Volume 166 — New York Appellate Division Reports

Appeal by Essie Kate Giles 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 1st day of December, 1914, sustaining exceptions to the report of a referee herein and remitting the proceeding to the referee for further hearing.

<p>Appeal by the plaintiff, 0. Olivia Sabine, from a judgment of the Supreme Court in favor of the defendant Paine, entered in the office of the clerk, of the county of Suffolk on the 3d day of February, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of December, 1913, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, John R McKean, from a judgment of the Supreme Oourt in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 9 th day of February, 1914, upon the decision of the court after a trial at the Westchester Special Term.

Certiorari issued out of the Supreme Court and attested on the 1st day of July, 1914, directed to the Board of Supervisors of Rockland county, commanding them to certify and return to the office of the clerk of the county of Rockland all and singular their proceedings had in regard to the reaudit of .relator’s claim against one of the towns of said county.

Appeal by the defendant, Harry Pushae Williams, 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 March, 1914, upon the decision of the court, both parties having moved for the direction of a verdict at the close of the case.

<p>Appeal by the defendant, J. M. Horton Ice Cream Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of June, 1914, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 19th day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Katherine F. Lindemann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of December, 1914, appointing a receiver of the rents, issues and profits of the premises described in the complaint, in so far as said order appoints a receiver of parcels 2, 3 and 4 of said property.

Appeal by the plaintiff, The City of New York, 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 14th day of April, 1914, as amended and resettled by an order entered in said clerk’s office on the 13th day of May, 1914. The judgment dismissed the complaint and was rendered on the decision of the court after a trial before the court without a jury.

<p>Appeal by the defendant, S. T. W. Sanford & Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of June, 1914, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the defendants, Maria 0. M. De Florez 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 13th day of October, 1914, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendants, Charles I. Hudson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of June, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of June, 1914, denying the defendants’motion for a new trial made upon the minutes.

Appeal by the defendant, The Board of Education of the City of New York, 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, 1911, granting an alternative writ of mandamus.

Motion by the plaintiff, Jacob Zadek, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court at the opening, upon a trial before the court and a jury at the New York Trial Term in June, 1913.

<p>Appeal by the plaintiff, The United States Asphalt Refining Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of October, 1914, pursuant to an order made at Special Term, granting defendant’s motion for judgment sustaining its demurrer, and dismissing the complaint, and also an appeal from two orders entered in said clerk’s office on the 6th day of October, 1914, one denying plaintiff’s motion to strike out the demurrer and for judgment on the complaint, and the other granting defendant’s motion for judgment on its demurrer. The latter order was the one pursuant to which the judgment was entered.</p>

Appeal by the defendant, James E. March, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the “clerk of the county of New York on the 14th day of August, 1914, settling and allowing the accounts of a receiver and directing him to pay over certain moneys to the plaintiff.

Appeal by the plaintiff, Mecca Realty Company, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of New York on the 13th day of May, 1914, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case, and also from an order entered in said clerk’s office on the 25th day of May, 1914, denying the plaintiff’s motion for a new trial…

<p>Crime — public nuisance — intent immaterial — process — form of order for abatement—trial—refusal of continuance requested by defendant.</p> <p>In order to convict a defendant of the crime of maintaining a public nuisance it is not necessary to show criminal intent on his part.</p> <p>Where the business carried on by the defendant is lawful, the primary question is one of relative rights between him and the public. The prosecution is criminal in form only because the nuisance is public, in that it affects a considerable number of persons.</p> <p>While an order for the abatement of a criminal nuisance should be made under section 953 of the Code of Criminal Procedure, it should first command the defendant himself to abate the quisanee at his own expense where the business carried on by him is in itself lawful, and then provide that, upon the defendant’s default at the expiry of a prescribed reasonable time, the sheriff should abate the nuisance.</p> <p>The sheriff should not be commanded to abate the nuisance in the first instance, for the defendant is only required to refrain from those excessive acts which make his lawful business a public nuisance, and these matters cannot personally be determined by the sheriff.</p> <p>Evidence examined, and held, that although the Court of Special Sessions finally refused a continuance of the trial originally asked for by the defendant in order that it might complete its case, there was no sub stantial grievance and that the court had a right to amend its order of abatement.</p>

Separate appeals by the defendant, William A. Jamison, from two orders 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 4th day of December, 1914.

Appeal by the defendant, Star Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of May, 1914, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Ann Gill and another, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of May, 1914, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the defendant, John Pullman, from a judgment of the Court of Special Sessions, city of New York, borough of Brooklyn, rendered against him on the 1st day of July, 1914, convicting him of a violation of section 1275 of the Penal Law. (See Laws of 1913, chap. 349.)

<p>Evidence — suit against stockbrokers for failure to deliver pledged securities — partnership — agreement made by special partner — lack of authority — ratification — declarations of special partner since deceased — credibility of witness — questions for jury.</p> <p>Where stockbrokers sued as general partners for an alleged failure to return securities alleged to have been deposited with them pursuant to an agreement made by their special partner, since deceased, claim that the special partner had no authority to make the contract, which was never ratified by them, they are entitled to give evidence showing that the contract was made with them special partner personally and not with them as principals, and that they acted merely as the channel through which the stock passed into his hands. To that end the defendants may also show what the special partner told them, his general partners, as to his agreement with the plaintiff or his agent. There being no proof of any agreement with the general partners, ratification by them of a contract made by their special partner is to be ascertained from the entire transaction, including statements which the special partner made to the general partners.</p> <p>Where the special partner is dead, the credibility of the witness who acted for the plaintiff in making the contract is for the consideration of the jury and a direction of a verdict is error.</p> <p>So also it is for the jury to say whether the defendants ratified said contract.</p>

Appeal by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of August, 1913, denying a motion to confirm the report of a referee.

Appeal by the plaintiff, Elizabeth Sturmwald, 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 9th day of November, 1914, denying plaintiff’s'motion for judgment on the pleadings, after a demurrer had been interposed to the complaint.

Appeal by the defendant, Reginald H. Morgan, Jr., as treasurer, 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 $2,000, and also from an order entered in said clerk’s office on the 2d day of February, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Security Bank 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 8th day of June, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Imogen H. Cole, 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 June, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 17th day of June, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John Peirce 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 11th day of November, 1914, upon the decision of the court sustaining a demurrer to the separate defense and counterclaim contained in the amended answer of the appellant.

Appeal by the plaintiff, Mary Marshall, 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 6th day of February, 1914, upon the dismissal of the complaint hy direction of the court at the close of plaintiff’s case.

<p>Appeal by the defendant, Meta A. Kennedy, individually and as administratrix, etc., from an interlocutory judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 9th day of July, 1914, upon the decision of the court in a partition action.</p>

Appeal by Sarah S. Holzworth, as executrix, etc., from parts of a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 9th day of November, 1914, and also from an order entered in said office on the 7th day of December, 1914, denying a motion to vacate and set aside the said decree.

Appeal by the plaintiffs, Alfred P. Hinton and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of April, 1914, upon the decision of the court, a jury having been waived.

Appeal by the plaintiffs, Samuel J. Stiebel and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York oh the 30th day of July, 1914, upon the report of a referee appointed to hear and determine the issues, and also from an order entered in said clerk’s office on the 29th day of July, 1914, granting defendant an extra allowance.

