Probable cause for arrest is not necessarily inconsistent with a finding that there is not probable cause of guilt.</p>

Appeal by the plaintiffs, Thomas Larsen 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 13th day of August, 1914, denying plaintiffs’ motion for judgment on the pleadings, after defendant had demurred to the complaint.

Appeal by the defendant, Julia Watt Lawrence, 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 9th day of February, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of February, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by .Josephine Stein Uterhart and another from, two 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 18th day of November, 1913, denying their separate motions for an order revoking, canceling and setting aside any provisions heretofore made for the compensation of Emanuel J. Myers, as guardian ad litem herein, and requiring him to make restitution of the amount already received by…

Appeal by the defendant, Henry P. Johnston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 22d day of December, 1913, upon the report of a referee.

Appeal by the plaintiff, William W. Walling, 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 20th day of December, 1913, upon the dismissal of the complaint at the close of the case by direction of the court upon a trial before the court and a jury at the Queens County Trial Term.

Appeal by the defendant, Frank B. Stafford, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 24th day of September, 1914, denying defendant’s motion for an order directing that the issue of adultery herein be tried by a jury, and settling the issue for such trial.

<p>Partnership — action for an accounting — parties — evidence.</p> <p>In an action for a partnership accounting it appeared that plaintiff and defendant undertook a joint adventure involving the leasing for a term of years and management of a theatre; that, although there was no formal or written articles of copartnership, it was understood that the parties were to have equal shares in the enterprise, and later on each permitted other persons to share his interests; that the active management of the enterprise was left in the hands of the defendant, who, in order to avoid personal responsibility, organized a corporation to execute the lease and carry on the theatre, but no stock was ever issued to the plaintiff, and that certain payments had been made to the plaintiff on account of profits but not as dividends upon any shares in the corporation.</p> <p>Evidence examined, and held, that a judgment dismissing the complaint should be reversed and an interlocutory judgment for an accounting granted.</p> <p>Although another person may have been interested as a partner with the defendant, and, hence, a proper party to the action, a failure to join him was not a proper ground for a dismissal of the complaint, as he may be brought in at any time, even after judgment.</p>

Appeal by the defendant, Clyde Steamship 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 8th day of October, 1914, granting plaintiff’s motion to remove the action from the City Court of the City of New York to the Supreme Court of the State of New York.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. In November, 1909, Dr. Joslen of San Francisco arranged with Dr. Talcott of New York to accept a position with the former in California, Joslen agreeing to furnish transportation for Talcott and his wife from New York to San Francisco, and to pay other necessary traveling expenses.

<p>Appeal by the defendants, Edward B. Boynton and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on or about the 5th day of August, 1914, denying their motion to strike certain allegations from the amended complaint as irrelevant, redundant and scandalous.</p>

Appeal by the defendant, Van Wagoner-Linn Construction 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 22d day of November, 1913, upon the report of a referee appointed to take and state the account of the defendant herein pursuant to an interlocutory judgment. The judgment confirmed the referee’s report and overruled the defendant’s motion to vacate the interlocutory judgment.

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

<p>Executors and administrators—attachment against foreign administratrix unauthorized — Code of Civil Procedure, section 1836a, construed.</p> <p>Section 1836a of the Code of Civil Procedure, providingthat “An executor . or administrator duly appointed in any other State, Territory or district of the United States, or in any foreign country, may sue or be sued in any court in this State in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may sue or be sued,” does not authorize a writ of attachment against an administratrix appointed in a foreign State, so as to permit the seizure of personal property belonging to the estate located in this State.</p>

Appeal by the defendant, Samuel Strauss, from an order of the County Court of Nassau county, entered in the office of the clerk of said county on the 25th day of July, 1914.

<p>Crime —conspiracy by State road contractor and State representative in charge of work to defraud People — evidence sustaining conviction —liability of corporation for conspiracy—evidence of conversation over telephone — separation of jury after charge by court.</p> <p>Upon the trial of a contracting company engaged in building a State road and its president and a representative of the State in charge of the work, under an indictment charging them with conspiring to cheat and defraud the State, it appeared that the representative of the State was a former employee of the contractor, and had been appointed at the request of its president. Evidence examined, and held, that a conviction of both defendants should be affirmed.</p> <p>A corporation may be indicted and convicted for conspiracy and similar crimes of which a specific intent is the necessary and controlling element.</p> <p>It is not necessary to furnish independent proof of a conspiracy before acts can be proven in furtherance of it. The same evidence may establish both the conspiracy and the overt acts charged, and it may be wholly circumstantial.</p> <p>Testimony of a representative of the State as to a telephone conversation with the president of the contractor, requesting the appointment of the other defendant as a representative of the State, and also as to the receipt of a letter the day after the conversation confirming the same, was competent.</p> <p>The fact that the court, immediately after finishing his charge to the jury, directed that they be divided into two groups, each in charge of a court officer, and permitted them to be taken to nearby hotels for dinner, was not prejudicial to the defendants. Such a separation does not come within the contemplation of the statute, which requires that the jurors be kept together after the case has been finally submitted.</p>

<p>Crime—forgery by attorney of assignment of bonds and mortgages placed in his possession for sale — suit to set aside assignments — estoppel in pais — liability where one of two innocent persons must suffer.</p> <p>A trustee who places bonds and mortgages in the possession of his attorney, who forged assignments thereof, and also as notary public made false certificates of acknowledgment, should not be held liable for the misconduct of his attorney, and is entitled to have the assignments set aside and the record thereof canceled.</p> <p>The trustee was not concluded by an estoppel in pais.</p> <p>The doctrine that where one of two innocent persons must suffer from the act of a third person, the loss must fall upon him who has enabled the third party to do the injury, is inapplicable to cases where the wrong was accomplished through the instrumentality of a criminal act.</p>

Cross-appeals by the plaintiff, Violet M.' Turner, and the defendant, Herbert Gr. Woolworth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerkmf the county of Kings on the 5th day of January, 1914, upon the decision of the court after a trial before the court without a jury. •

<p>Master and servant — negligence — injury to employee while assisting in moving motor engine by portable crane to assembly room — safe place to work — difference in floor levels — duty of master to change structural condition of building.</p> <p>In an action for personal injuries it appeared that while the plaintiff, at the direction of the defendant’s foreman, was assisting in moving a motor engine by means of a portable crane from the testing room to the assembly room, his finger was caught by the swaying of the motor, which swung in unison with the crane’s movements. Although a piece of wood had been laid at the entrance to the assembly room, there was still a difference of four inches in the adjoining floor levels. Evidence examined, and held, that the question whether or not the defendant had furnished the plaintiff with a reasonably safe place to work was one of fact for the jury.</p> <p>While ordinarily an employer is under no duty to change the structural condition of the building in which the employee accepts employment, there is an obligation to protect the employee when the nature of the work makes that structural condition dangerous.</p>

Appeal by the defendant, New York Life Insurance and Trust 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 30th day of September, 1914, bringing in Santiago P. Cahill, receiver, as a party defendant herein.

Appeal by the plaintiff, Louise Ellis, as sole executrix, 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 New York on the 24th day of June, 1914, denying a motion for leave to issue execution against the income from a trust fund.

Appeal by the defendant, Bon Bon Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of March, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of March, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Frank Gr. Webster 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 10th day of July, 1914, overruling a demurrer to the second amended complaint.

Appeal by the defendant, Assets Realization 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 10th day of July, 1914, overruling its demurrer to the second amended complaint herein.

