Volume 168 — New York Appellate Division Reports

Appeal by the defendant, Realty Associates, 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 6th day of March, 1915, denying its motion for judgment on the pleadings, and overruling its demurrer to the complaint.

Appeal by the defendant, Arthur Woods, as police commissioner, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of February, 1915, as resettled by an order entered in said clerk’s office on the 12th day of March, 1915, granting relator’s motion for a peremptory writ of mandamus.

Appeal by the New York Central Eailroad Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of April, 1915, granting an application for a peremptory writ of mandamus.

Appeal by Katherine Major, individually and as administratrix with the will annexed of Annie V. McMahon, deceased, and others, from parts of a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 6th day of March, 1915, directing the distribution of the estate of Bryan McCahill, deceased.

Appeal by the defendant, Federal Union Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of October, 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 2d day of November, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Anna B. Johnston and another, as administrators, etc., of William F. Johnston, 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 17th day of February, 1915, continuing an action against non-resident administrators and directing the service of a supplemental summons and complaint upon them by publication or personally without the State.

Appeal by the plaintiff, Lillian E. Hoffstaetter, 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 April, 1915, denying her motion to vacate and set aside a notice of lien.

Appeal by the defendant, John F. Alexander, 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 March, 1915, overruling a demurrer to the amended complaint.

Appeal by the defendant, George W. Linch, as receiver, 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 December, 1914, upon the verdict of a jury for §3,500, and also from an order entered in said clerk’s office on the 31st day of December, 1914, denying the defendant’s motion for a new trial made upon the minutes.

<p>Accounting — determination of issues raised by pleadings before accounting.</p> <p>Where, in a suit against real estate agents and auctioneers for an accounting as to moneys received from purchasers upon the sale of lots, consisting of a percentage of the purchase price and “knockdown fees,” and also as to moneys alleged to have been expended in advertising without authority, the defendants claimed that under their agreement with the plaintiff the “knockdown fees” belonged absolutely to them, and that all expenditures for advertising were authorized, approved and ratified by the plaintiff, these questions affect the scope of the accounting and should be determined by the court before granting an interlocutory judgment for an accounting and directing a reference.</p>

<p>Municipal corporation — city of Mew York — eminent domain — acceptance of award —waiver of right of appeal.</p> <p>Where a claimant in condemnation proceedings, after filing a notice of appeal from an order confirming a report of commissioners of estimate ■ and appraisal of the city of New York, serves a notice upon the comptroller, demanding immediate payment of an award which had been made to him, and states therein that he does not thereby waive or abandon the appeal, and the city pays the amount of the award, the receipt stating that the sum is in full payment, and that the payee will lose his right of appeal, the acceptance waives the right of appeal, notwithstanding the claimant’s attempt to reserve it.</p>

<p>Appeal by the defendant, Gem Stopper Company, from an order of the Supreme Court, made at the New York Special</p>

Cross-appeals by the petitioner, Gerald S. Griffin, and the defendants, William Williams and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1915.

<p>Appeal by the defendants, Alfred P. W. Seaman and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of March, 1915, granting relator’s motion for a peremptory writ of mandamus.</p>

Appeal in both cases by the defendant, George W. Linch, as receiver, from two judgments of the Supreme Court in favor of the plaintiff in each case, entered in the office of the clerk of the county of New York on the 14th day of March, 1914, upon the verdict of a jury for $1,500 in the first case and $500 in the second case: Also an appeal by the defendant from two orders entered in said clerk’s office on the 25th day of March, 1914, denying the defendant’s motion for a new…

Cross-appeals by the plaintiff, First National Bank of Brownsville, Texas, and the defendant, Lida M. Fleitmann, as administratrix, etc., from an order of-the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of January, 1915, overruling in part and sustaining in part demurrers to certain defenses set up in the amended answer.

Appeal by the plaintiff, William H. Davis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of July, 1913, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendants, Manhattan Railway Company 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 16th day of April, 1915, granting an injunction pendente lite.

Appeal by the defendant, West Side Laundry 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 12th day of April, 1915, directing that a writ of assistance issue to the sheriff to eject and remove the appellant from certain premises.

Appeal by the defendant, National Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of December, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Rebecca Schoenfeld, from a judgment of the County.

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

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

<p>Execution — income from trust fund — notice to trustee essential — garnishee order should cover only debtor’s interest.</p> <p>A motion for a garnishee order directing execution to be issued against the income of a trust fund of which a judgment debtor is beneficiary, must be made on notice to the trustee, but notice to the debtor is not essential.</p> <p>Where a trust fund has been created, income payable to the settlor’s divorced wife for the support of herself and their three children, a garnishee order issued on the debt of the wife should be directed only against one-quarter of the income from the fund and should not cover the whole thereof.</p>

<p>Appeal by the defendants, The City of New York and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of March, 1915, granting the plaintiff’s motion for an injunction pendente lite.</p>

Application by Francis Martin, district attorney of the county of Bronx, to make absolute an alternative writ of prohibition heretofore issued out of this court and attested on the the 12th day of May, 1915.

Appeal by the defendant, Joseph H. S. Muller, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of June, 1913, denying a motion to vacate a warrant of attachment.

Appeal by the defendants, Anne H. Byrd and another, as executors, from a determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January, 1915, affirming a judgment of the City Court of the City of New York.