Appeal by the defendant, The People of The State 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 Bronx on the 12th day of June, 1911, upon the decision of the court after a trial at the Bronx Special Term.

Appeal by the plaintiff, Charles M. Lane, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Monroe on the 25th day of July, 1913, upon the decision of the court after a trial at the Monroe Equity Term.

Appeal by the plaintiff, John Gr. Stack, individually and as administrator, etc., from a judgment of the City Court of Yonkers, entered in the office of the clerk of said court on the 9th day of June, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The New York Central and Hudson Eiver Eailroad Company, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 31st day of March, 1914.

<p>Municipal corporations — police officer, city of New York—rule 29, paragraph 50, construed—inducing tradesman to advertise candidacy of wife of police officer.</p> <p>Paragraph 50 of rule 29 of the police department of the city of New York forbidding police officers, without express permission, from making presents, bestowing testimonials or collecting or receiving money or anything else from citizens, etc., or from selling tickets for any purpose, does not prevent a police officer while off duty from asking a tradesman to deliver in packages sold to customers printed matter announeing the candidacy of the officer’s wife in a contest conducted by newspapers.</p> <p>Such act by a police officer is not ground for imposing a fine for violating said rule of the department.</p> <p>Thomas, J., dissented.</p>

<p>Municipal corporations — city of Mew York— breach of contract to build subway station with entrance to plaintiff’s building — failure to prove damage.</p> <p>Action to recover damages for an alleged breach of a contract made by the city of New York to construct a subway station giving an entrance to, or adjacent to, the plaintiff’s premises, by reason of which breach the plaintiff suffered a loss of rent. Evidence examined, and held, insufficient to justify a finding that the plaintiff was damaged by the failure of the defendant to build said entrance, and that a judgment for the plaintiff should be reversed and a new trial granted.</p>

<p>Appeal by the defendant, The Farmers’ Loan and Trust Company, as trustee, etc., from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 17th day of June, 1913, upon the decision of the court after a trial at the Westchester Special Term.</p>

<p>Pleading — complaint—breach of contract—fraud—alternative remedies—failure to state cause of action.</p> <p>A complaint as for a breach of contract to construct a manufacturing plant is bad where the plaintiff does not plead performance on his part. An allegation that the plaintiff “has fully and completely performed all the contract duties and obligations on his part to be performed and done,” is insufficient. Where the plaintiff does not state the facts, he should plead that he has “ duly” performed all the conditions on his part.</p> <p>If the complaint in such action is based on fraud, the plaintiff may rescind the contract and sue to recover the consideration paid, but in such case he must, first, restore or offer to restore that which he has received, or, second, he may sue for the rescission of the contract and obtain full relief, but in this case he must offer to restore the thing received, and be prepared to make tender thereof at trial; or, third, he may retain what he has received and sue at law for damages.</p> <p>A complaint which is silent as to restoration or offer of restoration, or does not properly plead performance, so as to bring the case within one of the three remedies aforesaid, does not state a cause of action.</p>

<p>Appeal by the plaintiff, Frank B. Frear, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 8th day of May, 1913, upon the decision of the court after a trial at the Kings County Special Term.</p>

<p>Appeal by the defendant, Wendell and Evans Company, etc., 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 24th day of April, 1914, upon the verdict of a jury for $12,500, 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>

Appeal by the plaintiff, Thomas F. Kevins, from part of 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 22d day of October, 1914, denying an inspection and discovery of defendant’s books from the 23d day of February, 1895, to the 1st day of January, 1912.

Appeal by the defendant, Edward M. Grout, 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 14th day of November, 1914, denying, without prejudice to a renewal thereof, defendant’s motion to supersede and set aside an indictment found against him October 11, 1911, and to dismiss the same for lack of prosecution; and defendant separately appeals from that part of said order, made upon…

Appeal by Montgomery S. Sandford and another, two of the executors and trustees under the last will and testament of Samuel K. Hester, deceased, from parts of a decree of the Surrogate’s Court of the county of Ontario, entered in the office of said Surrogate’s Court on the 20th day of February, 1914, settling the accounts of the executors and trustees herein but denying to the appellants commissions as executors and trusr tees and awarding to them only the specific…

Appeal by the defendants, Richard Irvin 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 Ulster on the 13th day of May, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of June, 1914, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Michael Dolan 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 Greene on the 5 th day of May, 1914, upon the decision of the court after a trial before the court without a jury.

Appeal by William Sohmer, as Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 25th day of May, 1914, in so far as it modified an order heretofore made in these proceedings assessing a transfer tax and exempted from the taxable assets one-half of certain joint savings bank accounts and one trust account held by the decedent as trustee.

Appeal by Benjamin Fagan, as executor, -etc., from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 30th day of July, 1914. ■

<p>Reargument of an appeal by the plaintiff, Kate Rumsey, from a judgment of the Supreme Court in favor of the defendants. (See 164 App. Div. 911, 923.)</p>

Appeal by the defendants, Frederick Dhuy 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 Kings on the 15th day of May, 1913, upon the decision of the court after a trial at the Kings County Special Term.

<p>Corporations — deceit — statement by president of corporation as to its financial condition — inducing stockholder to exchange bonds for stock to be issued — damages.</p> <p>A statement by the president of a corporation that it is in a flourishing condition and able to pay a six per cent dividend on preferred stock about to be issued for the purpose of improving its property and retiring its outstanding bonds, is not a sufficient basis for an action by a stockholder against him, to recover damages for deceit, although she claims to have relied on such statement in exchanging bonds held by her for the preferred stock, which was never delivered, and the corporation after such agreement defaulted for the first time in the payment of interest on its bonds.</p> <p>The statements by the defendant as to the financial condition of the cor poration, and the dividends which it could thereafter pay, were merely expressions of opinion.</p> <p>Even if the representations by the defendant were sufficient to sustain an action for deceit, it was reversible error to refuse to charge that the measure of damages was the difference between the value of the stock which the plaintiff received, or .was entitled to receive, and what it would have been worth had the representations been true.</p>

Appeal by the defendant, Felix Isman, 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 May, 1914, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 6th day of May, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Isidore D. Morrison, 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 Bronx on the 27th day of July, 1914, dismissing the complaint upon the decision of the court after a trial at the Bronx Special Term.</p>

<p>Landlord and tenant — right of one of several tenants to use of roof — damages not recoverable in suit in equity where right to equitable relief is not sustained.</p> <p>One of five tenants of a one-story building designed for business purposes only, holding under a lease describing the premises occupied by him as “the store and basement,” and not mentioning the roof, has no rights in the roof over the premises occupied by him, where access is possible only by a ladder from a hallway in the center of the building, which is in the exclusive control of the landlord.</p> <p>Hence, the tenant is not entitled to an injunction restraining the landlord and a billposting company to which the landlord had previously leased the roof from erecting signs thereon.</p> <p>The award of damages in a suit in equity is an incident to the enforcement of equitable rights, and cannot be made where plaintiff was not entitled to any equitable relief at the time the action was commenced. Hence, as the tenant failed to establish his right to any equitable relief, he cannot recover damages in such an action for injuries to the ceiling of the store, caused by water leaking from the roof.</p>