Appeal by the defendant, Illinois Surety 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 26th day of March, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Hugh Charles George Pullen and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of September, 1914, denying their motion to strike out certain paragraphs of the amended answer as irrelevant and redundant.

<p>Appeal by the plaintiffs, George William Kemp and Edward Kemp, individually and as trustees, etc. (George William Kemp having died, his executors were substituted as parties in Ms place), and also by the defendants George William Kemp and Edward Kemp, individually and as trustees, etc., and others, from part of 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 18th day of May, 1911, upon the report of a referee appointed to hear and determine the issues.</p>

Appeal by the defendant, Arthur J. Sanville, 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 6th day of October, 1914, overruling a demurrer to the complaint.

<p>Insurance — liquidation of surety company, under section 63 of the Insurance Law — when claims against assets not contingent — discretion of court to grant claimants opportunity to perfect their claims.</p> <p>Claims against the assets of a surety company, which has been adjudged insolvent under section 63 of the Insurance Law, for damages for accidents which happened prior to the date of the adjudication, and which had not been actually satisfied by the assured prior to said date, although some of them had been reduced to judgment from which appeals were contemplated, and in others suits were pending, which claims are based upon policies of accident insurance, providing that the surety company shall, at its own cost, defend in behalf of the assured any suit, unless it shall elect to settle; that the assured shall not, without the previous consent of the company, incur any expense or settle any claim or interfere in any negotiations for settlement, and that no action shall lie against the surety company, unless brought by the assured to reimburse himself for moneys actually paid in settlement of a claim against the assured, should not be rejected by the Superintendent of Insurance.</p> <p>Such claims were not contingent, because when the surety company was adjudged insolvent its business came to an end, and it became impossible for it to perform its obligations under the policies.</p> <p>It seems, that subdivision 3 of section 63 of the Insurance Law, providing that “ The rights and liabilities of any such corporation and of its creditors, policyholders, stockholders and members, and of all other persons interested in its assets shall, unless otherwise directed by the court, be fixed as of the date of the entry of the order directing the liquidation of such corporation * * confers upon the court discretion to grant such claimants an opportunity to perfect their claims into debts before excluding them from participation in the assets of the company.</p> <p>The word “ liabilities," as used in the statute, should not be construed to mean “ debts.”</p>

Appeal by Isaac Siegel, intervenor, 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 30th day of November, 1914, directing the opening of the ballot boxes in certain election districts in the county of New York and the removal therefrom of certain ballots.

<p>Appeal by the defendant, Edward W. Wilson, 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 Hay, 1914-, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of Hay, 1914, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>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 12th day of March, 1914, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 9th day of March, 1914, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Knox Terpezone 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 New York on the 1st day of September, 1914, granting plaintiff’s motion for an order overruling their demurrer to the amended complaint.

Appeal by the plaintiff, B. Altman & 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 5th day of November, 1914, denying the plaintiff’s motion for a temporary injunction.

Appeal by the defendant, Isidore D. Morrison, as assignee, 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 15th day of October, 1914, requiring him to schedule the petitioner as a preferred creditor in this proceeding.

Appeal by G-eorge L. Doty from an order of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on'the 26th day of June, 1914, denying his motion for leave to withdraw his objection to the probate of the will of Henry Poillon Dunham, deceased, and to join in the petition for the probate thereof.

Appeal by the plaintiff, Clarence W. Gormly, 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 26th day of October, 1914, requiring him to furnish a bill of particulars.

<p>Sales—implied warranty under subdivision 1 of section 96 of the Personal Property Law — when defense of implied warranty not established.</p> <p>In order to establish an implied warranty under subdivision 1 of section 96 of the Personal Property Law, providing that “Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required and it appears that the buyer relies on the seller’s skill and judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose,” it must appear not only that the seller was informed expressly or by implication of the purpose for which the goods were purchased, but also that the buyer relied on the seller’s skill and judgment.</p> <p>Where in an action by a jobber to recover for leather sold through his agent to the defendant, a shoe manufacturer, it appears that the seller knew that the leather was purchased to be made up into shoes, but there is no allegation in the answer or evidence and no implication arising from the circumstances or relations of the parties that the defendant relied on the skill and knowledge of the plaintiff’s salesman, there is a failure to establish an implied warranty under the statute.</p>

Appeal by the defendants, Century Holding 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 5th day of February, 1914, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the plaintiff, The Richardson Press, 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, 1914, 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.</p>

Appeal by the relator, John J. Murphy, 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 June, 1914, as resettled by an order entered therein on the 22d day of June, 1914, denying relator’s motion for a writ of mandamus herein.

Appear by the defendants, Emily Eueger and another, individually and as executrices, 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 Kings on the 2d day of June, 1914, upon the decision of the court after a trial at the Kings County Trial Term, a jury having been waived.

Appeal by Henry Doscher and others, as executors, etc., from a decree of the Surrogate’s Court of the county of Kings, entered in the offi.ce of said Surrogate’s Court on the 3d day of July, 1914, revoking the letters testamentary heretofore issued to the appellants.

<p>Appeal by the Public Service Commission for the First District of the State of New York 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 26th day of July, 1913, confirming the report of commissioners of appraisal herein as to damage parcel No. 22.</p>

Appeal by the plaintiff, De Kalb Holding Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of March, 1914, dismissing the complaint upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the plaintiff, Henry N. Steinert, as receiver, 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 7th day of July, 1914, denying the plaintiff’s motion for judgment on the pleadings.

Appeal by the relator, William J. McKeon, from a judgment and enrollment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of March, 1912, dismissing an alternative writ of mandamus herein, with notice of an intention to bring up for review an order entered in said clerk’s office on or about the 30th day of January, 1912, granting the defendant’s motion for judgment on the merits herein and dismissing…

Appeal by the defendant, the Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 26th day of March, 1914, upon the decision of the court after a trial at the Queens County Special Term. The judgment restrained defendant from removing a certain switch and side track.

Appeal by the defendant, The Coney Island and Brooklyn Railroad Company, from a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 26th day of February, 1914, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the 24th day of February, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William H. Colgate, 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 5 th day of June, 1914, overruling his demurrer to the complaint, and also from an order entered in said clerk’s office on the 3d day of June, 1914, granting the plaintiff’s motion for judgment on the pleadings after the demurrer to the complaint had been made.

<p>Appeal by the defendants, Steeplechase Park 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 Kings on the 3d day of November, 1913, upon the decision of the court after a trial at the Kings County Special Term. (82 Misc. Rep. 247.)</p> <p>The judgment directed the removal of certain encroaching structures from the foreshore of Coney Island.</p>

<p>Appeal by the defendant, Hans P. Pedersen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of June, 1914, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 13th day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the New York and Queens Electric Light and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of February, 1914, upon the verdict of a jury, for $7,000, and also from an order entered in said clerk’s office on the 26th day of February, 1914, denying the defendant’s motion for a new trial made upon the minutes.

<p>Principal and agent—action by salesman for wrongful discharge — evidence insufficient to establish cause of action.</p> <p>Where, in an action by a salesman for damages for alleged wrongful discharge, it appears that the contract of employment gave defendant the right to discharge plaintiff at any time if his “services proved unsatisfactory,” and the uncontradicted evidence shows that the plaintiff was discharged because his services were unsatisfactory, the complaint should be dismissed.</p>

Appeal by the defendants, Nicholas Bruning and others, copartners, 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 28th day of October, 1914, denying a motion to vacate an order for the examination of the defendant Nicholas Bruning before trial.