<p>Real property — lateral support — municipal corporation — section 22 of Building Code of city of New York construed—liability for cost of supporting adjacent walls.</p> <p>By virtue of section 22 of the Building Code of the city of New York, an owner of a building who files plans for the erection of a new building on her lot, showing an intention to excavate to a depth of over ten feet below the curb line, and who after excavating to such an extent as to make the wall of the adjoining building unsafe, fails to comply with an order of the building department to support the adjoining wall, is liable for the amount expended by the adjoining owner in complying with the order of the building department.</p> <p>Section 22 of the Building Code is remedial in character, and should be liberally construed. Its purpose is to impose an obligation upon any person removing or intending to remove the lateral support of a wall to a depth of over'ten feet, and such obligation comes into existence when the removal of the lateral support renders the walls of the adjacent building unsafe. It makes no difference whether the lateral support so removed consists in the removal of an old wall, or of original rock and earth beneath it.</p> <p>Said section imposes an obligation of sustaining existing walls not only when an excavation is actually carried to a depth of more than ten feet below the curb, but also where it is intended to be carried to such a depth. Hence, the fact that materials were furnished and work performed in making the adjoining wall safe before the excavation had reached a depth of more than ten feet, did not constitute a defense to the action to recover the amount expended.</p>

<p>Crime — arson — charge — testimony of accomplice — statements made by witness out of court.</p> <p>Where a person not charged with being the incendiary is on trial for the crime of arson, and there is no direct proof establishing his guilt, except the testimony of an alleged accomplice, it is error for the court to charge that if the jury disbelieve the testimony of the alleged accomplice connecting the defendant with the crime, they may still find him guilty on other evidence.</p> <p>Moreover, in such action the court should charge that statements made out of court by the actual incendiary, who when called as a witness gave no testimony inculpating the defendant, cannot be considered as evidence against the defendant although they implicated him in the crime.</p>

Appeal by the plaintiff, Charles T. Russell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of February, 1913, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff and judgment creditor, The People of the State of New York, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 19th day of January, 1915, reducing the forfeiture and judgment herein, and also from an order of said court entered in said clerk’s office on the 2d day of February, 1915, denying a motion to resettle the prior order.

<p>Principal and agent — purchase and sale of stock — demand for margins —notice to purchaser before selling for want of sufficient margins — evidence—erroneous instructions to jury — agreement not to sell — consideration.</p> <p>Where, in an action by a customer against a firm of stockbrokers for conversion in selling out stocks and bonds carried on margin, without due demand and notice, it appeared that the plaintiff, a woman of means, had been carrying an account with defendants for some time through her son, who was employed by them; that in July, 1907, she went to Europe, leaving the key of her safe deposit box with a banker, to which her son had no access; that in August the banker went to Europe, leaving with the son some securities to be used as margins on the mother’s account, if needed; that in October a serious panic occurred, in which the price of stocks fell suddenly and violently, and the defendants called upon the son for additional margins for his mother’s account, and he complied as far as he was able, delivering the securities left with him for that purpose; that thereafter, at the defendants’ request, he cabled to his mother’s European address, but was unable to reach her; that the defendants, after repeatedly and constantly calling upon the son for further margins, and notifying him that unless such margins were forthcoming they would be obliged to sell some of the securities, did sell a large block of stock, and the only question litigated was as to whether or not the defendants had given the son reasonable notice of their intention to sell the securities, it was error to charge that in addition to the condition of the market and the relationship of the parties the jury should consider the length of time that the account was carried by the defendants for the plaintiff, also the financial condition of the plaintiff, if they believed that the defendants had knowledge thereof.</p> <p>It was alsoerror to admit evidence that 1,000 shares of stock were sold through another broker to the brother of one of the defendants. This, because there was no charge of fraud in the complaint and if the notice was insufficient it was of no consequence to whom the sales were made. It seems, that an alleged agreement by the defendants to sell no more securities without the plaintiff’s consent, if made, was without consideration and revocable, and, hence, it was error for the court to charge in effect that the agreement could not be revoked and that a sale made in violation thereof was void.</p> <p>Because of the above errors a judgment in favor of the plaintiff should be reversed and a new trial granted.</p>

<p>Appeal by the plaintiff, Grace W. Savage, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of November, 1914, granting defendant’s motion for a permanent injunction restraining plaintiff from issuing an execution against his person.</p>

<p>Will — construction — contingent remainder — absolute direction to convert realty into personalty — “ heirs.”</p> <p>A testator provided for the disposition of his property as follows: “After my lawful debts are paid, I give to my wife, Mary, all my real and personal property, and she is to have control during her lifetime, and at her death within sixty days thereafter, my entire estate is to be sold, at public auction and all the proceeds, and all other money belonging to my estate shall be equally divided among my children, viz: Lizzie, Katie, Henry, Joseph and Edward, and if any of my children are not living at that time, her or his share is to go to her or his heir or hens. Each one of my children or then heirs, shall receive their share within ninety days after the death of my wife, with the exception of my son, Henry, whose share shall be held in trust, for him by my daughters, Lizzie and Katie, and they shall from time to time pay to him from his share such money as in their judgment is necessary for his maintenance, and at his death the amount then held in trust for him shall go to his legal heirs.” In an action for the construction of this provision, it appeared that the testator died, survived by his wife, who is still living, and ñve children; that Henry died unmarried and intestate, and Lizzie died without issue, leaving her surviving her husband, to whom she gave all of her property by will.</p> <p>Held, that it was the intention of the testator that the distribution of his property should be made as of the date of his wife’s death, and to the persons who at that date answered the description of those who were to take; that, therefore, his daughter Lizzie took no devisable estate, and her husband can take nothing under her will;</p> <p>That on the death of the widow the share which would have been payable to Lizzie will go to those who stand in the position of her “heirs,” which, since the direction to convert into personalty is absolute, will mean her next of kin. Her husband is neither an heir nor next of kin.</p>

Appeal by the plaintiff, Westchester Mortgage 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 2d day of January, 1915, upon a dismissal of the complaint by direction of the court at the opening.