<p>Appeal by the defendants, J. Hadley McCollough and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of May, 1914, upon the decision of the court after a trial at the New York Special Term.</p>

<p>Corporation—validity of agreement to subscribe and pay for stock in a corporation to be formed — complaint.</p> <p>An agreement by a party to a contract for the formation of a corporation to “subscribe and pay for ” $19,000 of the preferred stock of the said corporation “or such portion thereof as maybe necessary to provide the said corporation with working funds and capital as a going concern,” is enforcible after the corporation has been organized and the other parties have fully performed the contract on their part.</p> <p>Complaint in an action for the enforcement of such a contract examined, and .held, to state a cause of action.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of January, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Roland R. Conklin, 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 7th day of April, 1914, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the defendant, 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 27th day of April, 1914, upon the report of a referee appointed to hear and determine the issues.</p>

<p>Executors and administrators—removal of administrator—refusal to prosecute action — when no violation of order of surrogate — practice —joinder of proceeding to appoint administrator with proceedings for removal.</p> <p>A temporary administratrix should not be removed from office on the ground that she has willfully refused or neglected without good cause to obey a lawful direction of the surrogate contained in an order or decree, or to obey a provision of the law relating to the discharge of a duty, contrary to subdivision 3 of section 3569 of the Code of Civil Procedure, where it appears that she did not disobey any order or decree of the surrogate, but merely refused to prosecute, as administratrix, an appeal in an action in which her intestate had been defeated, where it is shown that although the intestate had creditors she left a considerable estate in a foreign country of which an executor has been duly appointed.</p> <p>It is irregular to engraft upon a proceeding to appoint an administrator an entirely separate proceeding to remove her.</p>

Reargument of an 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, denying her motion to vacate and set aside an interlocutory judgment, to excuse her default and to permit her to interpose an answer.

Appeal by the defendant, Joseph K. Savage, 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 April, 1914, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Paul Armstrong, 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 September, 1914, denying the defendant’s motion for judgment on the pleadings after issue had been joined by the service of an answer.

Appeal by the plaintiff, Charles M. Winne, 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 6th day of April, 1914, upon the decision of the court, the parties having agreed upon a statement of facts and submitted the case.

Appeal by the defendants, The Canal Board 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 Washington on the 23d day of September, 1914, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, Dell Kingsley, from a judgment of the County Court of Warren county, rendered against him on the 18th day of November, 1914, convicting him of the crime of rape in the second degree.

Appeal by the defendant, Albert W. Ham, from a judgment of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 26th day of September, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of October, 1914, denying the defendant’s motion for anew trial made upon the minutes.

<p>Decedent’s estate — action upon quantum meruit for services rendered testatrix — agreement between plaintiff and testatrix construed.</p> <p>In an action to recover upon a quantum memit for services rendered the defendant’s testatrix, it appeared that while the plaintiff was in the employ of the defendant’s testatrix, the following agreement was signed in the presence of a witness and'delivered to her: “I hereby agree from this date to pay to Addie D. Plattenburg for the care of myself and house and services as heretofore, the sum of six dollars per week, & if she shall remain with me during my lifetime to provide for a generous sum to be paid to her at my decease with the distribution of my estate & it is agreed further that she shall be subject to the dictation and direction of only myself.” The plaintiff remained with the defendant’s testatrix for between seven and eight years, and until her death. She claims that her services were worth twenty-one dollars per week for the full time, upon which she credited six dollars per week paid and three hundred dollars received under the will, and asks a judgment for the balance.</p> <p>Held, that while the promise to pay a “ generous sum ” is too indefinite to be speculated upon by a jury, nevertheless there must be implied within that promise a definite agreement to pay the fair value of such services, which may be ascertained, and if they exceed the moneys received by the plaintiff she may recover therefor.</p>

Appeal by the defendants, Michael D. Murray and another, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Fulton on the 7th day of December, 1914, striking out the findings of fact, the exceptions thereto and the judgment in this action and directing a judgment of nonsuit, and also from the said judgment of nonsuit entered in said clerk’s office on the same day pursuant to the said order.

Appeal by the plaintiffs, Mary E. Fagan and another, 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 14th day of October, 1914, upon the decision of the court dismissing the complaint after a trial before the court without a jury.

Appeal by the defendant, North Hudson 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 Albany on the 13th day of July, 1914, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 30th day of July, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Emeline Dussault, from a judgment of the County Court of Schenectady county, entered in the office of the clerk of said county on the 5th day of June, 1914, upon the decision of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1914, awarding costs to the plaintiff against the defendant.

Appeal by the defendants, James F. Patterson 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 Schenectady on the 19th day of August, 1914, upon the decision of the court, a jury having been waived, and also from an order entered in said clerk’s office on the 10th day of September, 1914, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal hy the defendant, Burdick & Son, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 21st day of May, 1914, upon the verdict of a jury for $500, 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.</p>

Appeal by the plaintiff, Max Aronowitz, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 22d day of September, 1914, dismissing the complaint upon the decision of the court after a trial before the court without a jury.

<p>Replevin—pleading — claim of ownership coupled with claim of lien — effect of surrender of possession hy lienor.</p> <p>A plaintiff may recover in an action of replevin although the complaint contains two counts, one founded upon a claim, of ownership of the chattel and the other founded on a lien thereon.</p> <p>But where the jury finds that the plaintiff had no title there can be no recovery on the theory of the lien, if before action the plaintiff had voluntarily surrendered possession of the chattel to the defendant. Howard and Woodward, JJ., dissented.</p>

Appeal by the defendant, Burton D. Hulbert, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 23d day of October, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of November, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Sociological Research Film Corporation, 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 5th day of October, 1914, as overrules its demurrer to the first clause of action contained' in the amended complaint herein.

<p>Appeal by the plaintiff, Frederick S. Taggart, individually and as executor and trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of July, 1914, denying plaintiff’s motion for judgment on the pleadings, after demurrers had been filed to the complaint.</p>

<p>Appeal by the defendant, Metropolitan 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 23d day of May, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of May, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Jacob Ruppert, 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 June, 1914, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Shubert Theatrical 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 23d day of October, 1914, sustaining a demurrer to the first affirmative defense in the answer.

Appeal by the defendant, City of Kingston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 8th day of May, 1914, affirming a judgment of the City Court of the City of Kingston, and also from the order upon which said judgment was entered.