Appeal by the defendant, Degnon 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 3d day of February, 1914, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 4th day of February, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Surrogate’s Court—jurisdiction to determine ownership of property not in possession of testatrix at time of her death.</p> <p>The jurisdiction of the Surrogate’s Court to distribute the estate of a decedent, and to determine contested claims, does not include the power to try the question of title to personal property not in the possession of a testatrix at the time of her death.</p> <p>Hence, the Surrogate’s Court has no jurisdiction upon an accounting by executors to determine the ownership of personal property alleged to belong to an estate, but which, in fact, was in the possession of one of the executors at the time the testatrix died.</p>

Appeal by the defendant, Ernest E. Ayrault, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 21st day of September, 1914, upon the decision of the court after a trial at the ¡New York Special Term, directing an accounting.

<p>Evidence — action for injuries sustained while alighting from street car — self-serving declaration — report of accident by motorman.</p> <p>In an action "to recover for personal injuries alleged to have been sustained by the plaintiff while getting off one of defendant’s cars, it is reversible error to allow the admission in evidence of a written report of the accident made by the motorman on the evening following the accident, as it is a self-serving declaration of defendant’s representative.</p>

Appeal by the defendant, Crawford-Phimmer 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 6th day of March, 1914, setting aside the verdict of a jury in plaintiff’s favor as inadequate, and granting a new trial.

Appeal by the defendants, Louis Goldsticker and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of May, 1914, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the defendant, Augusta-Aiken Railway and Electric Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of September, 1914, granting plaintiffs motion for judgment on the pleadings after a demurrer had been interposed to the complaint.</p>

Appeal by the defendant, Emma Marie Betts, 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 or about the 18th day of September, 1914,' denying* her motion to open her default herein.

<p>Will — construction — specific legacy.</p> <p>A bequest of 11 the mortgage and bond for $10,000, now held by me against premises on 176th Street,” followed by several general legacies payable out of the estate, constitutes a specific legacy, which can only be satisfied by delivering to the legatee the identical thing given and, hence, fails where the decedent never owned such bond and mortgage.</p>

Appeal by the defendant, Armstead W. Field, from a deter mination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of March, 1914, reversing an interlocutory judgment of the City Court of the City of New York, and sustaining demurrers to the first, third and fourth defenses set up in the answer.

Appeal by the defendant, John Wanamaker, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of New York on the 17th day of April, 1911, upon the verdict of a jury for $3,500, and also from an order entered in 'said clerk’s office on the 21st day of April, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Thomas Healy, 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 19 th day of March, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lena Scheidecker, individually and 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 New York on the 27th day of May, 1914, upon the decision of the court after a trial at the New York Special Term. The judgment set aside a conveyance upon the ground of fraud.

Appeal by the defendant, William W. Colne, a member of the board of county canvassers of Kings county, 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 23d day of November, 1914, as resettled by an order entered in said clerk’s office on the 2d day of December, 1914, granting relator’s motion for a peremptory writ of mandamus.

Appeals by Charles F. Murphy and William B. Carswell from parts of an order of the Supreme Court, entered in the office of the clerk of the county of Kings on the 10th day of December, 1914.

Appeal by Georgianna B. Wright and others from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 26th day of June, 1914, dismissing an appeal from an order adjudging that certain transfers here are subject to taxation and fixing the amount of the transfer tax thereon and affirming said order.

Appeal by the defendants, Charles H. Ingalls 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 Richmond on the 6th day of May, 1914, denying defendants’ motion for judgment on the pleadings herein, after answer had been made.

Appeal by the defendants, The Securities Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of April, 1914, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the plaintiff, William W. Farley, as State Commissioner of Excise, 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 2d day of July, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1914, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Mortgage—foreclosure —sufficiency of referee’s deed, where name of grantee written in after execution thereof—refusal to complete purchase—judgments against owner of equity of redemption — right of - purchaser to counsel fee for examination of title.</p> <p>Purchasers at a mortgage foreclosure sale are not bound to accept a deed in which the grantee’s name was written by a person without authority after the execution and acknowledgment thereof by the referee, and are entitled to be relieved from the completion of then purchase, and to have their deposit returned to them with interest.</p> <p>An objection by the purchasers that there were judgments of record against one of the owners of the equity of redemption was not valid, in view of an offer to allow the retention or deposit of a sum sufficient to discharge the judgments and the expense of procuring satisfaction pieces.</p> <p>Under the circumstances of this case, the purchaser should not be allowed a counsel fee for the examination of the title to the premises.</p>

<p>Sale — action for purchase price — defense—right to return goods if unsatisfactory — representation as to quality of material—implied warranty as to quality under section 96 of the Personal Property Law.</p> <p>Action to recover the purchase price of a waist and dress. Evidence examined, and held, insufficient to support the defense that there was an agreement that if the goods were unsatisfactory to the purchaser they could be returned, or that the goods were represented to be of high grade material and quality.</p> <p>The evidence was also insufficient to establish an implied warranty which survived acceptance that the goods were reasonably fit to wear under section 96 of the Personal Property Law.</p> <p>A mere purchase from a retail dealer does not sufficiently raise a presumption that the buyer relied on the skill or judgment either of the seller or his salesman, within the meaning of the statute.</p> <p>In a sale of merchandise there is no warranty that the goods are the best that can be furnished in the market at the price paid for them, or that the material is the best that can be put into the articles for the price.</p>

<p>Appeal by James Gordon Bennett from part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of June, 1913, sustaining objections to the confirmation of the supplemental and amended report as to assessments for benefit herein, and returning said report to the commissioner of assessment for revision and correction, in accordance with the opinion of the court.</p>

Appeal by the defendant, Bertha Salvin, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of October, 1914, resettling a prior order and denying her motion for judgment on the pleadings made after a demurrer had been interposed to the complaint.

Appeal by the defendant, Bertha Salvin, 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 15th day of October, 1914, resettling a prior order and denying her motion for judgment on the pleadings made after a demurrer had been interposed to the complaint.

Appeal by the plaintiff, Tenement House Department of the City of New York, 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 1st day of June, 1914, affirming a judgment of the Municipal Court of the City of New York dismissing the complaint.

Appeal by the defendant, Lewis Nixon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of May, 1914, upon the decision of the court after a trial before the court, a jury having been waived, and also from an order entered in said clerk’s office on the 14th day of May, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, New Yorker Staats-Zeitung, from an order of the Supreme Court, made at the New York Special Term and entered in the office- of the clerk of the county of New York on the 23d day of October, 1914, overruling its demurrer to the amended complaint and granting plaintiff’s motion for judgment on the pleadings. This is an action for libel. The plaintiff pleaded nine separate causes of action.

<p>Insurance — undertaking by municipal contractor — reinsurance after insolvency of original insurer — liability of contractor to assignee of surety for premiums — evidence.</p> <p>Where a municipal contractor procures a bond from a surety company for the proper performance of his contract, and the surety company assigns its indemnity agreement together with all premiums due or to become due to it for having executed the bond to another surety company, which insures the first company against liability on the bond, the assignee may recover from the contractor for premiums which became due prior to the insolvency of the assignor, which is at the time of the action in the process of liquidation by the State Insurance Department.</p> <p>Evidence tending to show that the defendant executed another bond at the request of the municipality was properly excluded.</p>

Appeal by the defendant, The Barber Asphalt Paving Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of November, 1914, overruling a demurrer to the complaint, and also as stated in the notice of appeal from the court’s decision.