<p>Appeal by the defendants, Harry Light and another, 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 6th and 21st days of January, 1915, respectively.</p>

Appeal by the plaintiff, Assets Collecting Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day of March, 1915, changing the venue from Westchester county to New York county.

Appeal by the defendant, The Gity 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 20th day of January, 1915, granting plaintiff’s motion for the retaxation of costs.

<p>Partition—condemnation of lands pending action — award not included in judgment of sale —practice.</p> <p>Where pending an action for the partition of real property a portion of the lands is taken by eminent domain by the city of New York, the award becomes personal property and the judgment in partition should not contain a provision directing the referee to include the award in the sale which should cover real property only.</p>

Appeal by the defendant, Eagle Savings and Loan Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of November, 1914, denying its motion to open a default herein.

Appeal by the defendant, Charles R. Uebelmesser, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against him on the 1st day of May, 1914, convicting him of the crime of grand larceny in the second degree.

<p>Appeal by the defendant, Mary Elizabeth Mooney, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 20th day • of October, 1914, upon the decision of the court after a trial before the court without a jury.</p>

Appeal by the plaintiff, Union Bank of Brooklyn, from a judgment of the Supreme Court partly in favor of the defendant’s intestate, entered in the office of the clerk of the county of Kings on the 10th day of June, 1913, upon a dismissal of certain causes of action alleged in the complaint by direction of the court at the close of the case. As to certain other causes of action the court directed a verdict in plaintiff’s favor.

Appeal by the plaintiff, Robert Gr. Mackay, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 29th day.of May, 1914, upon the verdict of a jury, and also-from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new ■ trial made upon the minutes.

Appeal by the defendants, Max Canno and another, from a judgment of the County Court of Sullivan county in favor of the plaintiff, entered in the office of the clerk of said county on the 18th day of February, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of February, 1914, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Jacob Markus, from a judgment of the County Court of Genesee county, rendered against him on the 3d day of July, 1914, convicting him of the crime of receiving stolen property, and also from an order entered in the office of the clerk of said county on the 6th day of July, 1914, denying his motion for a new trial.

<p>Appeal by the defendant, New York State Railways, from an order of the County Court of Monroe county, entered in the office of the clerk of said county on the 29th day of June, 1914, denying defendant’s motion to set aside the verdict of a jury in plaintiff’s favor for $275, and also from an order entered in said clerk’s office on the 1st day of July, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Charlotte L. McOlave, 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 26 th day of May, 1914, upon the decision of the court after a trial at the New York Special Term. The judgment requires appellant to account, and names a referee to take and state her account.

Appeal by the defendant, Max Eichner, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered against him on the 19th day of November, 1914, convicting him of the crime of assault in the second degree.

Appeal by the plaintiff, Frank Zak, 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 October, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendants, John D. Mills 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 6th day of May, 1915, granting an injunction pendente lite.

<p>Appeal by the defendant, Arthur William Barber, 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 7th day of August, 1914, upon the decision of the court after a trial at the Westchester Special Term.</p>

Appeal by Patrick J. Kane 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 18th day of December, 1914, as amended and resettled by an order entered in said clerk’s office on the 20th day of January, 1915.

Appeal by the plaintiffs, Austin B. Fletcher and another, as executors, etc., from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of February, 1915, overruling a demurrer to the counterclaim set up in the answer.

Appeal by the defendant, Morris Iser, from a judgment of the Court of Special Sessions of the City of Hew York, borough of Manhattan, Part VI, entered in the office of the clerk of said court on the 26th day of October, 1914, convicting the defendant of a violation of chapter 803 of the Laws of 1896.*

Appeal by the plaintiff, Southern Leasing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office- of the clerk of the county of New York on the 8th day of April, 1915, denying its motion for an injunction pendente lite.

Appeal by the plaintiff, Publicity Leasing 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 8 th day of February, 1915, denying its motion for an injunction pendente lite.

Appeal by the relator, Morris Lederman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1914, dismissing the writ of habeas corpus herein and remanding the relator to custody.

Appeal by the defendants, John M. Servin and another, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 23d day of December, 1914, upon the decision of the court after a trial at the Westchester Special Term. The judgment is appealed from in so far as it grants extra allowances to the attorneys for certain of the parties herein.

Appeal by the plaintiff, The People of the State of New York, from an order and judgment of the County Court of Richmond county, entered in the office of the clerk of said county on the 10th day of September, 1914, sustaining a demurrer to an indictment found against the defendant.

<p>Appeal by Merchants National Bank of the City of New York and others from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of February, 1915, denying a motion by the holders of receivers’ certificates for special relief as to funds retained by the city of New York and as to the proceeds of sales of the plant.</p>

Appeal by John Quinn, one of the next of kin of Bridget Quinn, deceased, from a decree of the Surrogate’s Court of Kings county, entered in the office of said Surrogate’s Court on the 30th day of November, 1914, settling the accounts of the administratrix herein.

Appeal by the defendants, Jackman Herrick and others, 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 2'Tth day of March, 1915, denying their motion to dismiss the complaint herein.

Appeal by the defendant, Benjamin Michaels, from a judgment of the Court of Special Sessions of the City of New York, borough of Brooklyn, Part 2, entered in the office of the clerk of said court on the 23d day of November, 1914, convicting him of the crime of possessing cocaine.