<p>Will — execution — instrument must be read to blind testator — statutory action to test validity of probate— evidence —burden of proof.</p> <p>On a proceeding to probate a will the proponent must satisfy the surrogate that it was executed with all the formalities required by law and, if the testator was blind, he must show that he was made aware of the full contents of the paper he was executing. This rule, however, refers to the probate of a will by the surrogate.</p> <p>Where an action is brought under section 2653a of the Code of Civil Procedure to test the validity of such probate, the decree of the surrogate admitting the will to probate is declared by the statute to be prima facie evidence of due execution and of the validity of the will. Hence, the burden is shifted to the plaintiff in such action to show lack of due execution and validity, and where he claimed that the testator was blind and that the instrument was not read to him, he is under the burden of showing such facts. The proponent-defendant is not under the burden of showing that the will was in fact read over to the testator.</p>

<p>Oertioraei issued out of the Supreme Court and attested on the 1st day of June, 1914, directed to Clarence W. Smith, as mayor, and others, commanding them to certify and return to the office of the clerk of the county of Fulton all and singular their proceedings had in regard to the construction of a sewer in 'the city of Johnstown and the assessment of the cost thereof, and also the determination of the common council of the said city in affirming the relator’s assessment therefor.</p>

Certiorari issued out of the Supreme Court and attested on the 1st day of June, 1914, directed to Clarence W. Smith, as mayor, and others, commanding them to certify and return to the office of the clerk of the county of Fulton all and singular their proceedings had in regard to the construction of a sewer in the city of Johnstown and the assessment of the cost thereof, and also the determination of the common council of the said city in affirming the relator’s assessment…

Certiorari issued out of the Supreme Court and attested on the 1st day of June, 1914, directed to Clarence W. Smith, as mayor, and others, commanding them to certify and return to the office of the clerk of the county of Pulton all and singular their proceedings had in regard to the construction of a sewer in the city of Johnstown and the assessment of the cost thereof, and also the determination of the common council of the said city in affirming the relator’s assessment…

Appeal in the first action by the defendants, Katharine Weldon and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 16th day of October, 1914, upon the decision. of the court after a trial before the court without a jury.

Appeal by the plaintiff, The Meritas Realty Company, from a judgment of the Supreme Court in favor of the defendant Edson J. Farley, entered in the office of the clerk of the county of Nassau o.n the 29th day of June, 1914, upon the decision of the court, dismissing the complaint, after a trial at the Nassau Special Term.

<p>Master and servant — negligence — death caused by defective scaffold — breaking of hoisting rope — proof justifying recovery — pleading — cause of accident — parties—liability of corporation as secret principal— employment of laborers through medium of other corporation — husband and wife — common-law marriage.</p> <p>Action against a master brought under the Labor Law to recover for the death of an employee. The deceased was standing with a fellow-servant upon a scaffold consisting of an ordinary painter’s ladder with boards laid on the rungs. While it was being hoisted into position by other employees by means of ropes which were suspended from a tower of masonry, one of the ropes broke, allowing the scaffold to fall. There was evidence that the rope had been in bad condition on the day prior to the accident and that the defendant’s foreman had been given notice of that fact. This was denied by the defendant, who claimed that the rope had been accidentally cut by the decedent. There was a conflict of evidence as to whether the workmen who were hoisting the scaffold into place were “skylarking” at the time. On all the evidence;</p> <p>Held, that there was a case for the jury under section 18 of the Labor Law and that a judgment for the plaintiff should not be disturbed. Under a complaint alleging that the rope “was defective and was old and worn out,” the plaintiff may recover upon evidence that the rope was in bad condition, although in fact it was comparatively new.</p> <p>•Although the decedent, while working, was in the employ of a corporation which paid him and directed his work, and which apparently was acting as an independent subcontractor, the plaintiff may prove that such corporation was merely a “paper corporation” organized and controlled by another corporation, also made defendant, for the purpose of conducting the laboring work on contracts undertaken by it, and that it furnished all materials and tools to the subcontractor and advanced all moneys for the purpose of paying its employees, thus making it in fact a secret principal and liable as such. The fact that the subcontractor is a distinct corporate entity does not make proof of the facts aforesaid incompetent.</p> <p>The decedent, when living in Italy, had entered into meretricious relations with the plaintiff at a time when she had a husband and he had a wife living. Thereafter they came to this country and cohabited together in all respects as husband and wife, and children were born to them and baptized with the father’s name. During this intercourse, but before the year 1911, the decedent’s lawful wife died, and at about the same time the plaintiff received a letter from a relative in Italy informing her that her lawful husband had committed suicide, he having left her for places unknown many years before. After this information the parties again agreed together to be lawful husband and wife. On all the evidence;</p> <p>Held, that a finding by the jury that the plaintiff was the lawful wife of the decedent so as to be entitled to maintain an action to re’eover damages for his death, and that the children of said marriage had become legitimate, was justified.</p>

Appeal by the plaintiff, Rosie Curry, 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 9th day of January, 1914, upon the dismissal of the complaint by direction of the court at the close of the case.

Separate appeals by the defendants, Smith Hoisting 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 Kings on the 20th day of March, 1914, upon the. verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of March, 1914, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Orlando T. Carpenter and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 5th day of January, 1914, overruling their demurrer to the complaint.

Separate appeals by Haverstraw Crushed Stone Company and another from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Rockland on the 30th day of October, 1914, granting a motion of the Commissioners of the Palisades Interstate Park for leave to discontinue these condemnation proceedings and setting aside part of an order of the Special Term made on the 16th day of January, 1914, which had confirmed…

Appeal by the defendants, Seventy-fourth Street 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 Bronx on the 4th day of May, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of May, 1914, denying the appellants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary E. Cramer, from an order of the Supreme Court, made at the Saratoga Trial Term and entered in the office of the clerk of the county of Saratoga on the 3d day of August, 1914, setting aside the verdict of a jury in plaintiff’s favor and granting defendant’s motion for a new trial.

Appeal by Salvatore Iovinella, contestant, from an order of the Supreme Court, made at the Schenectady Trial Term and entered in the office of the clerk of the county of Schenectady on the 4th day of January, 1915, striking the above-entitled proceeding from the calendar of the Supreme Court and sending it back to the Surrogate’s Court of Schenectady county for trial and determination.

Appeal by the defendant, City of Glens Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 22d day of July, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes-.

Appeal by the defendant, James 0. Fargo, as president, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Greene on the 19th day of November, 1913, upon the verdict of a jury for $2,387.50, and also from an order entered in said clerk’s office on the 25th day of November, 1913, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Harma D. French, as committee, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 1st day of December, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of December, 1913, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Florence Skillin Cloyd and another, from part of 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 Nassau on the 7th day of July, 1914, upon the decision of the court after a trial at the Nassau Special Term.

Appeal by the plaintiff, Base Ball Players Fraternity, Inc., 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 1st day of July, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 26th day of May, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by Union Railway Company of New York City, from a decision and award of the State Workmen’s Compensation Commission, filed in the office of said Commission and dated on the 23d day of October, 1914, awarding compensation at the rate of five dollars and four cents a week to the widow, Elizabeth Kenny, and the sum of one dollar and sixty-eight cents per week to Mary Kenny, daughter of the deceased, and to John Kenny, son of the deceased, together with the sum of one…

Appeal, in the first proceeding, by John H. B. Boyle, individually and as executor and trustee, etc., of John Boyle, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 5th day of August, 1912, granting the application of Phcebe A. D. Boyle herein.

Appeal by the relator, Charles Bullock, 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 25th day of November, 1914, dismissing a writ of habeas corpus.

Appeal by the defendant, Alfred G. Borsch, from a .judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 8th day of April, 1914, affirming a judgment rendered by a judge of said court, sitting as a Magistrate’s Court of the city of New York, rendered on the 26th day of March, 1914, convicting the defendant of disorderly conduct.