Appeal by the plaintiff, Blanche B. Neukirch, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1914, overruling her demurrer to the separate defense contained in the amended answer of the respondent, the issues arising on the demurrer having been brought on and tried as a contested motion.

<p>Appeal by the plaintiff, George 0. Van Tuyl, Jr., as Superintendent of Banks of the State of Hew York, 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 3d day of October, 1914, overruling his demurrer to a counterclaim contained in the answer of the defendant Liston L. Lewis.</p>

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

Appeal by Lester D. Wise, executor and legatee, etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on or about the 4th day of May, 1914, adjudging that decedent died a resident of the State of New York.

Appeal by the defendant, Francesco Allavena, from so much of an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 16th day of November, 1914, granting a motion to vacate an attachment, as permits the plaintiff to cure defects in the papers upon which such attachment was issued by filing with the clerk of the court additional affidavits.

<p>Attorney at law disbarred—professional misconduct—misappropria- . tion of money belonging to client.</p> <p>Attorney at law disbarred for professional misconduct in misappropriating moneys intrusted to him by clients.</p>

<p>Appeal by the defendant, New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6 th day of March, 1914, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 18th day of March, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Harry Allen from part of an order of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the 6th day of December, 1913, confirming the report of a referee.

Appeal in the first action by the defendant, Clarence A. Crane, from a judgment of the Court of Special Sessions of the city of New York, Part I, rendered against him on the 9th day of December, 1914, convicting him of a misdemeanor in violating section -14 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36).

Appeal by the plaintiff, Charles E. Marks, 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 26th day of June, 1914, vacating and setting aside the verdict of a jury in his favor for the sum of $7,500.

<p>Landlord and tenant—summary proceedings — pleading—counterclaim—liability of tenant for rent, where partially evicted from premises by third party.</p> <p>In a summary proceeding by a landlord to recover the possession of leased premises, upon the failure of the tenant to pay rent due, the defendant cannot plead counterclaims based upon negligence as a defense.</p> <p>The fact that the city reclaimed a portion of the street occupied by vaults appurtenant to the premises leased to the tenant, and that the contractor in constructing the subway built a wall preventing the use of the vaults in connection with the premises, but not otherwise interfering with the possession thereof, does not afford a basis for a counterclaim in the summary proceeding.</p> <p>Counterclaims based upon a breach of contract by the landlord may be interposed by the tenant to defeat a summary proceeding.</p> <p>Where a landlord evicts a tenant from a part of the premises and the tenant remains in possession of the remainder, the landlord’s right to rent is suspended until he restores possession, but if the partial eviction be by a third party, the tenant must pay proportionately the rent for the premises of which he remains in possession.</p>

Appeal by the defendant, The Board of Education of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of July, 1914, upon the decision of the court after a trial before the court without a jury.

<p>■¡Will — trust — suspension of power of alienation — when invalid trust provision may be disregarded — disposition of income during trust term.</p> <p>A testator conveyed certain property by deed to trustees in trust to pay out of the principal or income certain charges and apply the surplus income to his use during his life, and upon his death convey the principal, together with any unexpended income as he should direct by his last will and testament. Thereafter the testator executed a will providing that the principal should be held by his executors as trustees during the lifetime of his widow, with the proviso that one-half of it should be paid to his infant child if he lived to the age of thirty years, the other half remaining in the trustees for the benefit of the widow during the remainder of her life. She was to enjoy the whole income during the infancy of the child; after he arrived at the age of twenty-one years he was to receive one-fourth of the income; after he arrived at the age of twenty-five years one-half; the balance in each case still going to the widow. The will further provided that upon the death of the testator’s wife the trustee should hold the principal remaining in trust for his children.</p> <p>Held, that, construing the deed of trust and the provisions of the will together, the first trust, limited upon the lives of the testator and his wife, terminated upon her death and is valid and should be upheld, although the other trust, taking effect at her death, is invalid because it unlawfully suspends the power of alienation.</p> <p>A testator, having created a trust term which must end within the period required by the statute, may provide that the income shall be paid during that time to whatever persons for as many different lives as he chooses, provided the whole trust term must end with the death of the survivor of the two lives.</p> <p>Laughlin and Dowling, JJ., dissented, with opinion.</p>

<p>Corporations — action by temporary receiver to compel directors to account as liquidating trustees for the proceeds of unpaid obligations of another corporation — sufficiency of complaint — reorganization upon sale of corporate property and franchises.</p> <p>In an action by a temporary receiver of the Twenty-eighth and Twenty-ninth Streets Crosstown Railroad Company against the defendants, who were directors of the Metropolitan Traction Company at the time of its dissolution and distributed the assets among its shareholders, seeking to hold them liable as liquidating trustees under section 35 of the General Corporation Law, the plaintiff in substance alleged that the traction company agreed to buy the outstanding stock and bonds of an insolvent street railroad company for a consideration to be paid partly in cash and partly in bonds of a company to he formed; that it purchased at a foreclosure sale the franchises and property of said company; that it caused a new corporation to be organized, which acquired the franchise and property so purchased by it; that it caused the new corporation to issue its mortgage bonds to the amount of $1,100,000, which it disposed of for its own purposes and never paid over or accounted to the new company which issued the bonds for any part of the proceeds thereof, or applied the same for the benefit of said new company. The plaintiff seeks an accounting from the individual defendants, individually andas trustees in liquidation of the traction company for the proceeds or value of the bonds thus delivered to the traction company, and used or disposed of by it for its own profit and purposes.</p> <p>Held, that since the traction company received no part of the assets of the Crosstown Company, but merely that company’s obligation to pay a sum of money, which obligation the obligor has never been called upon to pay, the Crosstown Company or its receiver has no right of action.</p> <p>The new corporation, by the filing of its certificate of incorporation, did not, under section 3 of the Stock Corporation Law (Laws of 1890, chap. 664, as amd. by Laws of 1892, chap. 688) become ipso facto vested with the property acquired at the foreclosure sale.</p>

Appeal by the defendant, the Hartford Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of August, 1914, upon an interlocutory judgment overruling a demurrer to the complaint on default of the defendant in serving an answer within the time allowed.

Appeal by the plaintiffs, Paul Orth and others, 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 4th day of March, 1914, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.

Appeal by the comptroller of the city of Hew York 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 21st day of September, 1914, resettling an order entered in said clerk’s office on the 8th day of July, 1914, and granting a motion to pay to the petitioners an award made to unknown owners.

<p>Libel — mere filing of pleading not a judicial proceeding entitling newspaper to privilege—partnership maintained in violation of Penal Law not entitled to damages to business.</p> <p>The mere filing of a pleading, without any submission to the court or judicial action taken thereon, does not constitute such a judicial proceeding as will give rise to a qualified privilege of a newspaper to publish its contents.</p> <p>The members of a dairy company maintaining a lawful business but conducting it under a fictitious name in violation of the Penal Law, are not entitled to recover damages to their firm business in an action for libel.</p>

Appeal by the defendant, Herman A. Metz, 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 16th day of June, 1914, sustaining plaintiff’s demurrer to certain separate defenses contained in the amended answer.

Appeal by the defendant, City of Troy, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rensselaer on the 22d day of June, 1914, upon the report of a referee appointed to hear and determine the issues.

Appeal by the plaintiff, James Kelly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 7th day of June, 1910, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendants, Frederick L. Hamilton and another, from a judgment of the County Court of Warren county, rendered against them on the 23d day of February, 1914, convicting them of the crime of conspiracy.