<p>Appeal by the defendants, Samuel K. Jacobs 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 23d day of February, 1915, denying their motion to change the place of trial.</p>

Appeal by the plaintiff, Croton Falls Construction Company, from parts of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of May, 1913, upon a dismissal of certain parts of the complaint by direction of the court at the close of the case upon the trial before the court and a jury at the New York Trial Term, with notice of an intention to bring up for review an order entered in said…

Appeal by the plaintiff, Josephine 0. Perry, as executrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 12th day of March, 1914, rendered at Special Term, reversing a judgment of the City Court of Buffalo in favor of the plaintiff. Judgment affirmed, with costs, upon the opinion of Bissell, J., delivered at Special Term.

Appeal by the defendant, Thomas Carmody, as Attorney-General, from an order of the Supreme Court, made at the Ontario Special Term and entered in the office of the clerk of the county of Ontario on… Held: that the motion was properly denied upon the merits for the reasons stated in the opinion of Mr. Justice Clark; also for the reason that such a motion cannot be made in this action after judgment.

<p>Appeal by the defendant, Pittsburg 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 Westchester on the 22d day of October, 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.</p>

Appeal by the plaintiff, Allied Silk Manufacturers, Inc., 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 20th day of November, 1914, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Frank W. Baum, individually and as committee, 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 March, 1915, denying his motion for leave to serve a supplemental summons and complaint.

<p>Appeal by the plaintiff, Carlton Illustrators, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 12th day of June, 1914, upon the dismissal of the complaint by direction of the court at the close of plaintiffs case-</p>

Separate appeals by the defendants, William S. Webb 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 31st day of December, 1914, upon the report of a referee appointed to hear and determine the issues,

<p>Municipal corporation — validity of contract between terminal commission of city of Buffalo and railroads for construction of terminal and elimination of grade crossings — Terminal Commission Act (Laws of 1911, chap. 842) construed — powers of commission — taxpayer’s action—review of action of commission—constitutional law—gift by city to railroad — ownership of “Front” street — prescriptive easements in.</p> <p>The Terminal Station Commission of the City of Buffalo, acting under chapter 842 of the Laws of 1911, entered into a contract with the Delaware, Lackawanna and Western Railroad Company and the New York, Lackawanna and Western Railroad Company, the purpose of which was to effectuate and carry out plans for a railroad terminal in said city theretofore adopted by the commission so as to eliminate grade crossings and afford better terminal facilities.</p> <p>Suit by a taxpayer to declare the contract illegal, null and void, as in violation of the State and Federal Constitutions, of chapter 842 of the Laws of 1911, and as contrary to public policy. Provisions of the contract and of the act of 1911 examined, and held, that a judgment dismissing the complaint should be affirmed.</p> <p>While the court should not consider the wisdom of the plan adopted for the new terminals proposed, the plaintiff being a taxpayer, has a right to question the legality and validity of the contract made with the railroads for carrying out the plan, and to question the powers vested in the terminal commission to execute the contract.</p> <p>It seems, that the plaintiff could, within the statutory time, have reviewed the action of the commission by writ of certiorari.</p> <p>The commission had authority under the act of 1911 to make certain modifications to the proposed plans as the result of a public hearing without giving further notice.</p> <p>The commission also had authority to provide for the laying of extra or new tracks or the continuance of a single track at grade, especially where such provision had been approved by the Public Service Commission.</p> <p>Only the public at large is interested where streets in which the city has no fee are to be closed, and the Legislature has full power and authority to release the public right therein and to provide for the closing of the same, whenever public interest requires. On the closing of such street, the city, having no fee, is not entitled to compensation.</p> <p>The act of the terminal commission in closing such streets and surrendering rights therein without compensation to the railroads was not in violation of section 10 of article 8of the Constitution, providing that “no county, city, town or village shall hereafter give any money or property * * * to or in aid of any individual, association or corporation.” Where the fee of a street or highway is in a city, the city holds the street in trust for the people at large.</p> <p>Ownership of “Front” street in the city of Buffalo, and the right of the terminal commission to close the same considered. If the city has any rights in this street, they were acquired by prescription, and, therefore, the public can only claim such rights as it had acquired by actual user It was intended by the act of 1911 to authorize the terminal commission to adopt such plans as might be necessary in order to properly provide not only for the railroad terminals themselves, but for proper connection with other transportation corporations, and it was their duty to consider the conveniences of lake traffic and docking facilities.</p> <p>The fact that the value placed by the commission upon the parcels of land to be conveyed to the railroads exceeded the value placed upon the lands to be conveyed by the railroads to the city by the sum of $98,000, which amount was to be the city’s contribution toward the expense of eliminating grade crossings and relocating streets, did not render the contract void, as in violation of section 10 of article 8 of the Constitution.</p> <p>The fact that the money was not paid into the city treasury by the railroads and afterwards disbursed does not affect the validity of the contract.</p>

Separate appeals by the defendants, Martin Mager and Annie 0. Carpenter, from parts of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 1st day of July, 1914.