Appeal by the defendant, Knickerbocker Savings and Loan .Company, and Eugene Lamb Richards, Jr., as Superintendent of Banks, etc., 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 24th day of April, 1914, upon the decision of the court, both sides having moved for the direction of a verdict at the close of the case, and also from an order entered in the said clerk’s office on the same day,…

Appeal by the plaintiff, Raymond Concrete Pile Company, from a judgment of the Supreme Court in its favor, entered in the office of the clerk of the county of Kings on the 26th day of February, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 14th day of March, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James Murray, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 29 th day of April, 1914, upon the decision of the court after a trial at the Westchester Special Term.

Certiorari issued out of the Supreme Court and attested on the 16th day of June, 1914, directed to Edward Stetson Griffing, as mayor of the city of New Rochelle, commanding him to certify and return to the office of the clerk of the county of Westchester all and singular his proceedings had in removing the relators as commissioners of health of the city of New Rochelle.

Appeal by the defendant, Fannie M. Constable, from an order of the Supreme Court, made at the Richmond Trial Term and entered in the office of the clerk of the county of Richmond on the 25th day of August, 1914, setting aside the verdict of a jury herein in her favor, and granting plaintiff’s motion for a new trial.

Appeal by James W. Osborne, as executor and trustee, etc., from part of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on or about the 18th day of June, 1914.

Habeas corpus issued out of the Supreme Court, Appellate Division, on the 25th day of January, 1915, to inquire into the detention of the relator, Wolden Kieley, in the city prison of Yonkers. The hearing was had and opinion rendered upon the return of the original writ.

<p>Appeal by the defendants, Howe & Rogers 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 Monroe on the 19th day of August, 1914, upon the decision of the court after a trial at the Monroe Equity Term.</p>

Appeal by the plaintiffs, Charles Fillmore and another, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Oneida on the 23d day of July, 1914, upon the decision of the court, after a trial at the Oneida Special Term.

<p>Real property — specific performance—when title marketable — no implied covenant that streets named as boundary have been legally opened — location of bulkhead line — filling beyond bulkhead line.</p> <p>Where a contract for the sale of lands describes the same as bounded by certain streets shown on a specified map and by the shore of the Harlem river, as laid down on a certain map in conformity with the exterior lines as established by the harbor commissioners and subject to the rights of the Federal government to control the use of so much of the premises as lies outside the bulkhead line, etc., there was no implied covenant by the vendor, who claimed no fee or other rights in the highway, that the said streets bounding the land had been legally opened and formed existing streets. Hence, the vendee will be compelled specifically to perform. Such contract is not incomplete in that the location of the bulkhead line is not fixed therein, for the conveyance is expressly to be made subject to the public rights beyond the bulkhead line established by the Federal authorities.</p> <p>The vendor was not obliged to inform the vendee of the location of the bulkhead line where the attention of the vendee was directed to the fact that it existed, and it failed to ascertain the location by inquiring of the vendor, or by resorting to the public records.</p> <p>A.S the location of the bulkhead line was not a fact peculiarly within the knowledge of the vendor no affirmative duty rested upon him to make disclosure thereof to the vendee.</p> <p>Any filling which may have been made beyond the bulkhead line does not constitute an incumbrance, where there is no proof that the filling was done without Federal authority.</p>

Appeal by the plaintiff, Henry Blau, 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 15th day of October, 1913, upon the decision of the court dismissing the complaint after a trial at the New York Trial Term, a jury having been waived.

Appeal by Stanley Buway, tenant, from an order of the County Court of Erie county, entered in the office of the clerk of said county on the 12th day of May, 1914, awarding the possession of certain premises described in the petition to the petitioner, Wincenty Szpakowski, and directing that a warrant issue to remove the appellant from said premises.

Appeal by the defendant, William Corcoran, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Tates on the 19th day of August, 1914, denying defendant’s motion for an order vacating an interlocutory judgment in plaintiff’s favor entered in said clerk’s office on the 1st day of July, 1914; also, an appeal from a final judgment in favor of the plaintiff, entered in said clerk’s office on the 19th day of…

<p>Insurance — policy guaranteeing credit of customers — contract construed— amount of initial loss to be borne by insured.</p> <p>Action upon a contract whereby the defendant insured the credit of the plaintiff’s customers. The policy guaranteed the plaintiff against loss, to an amount not exceeding $5,000 on accounts covered thereby in excess of an initial loss to be borne by the plaintiff of one-half of one per cent, but in no event to be less than $750 on the gross aggregate amount of guaranteed sales up to $200,000, and a smaller percentage if in excess of $200,000. It was provided that no account against any one debtor should be covered for more than $2,000, while a “rider” attached to the policy provided that in the event of the insolvency of an individual debtor coming within the terms of the contract who owed the plaintiff in excess of the $2,000 limit, such excess not exceeding $1,000 (thereby increasing the single account limit to $3,000) shall be taken into calculation of losses under the contract subject to all other terms of the contract, in such event, however, the initial loss of not less than $750 to be paid by the plaintiff to be “increased by such sum as will equal one-half of the difference between the original single account limit as above specified and the largest single account reported in excess thereof, within the limit above specified.” Contract construed, and</p> <p>Held, that the rider merely increased the defendant’s liability upon each single account from $2,000 to $3,000;</p> <p>That construing the contract and “rider” together, where the plaintiff suffered a loss of over $3,000 on a single customer, the deduction by way of initial loss to be borne by the plaintiff should be made, not from the $3,000 limiting the defendant’s liability, but from the amount of loss sustained by the plaintiff on a single account, and that the defendant should be held liable for the balance, up to the sum of $3,000;</p> <p>That the additional initial loss to be paid by the plaintiff as provided in the rider is one-half the difference between the original single account limit specified in the rider, which was $2,000, and the largest single account reported in excess thereof within the limits specified in the rider, which was $3,000, which amounts to $500.</p>

Appeal by the defendant, Royal Benefit Society, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 20th day of April, 1914, upon a decision of the court after a trial at the Yew York Special Term, and also, as stated in the notice of appeal, from the decision upon which said judgment was entered.

Appeal by the plaintiff, James M. Donohue, as receiver, etc., from so much of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 2d day of July, 1914, upon a decision of the court after a trial at the New York Special Term, as adjudges that the complaint be dismissed on the merits as to the respondents.

Appeal by Protestant Episcopal House of Mercy from an order of the County Court of Bronx county, entered in the office of the clerk of said county on the 15th day of July, 1914, reversing a judgment of commitment of the Children’s Court for the county of Bronx, and ordering a new trial in this action.

<p>Motor vehicles — negligence — death of pedestrian struck by automobile while crossing street at intersection — contributory negligence — verdict against weight of evidence.</p> <p>In an action to recover for the death of plaintiff’s intestate, claimed to have been caused by the negligence of defendant’s chauffeur, it appeared that the deceased, a man fifty-nine years of age, started to cross the street at a point of intersection with another street, and after reaching a space between two surface railway tracks, upon hearing the horn from defendant’s automobile, which was then between twenty and forty feet from him, threw up his hands, took one or two steps back in front of the automobile and was instantly hit. He had looked in the direction in which the automobile was coming just before he started, and looked again in that direction while stepping back. The automobile was running at a speed of between eleven and twelve miles an hour, with lamps lighted, and there were no vehicles obstructing the street.</p> <p>Held, that a verdict that the decedent was free from contributory negligence, and that the accident was caused solely by the negligence of the defendant’s chauffeur, was against the weight of the evidence. LAUGHUif and Hotchkiss, JJ., dissented.</p>

Appeal by the plaintiffs, Harry Brown and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of January, 1914, upon the dismissal of the complaint by direction of the court on the opening.