Appeal by the plaintiff, Catskill National Bank, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Greene on the 14th day of April, 1914, upon the dismissal of the complaint by direction of the court at the close of the case, both sides having moved for a direction of the verdict, and also from the order of dismissal, pursuant to which the judgment was entered.

Cross-appeals by Thornton D. Roberts and others from parts of a decree of the Surrogate’s Court of the county of Ulster, entered in the office of said Surrogate’s Court on the 19th day of September, 1913, settling and allowing the accounts of Frank B. Lown, as executor!

Appeal by the defendant, Rhineland Machine Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of January, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of February, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the Oneida Steel Pulley Company and another from an award of the Workmen’s Compensation Commission, entered in the office of the said Commission on the 7th day of October, 1914.

Appeal by the defendants, Harry Unger and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 30th day of July, 1914, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by Max S. Grifenhagen, sheriff of the county 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 11th day of June, 1914, granting a motion to vacate an execution and directing the repayment by the sheriff of poundage and fees collected and retained by him thereunder.

<p>Appeal by the plaintiff, Alexander 0. Lamoutte, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 20th day of August, 1914, dismissing the complaint upon the merits upon a decision of the court after a trial before the court, a jury having been waived.</p>

Appeal by the defendant, John Oort, from an order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of June, 1914, affirming a judgment of the City Court of the City of Hew York in plaintiff’s favor, and also the order of the City Court denying the defendant’s motion for a new trial.

Appeal by the plaintiff, Champe S. Andrews, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 13 th day of May, 1914, upon the dismissal of the complaint by direction of the court.

Appeal by the defendant, John Leon Martin, 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 3d day of November, 1913, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 22d day of January, 1914, denying the 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>

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

Appeals by the relator, The Harlem River and Port Chester Railroad Company, from three 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 26th day of January, 1914, reducing relator’s special franchise assessments for the years 1909,1910 and 1911 respectively, and confirming them as so reduced.

<p>Appeal by the defendants, Arthur 0. Higgins and another, as administrators, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 26th day of December, 1913, upon the decision of the court after a trial before the court without a jury.</p> <p>The judgment determined that certain real property of the plaintiff, described in the complaint herein, was exempt from sale under an execution because bought with pension money and canceled a sheriff’s certificate of sale as a cloud upon the title to such real property, and directed that the record of a judgment held by the appellants be modified by an indorsement to the effect that the same was not a lien upon such real property of the plaintiff, and awarded to the plaintiff costs against the appellants, amounting to the sum of $138.33.</p>

Appeal by the plaintiff, Charles Kline, from an interlocutory judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Chemung on the 28th day of July, 1914, sustaining a demurrer to the complaint.

Appeal by the plaintiff, Jacob Willey, Jr., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 1st day of October, 1913, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the plaintiff, Mary E. Brack, as executrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 29th day of May, 1913, dismissing the complaint upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of May, 1913, denying the plaintiff’s motion for a new trial made upon the minutes. '

Appeal by the defendant, Hudson Valley Construction Company, from a judgment of the Supreme Court, rendered against it on the 17th day of April, 1914, convicting it of the crime of grand larceny in the second degree, and also, as stated in the notice of appeal,' from the sentence of the court rendered thereon, with notice of an intention to bring up for review an order made on the 25th day of October, 1913, denying defendant’s motion for a bill of particulars amplifying the…

Appeal by the defendants, Peter Gray 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 Franklin on the 4th day of August, 1914, upon the decision of the court, after a trial before the court, a jury having been waived.

Appeal by the defendant, The State of New York, from a judgment or determination of the Board of Claims, entered in the office of the clerk of said board on the 23d day of July, 1914, awarding the claimants the sum of_$l,538.11 for stamps alleged to have been erroneously paid upon the transfer of a certificate of stock for 100,000 shares of William P. Bonbright, Incorporated.

Appeal by the plaintiff, Interboro Brewing Co., Inc., from a judgment of the Supreme Court in favor of the'defendant Robinson, entered in the office of the clerk of the county of Delaware on the 15th day of September, 1914, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendant, City of Ogdensburg, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 18th day of April, 1914.

Appeal by the defendant, Saint Paul Fire and Marine 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 Albany on the 22d day of April, 1914, upon a decision of the court, both sides having consented that the jury be discharged.

Appeal by the defendant, Franklin Brooks, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 15th day of April, 1914, affirming a judgment of the City Court of Albany in favor of the plaintiff for the sum of $120.

Appeal by the plaintiff, Walter S. West, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 9th day of March, 1914, dismissing the complaint upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, Fred Hill, from a judgment of the County Court of St. Lawrence county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of February, 1914, 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>Charges submitted by the Association of the Bar of the City of New York against the respondent, an attorney at law, of professional misconduct.</p>

Appeal by the assignor, Julius Bien Company, and two creditors, Franklin Bien and another, from an order of the County Court of Ulster county, entered in the office of the clerk of said county on the 23d day of September, 1914, approving the report of the assignee and permitting the payment ■ of certain items objected to by the appellants, except that portion of the order which directed a dividend of twenty per cent to be paid to the general creditors.

Appeal by Harvey Steele from an order of the County Court of Saratoga county, entered in the office of the clerk of said county on the 16th day of April, 1914, offsetting judgments held by the respective parties herein against each other.

<p>Appeal by the plaintiff, Seymour Seely, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 1th day of January, 1914, dismissing the complaint upon the decision of the court after a trial before the court, a jury having been waived.</p>

<p>Slander — pleading — sufficiency of complaint — failure to allege particular words constituting slander.</p> <p>A complaint in an action to recover both special and general damages on account of an alleged slander of the plaintiff by the defendant, which allege's that the plaintiff, a married woman, was employed as a clerk in a store conducted by L. and wife; that Mrs. L. attempted to commit suicide at such store; that thereafter the defendant falsely told many people, naming some of them, the others being unknown, in substance that the plaintiff had been caught in the cellar with Mr. L., and that Mrs. L. had attempted to commit suicide on account of the discovery of her husband and the plaintiff in the cellar together, and further alleges, as innuendo, that the defendant implied and charged that the plaintiff was guilty of adultery with Mr. L., does not state a cause of action, because the particular words constituting the alleged slander are not set forth.</p>

Appeal by the defendant, Royal L. Cottrell, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 11th day of July, 1914.

Appeal by the plaintiff, Dora Johnson, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of June, 1914, upon the dismissal of the complaint by direction of the court at the close of the case.

<p>Blaster and servant — negligence — contributory negligence of longshoreman in walking into an open hatch.</p> <p>A longshoreman of thirty years’ experience, engaged in loading a boat, had imowledge that the after third section of the lower hatch had been 'left uncovered, that a tarpaulin had been lowered from the main deck to shield the lower hatch from rain, and canvas had been placed over the upper hatch, thereby darkening the open hatch. On the next day, without anything to divert his attention, and without necessity, he started to walk across the open hatch, without groping or testing the way with his foot, although the place was dark, and fell into the hold. Held, that he was guilty of contributory negligence as a matter of law.</p> <p>Unless one be constrained or induced, or be in an emergency, it is usually negligence per se to walk in dark places, whether the person is or is not familiar with what may be encountered.</p>

Appeal by the plaintiff, James Clarence Wells, from a judgment of the Supreme Court in favor of the defendant, entered' in the office of the clerk of the county of Nassau on the 8 th day of April, 1914, upon the dismissal of the complaint hy direction of the court at the close of plaintiff’s case.