<p>Negligence — receiver of rents and profits of realty not liable for personal injuries caused by defects therein—motion for leave to sue receiver.</p> <p>A. receiver of the rents and profits of real property appointed in a suit to foreclose a mortgage thereon is not liable for personal injuries received by reason of an alleged defect in a stairway in the building, nor are the funds in his hands liable therefor; and, hence, a person so injured should not be granted leave to sue said receiver where it is not charged that he made any particular repairs to the stairway which he could not have done without leave of court or did anything during his receivership to render it unsafe. •</p> <p>While ordinarily the question of liability for personal injuries should be left to be determined on the trial of an action, the liability of a receiver for such injuries may be determined on a motion for leave to sue him, as otherwise the distribution of the fund in his hands might be indefinitely postponed.</p>

<p>Banks — decedent’s estate—transfer of savings bank deposit to executor on demand — personal loan to executor on security of pass book — when no implied trust in favor of legatees — failure to show negligence or bad faith —lien of lender is prior to right of legatee.</p> <p>Where an executor presents the surrogate’s certificate appointing him as such and also a waiver from the attorney for the State Comptroller to a savings bank in which his testator had a deposit and has the account represented by a new pass book transferred to his own name, the legatees after the insolvency of the executor cannot recover in an action against another bank which made a personal loan to the executor secured by an assignment of the funds represented by the pass book bearing his name, on the theory that the funds were impressed with a trust in favor of the unpaid legatees, there being no proof showing bad faith on the part of the bank which made the loan.</p> <p>Where the lending bank, being made codefendant with the bank issuing the pass book, interposed no answer asking relief against its codefendant, and the latter merely prayed that the rights of the parties to the fund in question be determined, the decision should be limited to the determination of that question, and no relief can be given in favor of the lender against the bank issuing the pass book.</p> <p>As an executor as such takes unqualified legal title to all the personal property of his testator not specifically bequeathed, and a qualified title .to that which is so bequeathed, the bank of deposit was justified in issuing to the executor a pass book in his own name instead of paying over to him the actual cash, and hence the legatees as against it are only entitled to a judgment impressing a trust in their favor upon the balance of such account remaining after the lien of the bank which made the loan has been paid, there being no proof óf bad faith on the part of either institution.</p>

Appeal by the defendants, German Exchange Bank and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 4th day of June, 1913, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the defendant, A. H. Woods Productions 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 30th day of December, 1914, upon the verdict of a jury, and also from an order entered in said- clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiffs, Continental Securities Company 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 Westchester on the 11th day of February, 1915, upon the decision of the court after a trial at the Westchester Special Term.</p>

<p>Workmen’s Compensation Law—Federal Employers’ Liability Act — employee injured while engaged in interstate commerce, without negligence of employer, entitled to compensation — employee not prejudiced because employer insures otherwise than in State fund — election of remedies.</p> <p>The Workmen’s Compensation Law should be given a broad and liberal construction in order to carry out the beneficent purpose for which it was enacted, and should be applied to all cases arising in the hazardous employments mentioned, where a Federal statute does not necessarily conflict with it.</p> <p>Since the Federal Employers’ Liability Act relates solely to liability on account of negligence, an employee of a railroad company injured without negligence of the company, while working upon its tracks, which were used both for State and interstate commerce, is entitled to compensation under the Workmen’s Compensation Law.</p> <p>The rights of an employee under the Workmen’s Compensation Law do not depend at all upon the manner in which his employer has elected to carry his insurance. An employee is not prejudiced by the fact that his employer qualifies as a self-insurer or insures otherwise than in the State fund.</p> <p>It seems, that if an employee receives compensation either under the Federal act or under the State Workmen’s Compensation Law, it may be held that he has received pay for the injury which he has sustained, upon a remedy chosen by him, and that his election of one of such remedies prevents him from resorting to the other.</p> <p>Smith, P. J., and Howard, J., dissented, with opinion.</p>

Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, 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 Franklin on the 8th day of September, 1914, setting aside a report of appraisal and the stipulation for appraisal herein.

<p>Appeal by Jarvis Lighterage Company and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 23d day of October, 1914.</p>

Appeal by the intervener, Frederick 0. Hicks, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 27th day of January, 1915, granting relator’s motion for a peremptory writ of mandamus. At the general election held in November, 1914, the relator and the intervenor were rival candidates for representative in the Congress.

<p>Public health—practice of pharmacy—statute constitutional — sale of medicines by storekeeper.</p> <p>The statute requiring the annual registration of persons engaged in the practice of pharmacy and imposing a penalty for practicing said pro"fession without a license, does not impair the right of a pharmacist to pursue his occupation and is valid, being a lawful exercise of the police power.</p> <p>Section 234 of the Public Health Law, allowing storekeepers who are not pharmacists, in places of 1,000 inhabitants or less that do not have within three miles a pharmacy or drug store, to sell medicines and poisons for a period of one year upon the payment of a certain fee is constitutional, being designed to further the needs of persons dwelling in sparsely settled districts where licensed pharmacists may not be available.</p> <p>Said statute does not authorize a storekeeper to practice pharmacy, for he is not authorized to compound medicines, but only to sell those put up in original packages by licensed pharmacists.</p>

Appeal by the plaintiff, Charles W. Martyne, 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 8th day of January, 1915, vacating the service of the summons, warrant of attachment and levy thereunder in this action. The American Union Fire Insurance Company was incorporated in Pennsylvania, and began business in Philadelphia on January 3, 1911. It was soon admitted to New York.

Appeal by the Springfield, L. I., Cemetery Society and by certain of its directors from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of December, 1914, in a proceeding under section 16 of the Membership Corporations Law (Consol. Laws, chap. 35; Laws of 1909, chap. 40), for a visitation of the cemetery society.