Certiorari issued out of the Supreme Court and attested on the 13th day of March, 1914, directed to Douglas I. McKay, as police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in removing the relator as a member of the police department of the city of New York.

<p>Cross-appeals, in the first action, by the plaintiff, Josephine M. Fairchild, and the defendants, White Plains Development Company and another, from parts 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 Westchester on the 24th day of June, 1914, upon the decision of the court after a trial at the Westchester Special Term.</p> <p>Appeal, in the second action, by the plaintiff, White Plains Development Company, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Westchester on the 10th day of June, 1914, upon the decision of the court after a trial at the Westchester Special Term.</p> <p>Suit to foreclose a purchase-money mortgage given by Eeed to the Scarsdale Estates, which was reduced by payments to $175,000.</p> <p>One controversy arises over the ownership of a $25,000 subordinate interest in this mortgage. The Scarsdale Estates assigned the mortgage which, after mesne assignments, came to the plaintiff. The Scarsdale Estates claim the $25,000 interest, The plaintiff also claims it. The defendants the White Plains Development Company, as owner of the equity, and the Guardian Trust Company, as second mortgagee, claim that the $25,000 interest should be reduced by about $10,000, with interest, on account of shortage in the acreage. The defendant Scarsdale Estates served no answer, hut the question of shortage in acreage was tried and decided as if that issue had been raised by proper pleadings. A separate action has been begun by the White Plains Development Company against Eeed, Scarsdale Estates and others, to recover from the Scarsdale Estates the same sum of $10,000, with interest, for the same shortage. The defendant Eeed was never served ■in this suit and was struck out as a party but remained a party to the other action. The separate action brought by the White Plains Development Company was tried at the same time as the foreclosure suit, and the issue as to shortage in acreage decided in favor of the Scarsdale Company.</p> <p>It is undisputed that the plaintiff was entitled to $150,000, with interest, etc.</p> <p>The contract for the sale of the lands on which the purchase-money mortgage was given, made between the Scarsdale Estates and the defendant Eeed, after describing the property by metes and bounds, provided that a certain sum should be deducted from the purchase price for every acre of shortage which might be found on a subsequent survey, the amount deducted to he secured by a second mortgage.</p>

Appeal by the plaintiff, Holland Laundry, 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 29th day of June, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Metropolitan 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 Oneida on the 24th day of January, 1914, upon the verdict of a jury, and also from so much of an order entered in said clerk’s office on the 2d day of September, 1914, as denies defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, John P. Rupp 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 Erie on the 23d day of January, 1914, upon the verdict of a jury for $150, found as the actual damages sustained by plaintiffs, which amount, after the verdict on motion of the plaintiffs, was trebled by the court and judgment entered accordingly; also, an appeal from an order entered in said clerk’s office…

Appeal by the relator, New York, Ontario and Western Bailway Company, from an order of the Supreme Court, made at the Herkimer Special Term and entered in the office of the clerk of the comity of Oswego on the 26th day of August, 1914, in so far as the same refuses to confirm the report of the referee herein, or modifies said report; also, an appeal from the findings contained therein, and particularly from that part of the said order which determines that the overhead…

<p>Will — revocation — presumption where will cannot be found — evidence — contents of lost will —when communications to attorney not privileged.</p> <p>Where a will which in terms revoked all prior wills was delivered to the testatrix and it cannot be found after her death or its whereabouts accounted for, it is presumed that it was destroyed by her with an intention to revoke it.</p> <p>Where directions for the preparation of a will were given by the testatrix to an attorney in the presence of a third person, her friend, and the will when drawn was read to the testatrix in the hearing of said person,.the attorney after the death of the testatrix is competent to testify both to the execution of the will and to the fact that it contained a clause revoking all former wills, for under such circumstances the prohibition contained in section 835 of the Code of Civil Procedure does not apply.</p> <p>Appeal by Flora Gray Smith, legatee, from a decree of the Surrogate’s Court of the county of Steuben, entered in the office of said Surrogate’s Court on the 18th day of March, 1914, denying probate to an instrument in writing purporting to he the last will and testament of Ellen Bennett, deceased.</p>

Appeal by the plaintiff, Metropolitan Trust Company of the City of New York, individually and as administrator, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of August, 1914, denying its motion for an injunctionperoderefe lite herein, and also from an order entered in said clerk’s office on the 26th day of October, 1914, resettling the prior order.

Appeal by the plaintiff, Metropolitan Trust Company of the City of New York, individually and as administrator, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of October, 1914, sustaining demurrers to the complaint interposed by the respondents.

Appeal by the defendant, Louis H. Morris, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1914, overruling his demurrer to the amended complaint.

Appeal by the plaintiff, Hyman Heller, 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 17th day of December, 1914, confirming the report of a referee and vacating a judgment herein.

Appeal by the relator, Tinton Building Corporation, 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 the 13th day of January, 1915, denying its motion for a peremptory writ of mandamus.

Appeal by the plaintiff, G-uiseppe Sciaballa, 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 20th day of October, 1914, upon the decision of the court dismissing the complaint upon the merits, the facts having been stipulated and the matter submitted.

Appeal by the plaintiff, Ida Cohen, 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 20th day of October, 1914, upon a decision of the court dismissing her complaint upon the merits, the facts having been stipulated and the matter submitted.

Appeal by the defendant, Minsker Realty 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 28th day of December, 1914, denying its motion for a stay of all proceedings herein.

<p>Appeal by the defendant, Purssell Manufacturing Company, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on or about the 19th day of November, 1914, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, fifth district.</p>

Motion by plaintiff to amend or resettle order and judgment of this court on an appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff and from an order denying defendant’s motion for a new trial, and to amend or resettle an order of this coiirt on an appeal herein from an order of the Special Term denying defendant’s motion to vacate the judgment and for a new trial on the ground, among others, of the failure of the defendant to plead and prove…

Appeal by the defendant, Arthur A. Brown, 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 8th day of July, 1914, upon a decision of the court after a trial at the Kings County Special Term. The judgment directed the defendant to account for certain moneys and appointed a referee.

Appeal by the defendant, Charles Horace Godfree, appearing specially for that purpose, 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 16 th day of December, 1914, denying his motion to vacate an order permitting the service of the summons herein by publication, and also from an order entered in said clerk’s office on the 8th day of December, 1914, permitting the plaintiff to supply…

Appeal by the defendant, Valley Stream Eealty 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 7th day of January, 1915, upon the decision of the court after a trial at the New York Trial Term, a jury having been waived.

Appeal by the plaintiff, Bridget Lamour, 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 Essex on the 12th day of October, 1914, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, The 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 Eensselaer on the 16th day of May, 1914, upon the decision of the court, the facts having been stipulated and submitted for determination to the court without a jury.