Appeal by the defendant, Dinkel & Jewell Company, 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 Westchester on the 27th day of July, 19 M, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the defendant, Borden’s Condensed Milk Company, from a judgment of the Court of Special Sessions of the city of New York, county of Kings, rendered against it on the 18th day of June, 1914, convicting it of the crime of committing and maintaining a public nuisance.

Appeal by the defendant, Charles T. Wills Company, Inc., from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 16th day of March, 1914.

Appeal by the defendants, John Ernest Jacobs and another, from a judgment of the County Court of Suffolk county, rendered against them on the 8th day of December, 1913, convicting them of a violation of section 185 of the Conservation Law.

Appeal by the defendant, James Stewart & Company, Inc., 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 25th day of May, 1914, upon the verdict of a jury for $175, and also from an order entered in said clerk’s office on the 20th day of May, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The First National Bank of Waverly, N. Y., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 31st day of January, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of January, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Oliver E. Baillargeon, from a judgment of the Supreme Court in favor' of the defendant, entered in the office of the clerk of the county of Clinton on the 13th day of April, 1914, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case. Decision on the motion to dismiss was reserved until the end of the whole case and the verdict of the jury was taken which was in favor of the plaintiff.

<p>Municipal corporation — negligence — action for personal injury — notice — village created by special act.</p> <p>Under section 380 of the Village Law, the provisions of section 341 thereof, that no “action shall be maintained against the village for damages for a personal injury * * * sustained by reason of the negligence of the village or of any officer * * * thereof, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless a written verified statement of the nature of the claim and of the time and place at which said injury is alleged to have been received, shall have been filed with the village clerk within sixty days,” applies to a village created by special charter where no requirement as to notice is made therein, but the rule is not to be extended for the purpose of working injustice.</p> <p>Under section 52 of the charter of the village of Owego, which declares it necessary to a cause of action for injuries received by reason or on account of ‘' any defective condition of any sidewalk in said village, ” that written notice of such injury shall be given within 'ten days after such injury shall have been caused, a notice stating what particular sidewalk was defective and fixing the date of the accident was sufficient although not verified.</p>

Appeal by the plaintiff, M. Beulah Griswold, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schenectady on the 27th day of May, 1914, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, City of Watervliet, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 15th day of June, 191-4, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles F. W. Horn, from a judgment of. the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 31st day of October, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of October, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Frank 0. Hazen 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 Westchester on the 31st day of July, 1914, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the plaintiff, Sofie Loesch, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of April, 1914, upon the verdict of a jury dismissing the complaint by direction of the court at the close of the case.

Appeal by the defendant, Village of Mamaroneck, from an order and judgment 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 13th day of November, 1913.

Appeal by the plaintiff, Pitzroy D’Arcy, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of January, 1914, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from said order of dismissal which was entered in the office of the clerk of the county of New York on the 11th day of December, 1913.

Appeal by the defendant, Lulu Koch, 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 11th day of May, 1911, granting plaintiff’s motion for judgment on the pleadings after defendant had interposed a demurrer to the complaint.

Appeal by the defendant, Greenhut-Siegel-Cooper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of May, 1914, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 3d day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James McGee, 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, 1914, denying his motion to vacate an order for his examination obtained to enable the plaintiff to frame his complaint.

Application to confirm the report of a referee sustaining charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application upon the report of the official referee, sustaining certain charges of professional misconduct against the respondent, an attorney of this court.

<p>WiU — construction—intent of testator — when residuary legacy and devise does not lapse upon death of legatee.</p> <p>A testator, who left him surviving no widow, issue, father, mother, brothers, sisters, uncles or aunts, after devising to his Cousin, Charles Ritchie, the father of two infants, a house and lot, devised another house and lot to said Charles Ritchie and another cousin. Two following subdivisions of his will provided as follows: “ Sixteenth. Should any of the gifts and bequests made by me in this my will lapse or fail for any reason, I direct that the gift or bequest so lapsing or failing shall go to form part of my residuary estate and be disposed of under and in accordance with the seventeenth paragraph of this my will. Seventeenth. All the rest, residue and remainder of my property and estate, as well real and personal and wheresoever situate which, at the time of my death shall belong to me or be subject to my disposal by will, I give, devise and bequeath unto Charles Ritchie hereinbefore named, absolutely and in fee to his heirs, executors and administrators and assigns, according to the nature of the property.” Charles Ritchie died a few days before the testator, leaving him surviving as his heirs at law and next of kin the two infants. The testator’s only next of kin are four first cousins.</p> <p>Provisions of the will construed, and held, that it was the intention of the testator to substitute and give such part of his residuary estate as was real property to the heirs, and such part as was personal property to the executors and administrators of Charles Ritchie, for the benefit of his next of kin, in the event that his legatee did not survive him;</p> <p>That, therefore, the devise and legacy given by the 17th paragraph of the will did not lapse on the death of Charles Ritchie, but, under its provisions, his hems take the real property and his next of kin the net personal estate.</p>

Appeal by Martha Scott Ferry and others, residuary legatees, from so much of a decree of the Surrogate’s Court of the county of Schuyler, entered in the office of said Surrogate’s Court on the 26th day of May, 1913, as directs the executors herein to pay to the trustees of the Methodist Episcopal Church of Cincinnati, Ohio, the sum of $3,000 and interest.

Appeal by the defendant, Ward Poland, from a judgment of the County Court of Franklin county, rendered against him on the 30th day of June, 1914, convicting him of the crime of burglary in the third degree-.

Appeal by the plaintiff, Frank W. Terwilliger, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 26th day of June, 1914, upon an interlocutory judgment sustaining a demurrer to the complaint, an amended complaint not having been served within the time fixed by said interlocutory judgment, with notice of an intention to bring up for review the said interlocutory judgment sustaining the demurrer on…

Appeal by the defendant, James Talcott, 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 14th day of January, 1914, upon the decision of the court, after a trial at the New York Special Term. ■The judgment directed an accounting between the parties,

Appeal by the plaintiffs, Henry Finck 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 Chautauqua on the 8th day of December, 1913, upon the decision of the court after a trial at the Erie Special Term.