Appeal by the defendant, Charles Blankenhom, 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 16th day of April, 1914, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 23d day of April, 1914, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, New York Telephone Company, 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 28th day of December, 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.</p>

Appeal in each proceeding by the employer, Sweeney & Gray Company, Smith, Angevine & Co., Inc., and Burger & Gohlke, and by the insurance carrier in each case, from awards of the Workmen’s Compensation Commission, entered in the office of said Commission, the award in the first proceeding on the 28th day of October, 1914, and the awards in the other two on the 27th day of October, 1914.

Appeal by the relator, Leon Lawton, from an order of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 11th day of December, 1914, dismissing the writ of habeas corpus herein and remanding the relator to custody.

Appeal by the defendants, John T. Fetherston, as commissioner, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of February, 1915.

Appeal by the defendants, Daniel J. Hegeman, as county treasurer, and another, from an order of the County Court of Nassau county, entered in the office of the clerk of said county on the 31st day of December,' 1914. The proceeding was commenced under subdivision 1 of section 27 of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39).

Appeal by Charles H. Price and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 21st day of October, 1914, granting compensation for the death of Erwin D, Smith,

Appeal by Mary Rheinwald, claimant, from a decision of the Workmen’s Compensation Commission, rendered on the 31st day of August, 1914, denying her claim for compensation to herself and her two minor children.

<p>Appeal by the defendant, New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of June, 1914, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 29th day of December, 1914, denying its motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Tony Martinitis, from a judgment of the Court of Special Sessions in the town of Oyster Bay, Nassau county, N. Y., rendered against him on the 8th day of January, 1915, convicting him of the crime of violating section 43 of the Penal Law, and also an appeal from the judgment and order of the County Court of Nassau county entered in the office of the clerk of said county on the 27th day of February, 1915, affirming said conviction.</p>

Appeal by the plaintiff, Charles W. Townsend, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 6th day of November, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendants, Frederick A. Stokes Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of May, 1914, upon the decision of the court after a trial at the Kings County Special Term. The judgment decreed, among other things, an accounting between the parties.

Cross-appeals by the plaintiff, Charles Cranford, and the defendant, Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of December, 1912, upon the decision of the court after a trial at the Kings County Trial Term before the court without a jury.

Appeal by the George M. Cragin Company, property owner, 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 31st day of March, 1914, confirming the report of commissioners of estimate and assessment, as overrules objections to the awards and assessments affecting damage parcel No. 1 and benefit parcel No. 31.

Appeal by the defendant, William H. Foster, 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 25th day of January, 1915, 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. The judgment was for the amount of a promissory note and interest.

<p>Vendor and purchaser—possession of lands under contract to purchase— rescission of contract — recovery of earnest money—when no recovery for use and occupation. ............ .</p> <p>A vendee in possession of premises under a contract of sale, who rescinds the contract and recovers by suit a payment thereon is not liable to the owner for the value of-the use and occupation. — ■......</p> <p>In order to sustain an action for use and occupation, the conventional relation of landlord and tenant must exist. The law will not imply such a relation from a rescission of the contract, or by entry pursuant to an agreement to purchase. There must be an agreement express or implied to pay rent.</p>

<p>Negligence — runaway horses on city street—res ipsa loquitur — attempt to stop runaway.</p> <p>Proof that horses were running away unattended in a busy city street is prima facie evidence of negligence on the part of the owner.</p> <p>It is for the jury to say whether there was such imminent danger to life as justified the plaintiff’s intestate, a bystander, in attempting to stop the horses under the circumstances.</p>

Certiorari issued out of the Supreme Court and attested on the 10th day of October, 1912, directed to Frederick H. Waldorf, mayor of the city of New Bochelle, and others, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in confirming the report of assessors appointed to apportion the expense of the improvement of certain streets in the city of New Bochelle.

<p>Crime—petit larceny — retention by agent of moneys collected — claim of title as defense — partnership — agreement to share profits and losses.</p> <p>Upon the prosecution of a defendant for the crime of petit larceny in that he retained, with criminal intent, moneys received as agent for property sold by him, it appeared that the defendant had been employed as a grocery salesman; that he was to receive one-half the profits on his sales and to bear one-half the losses arising therefrom, and that when he secured an order his principal shipped the goods in its name, the defendant making the collections and submitting statements thereof twice a month. •</p> <p>Held, on all the evidence, that the conviction should he affirmed.</p> <p>Although the funds collected by the defendant came lawfully into his possession, their retention was not open, and he did not seasonably notify his principal thereof and assert a claim of right to them. Hence, his claim of title is not a defense under section 1306 of the Penal Law.</p> <p>The fact that the defendant was to share the profits and losses with his principal did not by mere operation of law make him a partner.</p>

<p>Corporations—representative action by stockholders — attacking validity of transactions occurring prior to organization of corporation —transfer to bankers of stock in proposed corporation as compensation for services — fiduciary relation to future corporation.</p> <p>A subscriber’s agreement entered into by the shareholders of a.construction company which had undertaken the construction of the New York subway, provided for the organization of a new corporation for the equipment and operation of the subway with an exchange of stock in the existing company for the capital stock of the proposed operating company, a portion of which was to be applied to acquire the existing company, together with the interests of the contractor. The president of the construction company and his firm were designated as “the bankers,” who should attend to the deposit and exchange of stock. In order to facilitate the organization of the operating company, the bankers acquired a controlling interest in two railroad companies operating wholly within the city of New York, and transferred the stock and securities thus acquired for this new company and took a participation receipt for 15,000 shares in the proposed operating company, as consideration for their services. Thereafter, the Legislature passed an act permitting the incorporation of the Interborough Rapid Transit Company (the proposed operating company), thereby rendering the acquisition of the stock of the railroads unnecessary. After such company had been organized, the bankers offered to exchange the holdings in the railroad companies for stock in the Interborough Company, such stock to cover all compensation for their services. This offer was accepted at a meeting of the board of directors in which the bankers did not participate.</p> <p>A representative action was subsequently brought by stockholders who did not become such until four or five years after the organization of the Interborough Company, attacking the validity of the transfer of capital stock to the bankers. Evidence examined, and held, not to establish fraud or bad faith or the exaction of an extortionate bonus by the bankers, and that the complaint should be dismissed;</p> <p>That, although one of the bankers was the president of the construction company, they did not hold such fiduciary relations to the future cor-</p> <p>poration that they could not make any profits on the resale of the railroad stock to it, nor by means of such resale be recompensed for their services. The issue of the participating certificate for 15,000 shares was not a misapplication of the assets of the future corporation.</p> <p>The subscribers associated in the control of the construction company and those interested in the original contract could contract with one another as buyers, sellers and organizers, since, in this initial stage of the transactions, no others were legally interested.</p>