Appeal by Bessie L. Rubens, as surviving executrix and trustee, from two orders of the Surrogate’s Court of the county of Putnam, entered in the office of the said Surrogate’s Court on or about the 31st day of December, 1914. The first order restrained the appellant from disposing of property belonging to the estate of George L. Fox, deceased, and the other directed her to render and file an account of her proceedings herein.

Appeal by the defendant, Samuel Palley, 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 14th day of December, 1914, denying the defendant’s motion for a jury trial.

Appeal by the plaintiff, Isidor Wiesbader, 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 January, 1915, denying his motion for an injunction pendente lite.

Appeal by the defendants, Fanne Curtis Hoadley and Joseph H. Hoadley 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 Y ork on the 7th day of January, 1914, as resettled by an order entered in said clerk’s office on the 17th day of January, 1914, which order directs Fanne Curtis Hoadley, Alfred H. Hoadley and Ralph P. Buell to pay a certain bid made by them herein.

Appeal by the plaintiff, The Ullman-Einstein Company, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Broome on the 18th day of November, 1913, opening a default, and also from an intermediate order entered in said clerk’s office on the 15th day of October, 1913, staying proceedings herein.

Appeal by the defendant, Borough Bank of Brooklyn, 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 April, 1914, 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 8th day of May, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Blanche J. Ferber, from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 5th day of March, 1915, denying her motion to vacate an order directing the trial of issues herein and for judgment on the pleadings, or in the alternative for an order directing judgment in her favor sustaining a demurrer to a separate defense alleged in respondent’s answer.

Appeal by the plaintiff, Lawrence Hull, as trustee, etc., 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 4th day of February, 1915, directing the return of certain money to the receiver herein and declaring him to be still in possession of certain property with the right to a counsel fee.

<p>Practice — pleading •—■ amendment of answer — sufficiency of affidavit — verification—failure to serve amended answer within time allowed — costs.</p> <p>An affidavit made by the attorney on a motion for leave to serve a further amended answer, which shows no reason why it was not made by one of the defendants, fails to show any personal knowledge of the attorneyas to the facts sought to be pleaded, discloses no reason why all of the facts could not have been ascertained before, and does not contain an affidavit of merits, is insufficient.</p> <p>A proposed amended answer should be verified.</p> <p>A failure to serve an amended answer within the time allowed by law should be explained and excused.</p> <p>An amended answer should not be allowed after the time required by law, except upon substantial terms.</p>

Appeal by the defendant, Solon E. Turner, 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 15th day of December, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 12th day of December, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Cross-appeals by the petitioner, John T. Bladen, as committee, etc., and by the Brooklyn Trust Company, as committee, etc., from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 29th day of September, 1914, confirming the report of a referee herein judicially adjusting and determining an account of the committee of the person of Samuel E. Haslett, an incompetent, and fixing the compensation of the committee with an award…

Appeal by the petitioners, J. Edward Simmons and others, constituting the board of water supply of the city of New York, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of August, 1914, as resettled and amended by an order entered in said clerk’s office on the 25th day of November, 1914, denying a motion of the city of New York that George N. Rigby, one of the…

Appeal by the relator, Schenectady Illuminating Company, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Schenectady on the 31st day of August, 1914, denying relator’s application for a peremptory writ of mandamus directing the board of supervisors of the county of Schenectady to reconvene and reconsider their action in disallowing its claim for the price of certain electric lamps sold to said…

Appeal by the plaintiffs, J. Langdon Ward and others, 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 22d day of December, 1914, denying their motion for a separate trial of the issues arising on a counterclaim pleaded by the defendant.

<p>Carrier — refusal of consignee to accept goods — Carmack Amendment to Interstate Commerce Act construed — failure of final carrier to return goods to consignor —initial carrier not liable for such failure — return of goods involves new contract—duty of consignor when consignee refuses to accept.</p> <p>Under the so-called Carmack Amendment to the Interstate Commerce Act an initial shipper is hable not only for the negligent acts and omissions of its employees, but of those of connecting carriers resulting in loss to the goods en route, and also for any loss resulting from the failure of the final carrier to notify the consignee of the arrival of the goods at destination, and for its failure on the consignee's refusal to accept them to store the goods for the account of the shipper or to exercise proper care in holding them for him.</p> <p>But where there is no notation on a bill of lading or elsewhere with respect to notifying the shipper, or any one, it is presumed that the consignee is the owner, and hence, where the consignee notified the consignor before shipment that he would not accept the goods, the initial carrier is not liable either at common law or under the Interstate Commerce Act, to the consignor, because the final carrier did not notify him that the consignee refused to accept.</p> <p>Even assuming that it was the duty of the final carrier to notify the ship per that the consignee refused to accept, and that the initial carrier would be liable for such failure of the final carrier (which rule is not decided), there can be no recovery against the initial carrier, without proof of the resulting damage which is essential to a recovery under the statute.</p> <p>Where it appears that the consignee was duly notified that the goods had arrived and refused to accept them, and they were then properly stored and kept by the final carrier, and the consignee himself notified the consignor of these facts, it was the duty of the latter to request that the goods be returned to him if he wished to avert loss or damage.</p> <p>Quaere, as to whether, under the Federal statute, the initial carrier remained liable for the acts or omissions of the final carrier, when it became a warehouseman after the refusal of the consignee to accept. In the absence of a provision in the bill of lading, neither the common law nor the Federal statute requires the initial carrier to return the goods in the event that the consignee refuses to accept. Such obligation to return can arise solely from a new contract negotiated after the refusal to accept.</p> <p>The Federal statute holds the initial carrier liable only under the original shipment, and not for a failure of the final carrier to enter into a new contract with the consignor to reship the goods after the consignee has refused to accept.</p> <p>Hotchkiss, J., dissented, with opinion.</p>

Appeal by the defendants, Village of Pelham and another, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of March, 1915, granting a peremptory writ of mandamus.

Appeal by the plaintiff, Thomas A. Moorehead, 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 24th day of April, 1914, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, Conron Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 16th day of June, 1914, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 15th day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, C. Adelbert Becker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of February, 1914, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 16th day of February, 1914, denying his motion for a new trial made upon the minutes. The defendant partners also appealed from the judgment, hut settled with the plaintiff before the hearing of the appeal.</p>

Appeal by the plaintiff, Samuel Stem, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of October, 1914, denying his motion for a bill of particulars of certain allegations pleaded in a separate defense contained in the answer.

Appeal by the plaintiff, Maddalena Restivo, as administratrix, etc., from so much of 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 7th day of January, 1915, as determines and fixes the amount of the lien of plaintiff’s former attorney, respondent herein, at one-third of any sum recovered by the plaintiff in this action.

<p>Appeal by the defendant, David Fuchs, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 10th day of December, 1914, affirming a conviction and sentence of the defendant by a city magistrate of the city of New York convicting defendant of a violation of sections 2142 and 2143 of the Penal Law.</p>

Appeal by the defendant, William H. Young, from part of 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 15th day of April, 1912, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, John Benyak, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of December, 1914, denying his motion for an order directing that Marie Benyak, his wife, be • joined as a party plaintiff in the action and that the summons and complaint herein be amended by adding her name thereto as a party plaintiff.

<p>Appeal by the plaintiff, Ernesto Bitolio, 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 a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.</p>

Appeal by the relators, David Woronoff 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 23d day of July, 1912, dismissing a writ of habeas corpus and remanding the relators to custody.