<p>Cross-appeals by the plaintiff, Egbert Shoemaker, and defendant, Buffalo Steam Roller Company, from parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Steuben on the 27th day of December, 1913, upon the decision of the court after a trial at the Steuben Equity Term.</p> <p>Plaintiff, a resident taxpayer of the town of Campbell, in the county of Steuben, having, the requisite statutory qualifications, brought this action under the provisions of section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29) to restrain those defendants, who, at the time the action was begun, were the town officials constituting the town board of the town of Campbell and their successors in office, from paying, or causing to be paid, to the defendant Buffalo Steam Roller Company, and the latter from collecting and receiving from the town of Campbell, the amounts unpaid upon and specified in an agreement, set out in the complaint, for furnishing by the roller company to the town a steam roller, to procure the cancellation of said agreement, and to restrain said defendants from taking any action thereupon or théreunder; and further to require the defendants Turnbull, Platt, Evens, Burrows, Frederich and Buffalo Steam Roller Company, “personally, individually, separately and collectively ” to repay, restore and make good to the defendant town the sum of $1,280, funds of said town, alleged to have been illegally and unlawfully audited, allowed and paid and caused to be paid, upon the said agreement to the Buffalo Steam Roller Company. The agreement, above referred to, was executed by the Buffalo Steam Roller Company and on behalf of the town by its superintendent of highways, the defendant Evens. It hears the written approval of the defendants Turnbull, Platt, Frederich and Burrows, who were then members of the town board of the town of Campbell and were a majority thereof, as well as that of the county superintendent of highways of the county of Steuben. Other defendants are members of the town board who were not members of the board at the time the agreement was made.</p> <p>The adjudicating provisions of the judgment are as follows:</p> <p>“ I. That the counterclaim set forth in the answer of the defendant, Buffalo Steam Roller Company, to recover the sum of one hundred and thirty-eight and -jW dollars ($138.10) and also to recover for moneys received by the defendant, The Town of Campbell, from, the leasing of the steam roller, be and they hereby are dismissed.</p> <p>“ II. That the contract dated February 21st, 1910, made between the Buffalo Steam Roller Company and the Town of Campbell, referred to in the complaint and decision, be and the same hereby is adjudged and decreed to be illegal, null and void, and the same is hereby cancelled and annulled, and the defendant, Buffalo Steam Roller Company, is hereby directed and required to surrender up the said contract to the Court to be cancelled.</p> <p>“ III. That so much of the prayer for relief in the complaint and the complaint has asked or prays to have repaid, refunded, restored and made good to the Town of Campbell the sum of twelve hundred eighty dollars ($1,280) highway funds paid by said town to the defendant, Buffalo Steam Roller Company, upon the said contract and all other relief with respect thereto be and the same hereby is dismissed and any and all relief to the plaintiff, with respect to the said moneys paid upon the said contract against any or all of the defendants be and the same hereby is denied upon the merits.</p> <p>“ IV. It is further adjudged that as to the defendants, other than the Buffalo Steam Roller Company and the Town of Campbell, the complaint is dismissed.</p> <p>“V. It is further adjudged that the plaintiff, Egbert Shoemaker, recover of the defendant, Buffalo Steam Roller Company, his costs of this action, taxed at the sum of $193.02, and that he have execution therefor.”</p> <p>Plaintiff has appealed from the judgment except as to the parts thereof contained in the above paragraphs numbered I, II and V, and the defendant Buffalo Steam Roller Company has appealed from said judgment except as to so much thereof as is recited in the paragraph numbered III thereof. The other defendants have not appealed.</p>

<p>Incompetent person — agreement by heirs presumptive that committee of incompetent shall not be personally liable — estoppel — consent of infant not binding — new trial — imperfect record.</p> <p>It seems, that the heirs presumptive of an incompetent person by agreeing that his committee shall be relieved of all responsibility connected with the incompetent’s estate, and that the affairs shall be managed by a third person, are not estopped from holding the committee liable for the loss of the estate which was misappropriated by the custodian agreed upon, unless at the time of giving- such consent they had full knowledge of all the material facts and were apprised of the effect of their consent upon their legal and equitable rights. Thus, it seems, they are not estopped from holding the committee when they were not apprised that if the funds were misappropriated by the custodian the committee and his sureties would be relieved from liability to them.</p> <p>It seems, that an heir apparent who consented to the agreement aforesaid during his infancy is not estopped from asserting the liability of the committee where there was no ratification after he became of age and had knowledge of the facts.</p> <p>The court will refuse to affirm a decree directing such committee to pay over to the administrator of the deceased incompetent and will order a new trial at Special Term where the record is imperfect, in that the testimony of one of the incompetent’s hems was taken in the form of an affidavit not included in the record, 'a,nd it is uncertain whether the acts of the custodian of the estate who misappropriated the same were such as to amount to notice to the committee so as to have called for affirmative action on his part.</p>

<p>Bankruptcy — continuation of bankrupt’s business by trustee — failure to obtain authority from court — liability for injuries to property.</p> <p>A trustee of a bankrupt contracting company who has not been authorized by order of the court to continue the business of the bankrupt is not liable, in his representative capacity as trustee, for injuries done to an adjoining landowner by horses and mules used in connection with construction work. It seems, that in the absence of such order the trustee is liable personally, not in his representative capacity.</p>

Appeal by the plaintiff, George L. Jaquish, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Delaware on the 20th day of August, 1914, granting the defendants’ motion for a new trial.

<p>Tax — transfer of certificate of subscription not a transfer of stock within meaning of section 270 of the Tax Law.</p> <p>The transfer of a certificate of subscription to additional corporate stock to be paid for in installments, and subject to forfeiture for non-payment, upon the payment of all of which the certificate of stock is to be issued, and under which the holder receives interest upon the moneys actually paid, but is not entitled to vote as a stockholder or participate in dividends, is not a transfer of stock taxable under section 370 of the Tax Law.</p> <p>Woodward and Lyon, JJ., dissented, with opinion.</p>

Appeal by the defendants, Helen Story and others, as executors, etc., of a deceased creditor of the defendant, Fred W. Hulbert, from an order of the Supreme Court, made at the Wayne County Special Term and entered in the office of the clerk of the county of Seneca on the 31st day of August, 1914, directing the payment of certain judgment liens from the proceeds arising from the sale of the interest of one of the defendants in certain real property sold in this action.

Appeal by the T. T. Reid Construction Company, intervenor, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on or about the 9th day of November, 1914, denying a motion to cancel a lis pendens.

Appeal by the T. T. Reid Construction Company, intervenor, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on or about the 9th day of November, 1914, denying a motion to cancel a Us pendens.

Appeal by the T. T. Reid Construction Company, intervenor, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on or about the 9th day of November, 1914, denying a motion to cancel a lis pendens.

<p>Sale — conditional sale — agreement that seller may recover purchase price on default or retake property and file mechanic’s lien — election of remedies—conversion — demand at time defendant cannot render possession—pleading—general denial — proof of election by plaintiff.</p> <p>Where one claims title to machinery installed in a building by reason of the purchaser’s breach of a contract of conditional sale, he cannot hold one who purchased the premises and the machinery on the foreclosure of a mortgage prior to said contract liable for conversion, unless a demand for the return of the machinery was made after the purchaser received possession under the referee’s deed, for until that time it was impossible for him to surrender the machinery to the seller.</p> <p>Where a contract for the sale and installment of ice-making machinery provided that the purchase price was to be paid partly in cash and the balance by promissory notes, that the title should remain in the seller until the entire purchase price was paid, and that if any installment should not be paid when due the seller at its option might declare the whole sum due, “or” in ease of default in payment might enter and remove the machinery at the expense of the purchaser, who shall be liable for depreciation, etc., with a further right in the seller to file a mechanic’s hen on the machinery, the seller’ has an election of remedies. Where he declared the entire purchase price due on the purchaser’s failure to pay and recovered judgment against it, and subsequently filed a mechanic’s lien, there was an irrevocable election to pass title to the vendee, and the seller, having been made a party to a suit to foreclose a mortgage prior to his contract, cannot subsequently hold the purchaser on the foreclosure sale as for a conversion in refusing to return the machinery.</p> <p>The defense that the seller by an election of remedies had confirmed the title of the buyer may be proved under a general denial, for it puts in issue the seller’s claim of title, which may then be disproved.</p>

Appeal by the plaintiff, York Manufacturing Company, 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 22d day of October, 1913, upon a verdict of a jury rendered by direction of the court.

<p>Appeal by the plaintiff, John Clarke Estate, 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 verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict, and also from an order entered in said clerk’s office on the 10th day of July, 1913, denying plaintiff’s motion to set aside the verdict.</p>

Appeal by the defendant, Frederick W. Becker, as sheriff, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of June, 1914. The People of the State of New York, by James A. Parsons, Attorney-General, participated in the appeal, both by briefs and on the argument, although no notice of appeal was served by them.