Appeal by the defendant, Benjamin Menschel, 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 22d day of April, 1915, as resettled by an order entered in said clerk’s office on the 3d day of May, 1915. The order referred the issues to a referee.

<p>Practice — effect of denial of motion without leave to renew — reference — when reference of issues arising upon foreclosure of mechanics’ liens granted.</p> <p>Two motions for the same object cannot be made upon the same state of facts where the first has been denied without leave to renew.</p> <p>Hence, when the court at Special Term refuses to grant a reference without leave to renew, it is improper to move again at Special Term in another county to refer the issues.</p> <p>A statement by the court that it declined to refer “and will leave the parties where they were and they can thus try their case whenever the condition of the equity calendar in Richmond county permits ” does not show a reservation of a right to renew the motion.</p> <p>A complaint by a building contractor in a suit against the owner for the foreclosure of a mechanic’s lien, alleging that it had two claims for a balance due under the contract, and making a further demand for extras, does not state a long account within the meaning of section 1013 of the Code of Civil Procedure, and a reference should not be ordered.</p> <p>The complaint alone and not matters raised in the answer determines if the cause is referable.</p> <p>Issues arising in suits to foreclose mechanics’ liens on buildings should not be referred except by consent unless they clearly involve a long account.</p>

Appeal by the defendant, William Scharf, from a judgment of the County Court of Kings county, rendered against him on the 11th day of November, 1914, convicting him of the crime of grand larceny in the first degree.

Original motion to the Appellate Division of the First Department for a peremptory writ of mandamus, directed to Thomas F. Donnelly, as justice of the Supreme Court, to require him to enter a judgment by default in favor of the relators in an action brought to foreclose a mortgage.

Appeal by the plaintiff, The City of New York, from 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 26th day of May, 1914, upon a decision of the court after a trial at the New York Special Term.

Separate appeals by the plaintiff, John H. Hughes, and the defendant, John H. Stoutenburgh, as trustee, from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 26th day of June, 1914, upon the decision of the court after a trial at the New York Special Term.

<p>Bankruptcy — suit to recover deposit owned by bankrupt — right of defendant to offset amount of unmatured notes — effect of appointment of receiver in prior creditor’s suit.</p> <p>Where the trustees, appointed on the bankruptcy of a foreign corporation, sue to recover a bank deposit which belonged to the bankrupt and which represents the proceeds of notes discounted for the bankrupt by the defendant bank, the defendant may offset the amount of the bankrupt’s notes still held by it against its indebtedness.' upon the deposit. This, because, under the FederaLBankimptey Aety unmatured. as well as matured, claims are provable against a bankrupt’s estate..</p> <p>The bank is entitled to the offset aforesaid, although in a prior action brought against the bankrupt by a creditor for the benefit of himself and creditors similarly situated, a receiver was appointed by a foreign court, and an ancillary receiver appointed in this State, and the corporation went into bankruptcy less than four months thereafter, where the notes now sought to be offset had not matured when the receiver in the creditor’s action was appointed. By the institution of said creditor’s action no specific lien on the bankrupt’s property was acquired under subdivisions c and f of section 67 of the Bankruptcy Act, which passed to the trustees in bankruptcy so as to make the trustees in bankruptcy immune against the offset of the unmatured claims.</p> <p>The receiver in the creditor’s action took no title to the assets of the corporation, its sole function being to collect them and hold them subject to the disposition of the court by which he was appointed, and hence he had no title which he could convey to the trustees in bankruptcy by a conveyance to them under order of the Bankruptcy Court.</p> <p>The provisions of the Bankruptcy Act aforesaid, relating to the transferring of alien to trustees in bankruptcy for the benefit of the estate, are intended to meet cases where such transfer would perfect the trustee’s title and have no relation to a ease where the trustee already has acquired title.</p> <p>The institution of a general creditor’s suit and the appointment of a receiver therein does not create a specific lien on the debtor’s estate within the meaning of the aforesaid sections of the Bankruptcy Act.</p>

<p>Appeal by the defendant, Margaret McCarthy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence 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 or about the same date denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the petitioners, Albert Halsey and others, from two judgments of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 1st and 2d days of September, 1914, respectively, upon the report of a referee appointed to hear and determine the issues, and also from two orders entered in said clerk’s office on the 1st and 2d days of September, 1914, respectively, confirming said referee’s report, and directing judgment in favor of the respondents.</p> <p>Judgments and orders affirmed, with costs, on the opinion of Percival H. Gregory, referee.</p>

Appeal by the defendant, The Emigrant Industrial Savings Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 29th day of October, 1914, apon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Baltimore and Ohio Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of December, 1914, overruling its demurrer to the amended complaint.