Appeal by the plaintiff, Lillius Grace, 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 7th day of May, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 6th day of May, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by William A. Prendergast, as comptroller, etc., 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 14th day of September, 1914, granting petitioner’s motion for a peremptory writ of mandamus.

<p>Appeal by the plaintiff, Charles A. Barker, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of November, 1914.</p>

<p>Pleading — action in replevin by transferee against bailee — inter, pleader of bailor —right of trustee in bankruptcy of bailor to set up preferential transfer as counterclaim.</p> <p>Where, after the commencement of an action for replevin by a transferee of certain property against the bailee thereof, the original bailor was substituted as a defendant, pursuant to section 830 of the Code of Civil Procedure, and thereafter was adjudicated a bankrupt, and, although the order of interpleader changes the action from one at law to one in equity, the parties consented to try it as one at law, the right of the trustee in bankruptcy to avoid the transfer to the plaintiff as a voidable preference is “connected with the subject of the action” within the meaning of subdivision 1 of section 501 of the Code of Civil Procedure, and may be interposed as a counterclaim.</p>

Appeal by the relator, George Chambers, from an order of the county judge of Steuben county, entered in the office of the clerk of said county on the 16th day of November, 1914, dismissing the writ of certiorari herein and sustaining the action of the county treasurer, without costs.

Appeal by the plaintiff, Cream of Wheat Company, from two judgments of the Supreme Court in favor of the defendant, one in each action, both entered in the office of the clerk of the county of Otsego on the 6th day of July, 1914, dismissing the complaint in each action upon the merits upon the report of a referee.

Appeal by the plaintiff, Peter Furlong, from a judgment of the Supreme Court in favor of the defendant, entered hi the office of the clerk of the county of Schenectady on the 4th day of October, 1913, upon the verdict of a jury rendered by direction of the court.

Appeals by the plaintiff from four orders of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the Í7th day of June and the 1st, 14th and 30th days of July, 1914, respectively.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 9th day of June, 1914, in favor of the plaintiff, and also from an order bearing date the 8th day of June, 1914, and entered in said clerk’s office, denying a motion for a new trial.

Appeal by George S. Hice, as one of the executors of and a claimant against the estate of William C. Roberts, deceased, from part of a decree of the Surrogate’s Court of Kings county, entered in said court on the 21st day of April, 1913.

Appeal by the defendants from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 24th day of January,- 1914.

Appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendants, made at Special Term and entered in the office of the clerk of the county of Kings on the 31st day of February, 1914.

Certiorari issued out of the Supreme Court, attested on the 11th day of December, 1913, to review a determination of the police commissioner of the city of New York in dismissing the relator, a patrolman, from the police force of said city, after trial before a deputy commissioner, on charges of conduct unbecoming an officer and violation of department rules.

<p>Appeal from a judgment of the Supreme Court, entered in the Oneida county clerk’s office on the 17th day of January, 1914.</p>

Appeal by defendant from a judgment of the Supreme Court, entered in the G-enesee county clerk’s office March 10, 1914, for the recovery by plaintiff of the possession of certain lands in the village of Batavia, in ejectment, without damages, and from an order entered on the 27th day of March, 1914, denying the defendant’s motion to set aside the verdict and for a new trial.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 25th day of November, 1914, directing the plaintiff to give security for costs.</p>

<p>Mortimer Bartlett and the Albany Apartments Corporation, Appellants; Lindsay, Kalish & Palmer and Henry A. Wise, as Receiver, Respondents.</p>

<p>Appeal from part of an order of the Supreme Court, entered in the New York county clerk’s office on the 2d day of December, 1914, directing the plaintiff to serve a bill of particulars.</p>

<p>Zibet — complaint.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 30th day of November, 1914, granting the plaintiff’s motion for a bill of particulars.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 18th day of April, 1914, dismissing the complaint.</p>

<p>Master and servant—negligence — defective cable.</p>

<p>Railroads —franchise — limitation of fares.</p>

Appeal by the defendant from an order of the Supreme Court made at Special Term, entered in the office of the clerk of the county of Kings on the 14th day of May, 1914, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, Temple Bar Realty Co., Inc., from an order of the Supreme Court, made at Special Term, entered in the office of the clerk of the county of Kings on the 3d day of September, 1914.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 14th day of November, 1913, on the verdict of a jury in favor of the plaintiff, and from an order entered in said clerk’s office on the 1st day of May, 1914, denying its motion for a new trial.

<p>Motion for resettlement of an order, entered in this court on the 30th day of November, 1914, so as to provide that the costs and disbursements awarded to the appellant shall abide the event of the action.</p>

Appeal by the defendants from a judgment of the Sullivan County Court, entered in the clerk’s office of that county on the 24th of March, 1914, upon the verdict of a jury, and from an order entered on the 6th day of April, 1914, denying the defendants’ motion for a new trial upon the minutes.

<p>Appeal from a judgment of the Supreme Court, entered in the Schenectady county clerk’s office on the 3d day of April, 1914, and also from an order entered on the 2d day of April, 1914.</p> <p>Judgment and order affirmed, with costs. All concurred, except Woodward, J., dissenting in opinion.</p>

<p>Master and servant — negligence — incompetent fellow-servants.</p>

Appeal by the defendant, Byron C. Horton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 18th day of August, 1913, upon the decision of the court after a trial at the Oswego Special Term, and also from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Oswego on the 9th day of December, 1913, denying defendant’s motion for…

Appeal by the Grade Crossing Commissioners, New York Central and Hudson River Railroad Company and the City of Buffalo from the report of the commissioners appointed herein dated June 17, 1913, and the order of the Special Term of Brie county confirming the same, entered in the Brie county clerk’s office April 23, 1914, which report awarded to the Barber Asphalt Paving Company, Parcel Ho. 1, $60,000; International Rail-way Company, Parcel Ho. 2, $19,000; August Uihlein,…

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 2d day of July, 1914, dismissing the plaintiff’s complaint. Judgment affirmed, with costs. All concurred, except Kruse, P. J., who dissented in a memorandum.

Appeal by the Diocese of Buffalo and certain judgment creditors of the defendant Polish Roman Catholic Church, from an order of the County Court of Brie county, entered in the office of the clerk of said county on the 21st day of December, 1914, permitting the defendant Pendock Company to be subrogated to the rights of the plaintiff in respect of the bond and mortgage described in the complaint and the judgment of foreclosure and sale herein, upon payment of certain moneys…

<p>Appeal from a judgment of conviction of the Steuben County Court rendered against the defendant on the 11th day of March, 1914.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Steuben county clerk’s office on the 23d day of January, 1914, and also from an order entered on the 25th day of May, 1914.</p>

Appeal by plaintiff, The City of Lockport, from the report of the commissioners of appraisal and the order confirming their report and the final order of condemnation entered in Niagara county on December 81, 1913, awarding to the defendant, the Tonawanda Iron and Steel Company, damages to the amount of $70,119.32 and $1,652.26 costs. Fifteen hundred dollars of the costs was an extra allowance granted in the order confirming the commissioners’ report.

<p>Appeal from an order of the Supreme Court, entered in the Broome county clerk’s office on the 17th day of December, 1913.</p>