Application to discipline the respondent, an attorney at law, upon the report of an official referee convicting the respondent of professional misconduct.

Appeal by the plaintiff, Mary E. Kellogg, 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 Columbia on the 10th day of November, 1914, requiring her to receive a copy of the unverified answer of the defendant Charles M. Kellogg.

Appeal by the plaintiff, John Larson, 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 12th day of June, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Appeal from an order of the Supreme Court, entered on the 16th day of July, 1914, denying plaintiff’s motion for judgment on the pleadings; also appeal from an order entered on the same day granting defendant’s motion to serve a second supplemental answer.</p>

<p>Appeal from an order of the Supreme Court, as amended by an order entered on the 9th day of June, 1914, directing examination of defendant corporation before trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the ¡New York county clerk’s office on the 4th day of May, 1914, upon the verdict of a jury and from an order entered on the 6th day of May, 1914, denying a motion for a new trial.</p>

<p>Appeal from an order of the Special Term granting a motion for a bill of particulars of the allegations of the reply to counterclaim.</p>

<p>Appeal from a judgment of the Supreme Court, entered on the 12th day of May, 1914, dismissing complaint after a trial at Trial Term.</p>

<p>Appeal from an order of the Supreme Court, entered on the 24th day of June, 1914, overruling demurrers to complaint.</p>

<p>Appeal from a decree of the Surrogate’s Court of ¡New York county, entered on the 18th day of February, 1914, as amended by an order entered on the 12th day of March, 1914, settling The account of a trustee under a will, and from an order striking out objections to said account.</p>

<p>Charges of professional misconduct by the Association of the Bar of the City of New York against the respondent, an attorney at law.</p>

Proeeedmgs upon the report of the official referee on charges agamst the respondent preferred by the Association of the Bar of the City of Hew York.

Proceedings on the report of the official referee convicting the respondent, an attorney and counselor at law, of charges preferred against him by the Association of the Bar of the City of New York.

Application upon referee’s report upon charges of the Association of the Bar of the City of New York against the respondent for professional misconduct.

<p>Charges against an attorney of professional misconduct.</p>

<p>Determination affirmed, with costs.</p>

<p>Judgment and order affirmed, with costs.</p>

■ Appeal by the defendant from a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Queens on the 19th day of June, 1914, enjoining and restraining defendant from violating the terms of a restrictive building covenant.

<p> Decedent's estate—joint account of husband and wife. </p>

Appeal by the defendants, Samuel M. Meeker and another, as executors, etc., from an order of the Supreme Court, made at Special Term as resettled, and entered in the office of the clerk of the county of Queens on the 9th day of June, 1914, and from an interlocutory judgment entered in said office on the 17th day of June, 1914.

<p>Judgment and order affirmed, with costs.</p>

<p>Motion for settlement of order and for judgment of restitution.</p>

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 Columbia on the 5th day of June, 1914, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 8th day of June, 1914, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal from a judgment of the Supreme Court, entered in the Schenectady county clerk’s office on the 20th day of March, 1914.</p>

<p>Master and servant—negligence — safe place to work—carelessness of superintendent—injury by train.</p>

<p>Award reversedupon the ground that the damages are excessive and new hearing granted, with costs to appellant to abide event, unless the claimant stipulates to reduce the damages to $1,500, in which case the award is so modified and as modified affirmed, without costs.</p>

<p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Judgment and order affirmed, with costs.</p>

<p>Appeal from part of a decree of the Surrogate’s Court of Chautauqua county, entered the 11th day of February, 1913.</p>

<p>Judgment and order affirmed, with costs.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 3d day of October, 1914, denying a motion for an order requiring the plaintiff to separately state and number causes of action and to strike from the complaint certain matters as irrelevant and redundant.</p>

<p>Appeal by plaintiffs from a judgment of the Supreme Court dismissing the complaint.</p>

<p>This is an appeal from an order of the Supreme Court as resettled on September 18, 1914, appointing a referee to take proof upon the merits of defendant’s application to reduce alimony.</p>

<p>Appeal from so much of an order of the Supreme Court, entered on the 9th day of October, 1914, as granted counsel fee, etc.</p>

<p>Appeal from an order of the Supreme Court, entered on the 27th day of January, 1915, granting the plaintiff’s motion to open his default in the service of a reply.</p>

<p>Appeal from an order of the Supreme Court, made on the 5th day of November, 1914, granting an injunction pendente lite.</p>

<p>Appeal from an order of the Supreme Court, entered on the 26th day of August, 1914, granting a motion for an alternative writ of mandamus.</p>

<p>Appeal from a judgment of thq Supreme Court, entered on the 8th day of May, 1914, on a verdict of a jury, and from an order entered on the 13th day of May, 1914, denying a motion for a new trial.</p>

<p>Will— execution— declaration as to nature of instrument.</p>

<p>Contract — subscription agreement —purchase of stock — construction — note as payment— defenses.</p>

<p>Appeals from judgments of the Supreme Court, entered on the 2d day of April, 1914, upon decisions after trial at Special Term.</p>

<p>Appeal from an order of the Supreme Court, entered on the 7th day of October, 1914, denying the defendant’s motion to compel a reply, and granting the plaintiff’s motion for leave to serve an amended complaint,</p>

<p>Appeal from a final judgment of the Supreme Court, entered on the 17th day of June, 1913, confirming the report of á referee.</p>

<p>Appeal from an order of the Supreme Court, entered on the 23d day of July, 1914, granting a motion to make the complaint more definite and certain.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 22d day of July, 1914, granting a motion to make the complaint more definite and certain.</p>

<p> Injunction — assignment of claim. </p>

<p>Appeal from an order of the Supreme Court, entered on the 30th day of November, 1914, denying a motion to make the complaint more definite and certain, and to strike out certain allegations as redundant.</p>

<p>Appeal from an order of the Supreme Court, entered on the 30th day of October, 1914, granting a motion for a biE of particulars before the service of an answer.</p>

<p> Pleading —form of denials in answer — irrelevant allegations. </p>

<p>Appeal from an order of the Supreme Court, entered on the 26th day of May, 1914, denying a motion for a bill of particulars.</p>

<p>Appeal from an order of the Supreme Court, entered on the 10th day of September, 1914, denying a motion to change the place of trial for the convenience of witnesses.</p>

<p>Appeal from a judgment of the Court of General Sessions, rendered on the 16th day of October, 1918, convicting defendant of attempting to commit the crime of abortion.</p>

<p>Appeal from an order of the Supreme Court, entered on the 23d day of October, 1914, granting an injunction during the pendency of the action.</p>

<p>Appeal from a judgment of the Supreme Court, entered on the 30th day of December, 1913, after a trial at Special Term.</p> <p>Judgment affirmed, with costs.</p>

<p>Pleading — supplemental answer.</p>

<p>Appeal from an order of the Supreme Court, entered on the 24th day of November, 1914, permitting plaintiff to serve an amended complaint.</p>

<p>Separate appeals by the defendants, John B. Carter Company and the Carter Construction Company, from orders of the Supreme Court, entered on the 4th day of September, 1914, overruling their separate demurrers to the complaint.</p>

<p>Practice — amending answer.</p>

<p>'¡Appeal from an order of the Supreme Court, entered on the 22d day of September, 1914, granting a motion to vacate an attachment.</p>

<p>Order affirmed, with ten dollars costs and disbursements, with leave to plaintiff to amend on payment of costs.</p>

<p>Judgment and order affirmed, with costs.</p>