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 26th day of May, 1914, upon a decision of the court after a trial at the New York Special Term.

Return of an alternative writ of prohibition heretofore issued out of this court and attested on the 28th day of April, 1915, restraining, pending the hearing, the submission of issues on a writ of habeas corpus to a jury.

Appeal by the petitioner, Rexford Flats Bridge Company, 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 Saratoga on the 15th day of October, 1914, denying an application for a peremptory writ of mandamus. Order affirmed, with costs, upon the opinion of Mr. Justice Borst at Special Term.

Appeal by the plaintiff, Morris Franklin, 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 Saratoga on the 15th day of July, 1914, denying plaintiff’s motion to punish the defendant for contempt of court. Order affirmed, without costs, on the opinion of Mr. Justice Heney T. Kellogg at Special Term.

<p>Appeal by the- plaintiff, Lembeck & Betz Eagle Brewing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 3d day of February, 1914, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>The judgment directed plaintiff specifically to perform certain agreements.</p> <p>Judgment affirmed, with costs, on the opinion of Mr. Justice Kapper at Special Term.</p>

Appeal by the plaintiff,' George C. Clausen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of January, 1914, upon the report of a referee appointed to hear and determine the issues, except such part of said judgment as dismisses the first counterclaim interposed in the answer; also an appeal from an order entered in said clerk’s office on the 12th day of January, 1914, granting…

Appeal by the defendant, Whitehead Brothers Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 13th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James Beiermeister, from a judgment of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 21st day of August, 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. After the service of the notice of appeal Victor Rimbaud, the plaintiff, died, and his executrix was substituted in his place.

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

Appeal by the defendant, the Binghamton Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 17th day of October, 1914, upon the verdict of a jury for $1,000 rendered after a trial at the Broome Trial Term, and also from an order entered in said clerk’s office on the 26th day of October, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Practice — change of venue — collision between automobiles.</p> <p>Motion for a change of venue in an action to recover damages caused by a head-on collision between automobiles owned respectively by the plaintiff and defendant. Each of the parties brought an action to recover for the same accident, each laying the venue in the county of his residence, and these actions had been consolidated.</p> <p>Meld, that the place of trial should be changed to the county where the accident occurred and where many of the witnesses resided, including persons who could testify to the amount of damages, owing to the fact that they had repaired the automobile.</p>

<p>Appeal by the claimant, Albert Fuchs, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 12th day of September, 1914, confirming the report of a referee and overruling and disallowing claimant’s exceptions thereto.</p>

Appeal by the defendant, Empire United Railways, Inc., from two awards of the Workmen’s Compensation Commission herein, one entered in the office of said Commission on the 12th day of January, 1915, and the other on the 28th day of January, 1915.

<p>Landlord and tenant — action for rent—defense—breach of covenant by landlord — remedy of tenant for breach of covenant not amounting to an eviction — appeal—failure of trial court to deduct nominal damages upon a counterclaim.</p> <p>A. breach of covenant on the part of a landlord, existing at the time a tenant takes possession of the premises, and fully known before the term of the lease commences, does not constitute a defense to an action for rent.</p> <p>Where tenants, upon discovering alleged defects, and ascertaining that the landlord will not remedy the same, fail to assert any right to remove from the premises, but on the contrary remain in possession not only during a period prior to the commencement of the term and for which no rent was reserved, but also as tenants for one entire month of the term, their remedy for any breach of covenant on the part of the landlord not amounting to an eviction, is to counterclaim their damages or bring an independent action therefor.</p> <p>Where tenants under such circumstances vacate the premises after one month, the landlord is entitled to recover rent from said date until the premises are relet.</p> <p>The appellate court on an appeal from a judgment in an action for rent is neither required to grant a new trial nor to modify a recovery for a failure to deduct nominal damages upon a counterclaim for breach of covenant.</p>

<p>Libel — libelous statements by attorney in petition for pardon — defense of privilege — application of rule of absolute privilege — when qualified privilege lost.</p> <p>In an action for libel it appeared that the defendant signed a petition for the pardon of a doctor serving a sentence for attempted abortion, and annexed thereto a separate communication signed by Mm and addressed to the Governor, in which it was stated that the petition for pardon “was prepared for me and received my heartiest concurrence.”</p> <p>The petition stated, among other things, that the plaintiff, who had acted as counsel before the county medical society, and had been instrumental in securing the doctor’s conviction, was impelled by dishonorable motives and did not act in good faith toward the society, wMch subsequently requested him to resign; that he had been arraigned on a charge of extortion, and had escaped conviction on a technicality, and that he had become thoroughly discredited in the community and at the bar, and was an unprincipled, blackmailing, depraved scoundrel. The only defense pleaded was privilege. A judgment dismissing the complaint, on the theory that the rule of absolute privilege applied to the communication, was reversed and a new trial granted. (165 App. Div. 595.) Upon the new trial the only additional evidence offered was a communication from the medical society, addressed to the Governor, subscribed by the plaintiff in the name of his firm “as counsel to the society,” and also a letter signed by plaintiff in his firm name, stating that the society desired to file the communication as a protest against the pardon. The alleged libelous letter of the defendant contained no reference to the communication of the medical society, presented to the Governor nearly five years before, nor did it expressly or impliedly put in issue any of the representations contained in the protest.</p> <p>Held, that there is nothing in the new evidence to render inapplicable the decision made on the former appeal.</p> <p>Since the facts upon which the medical society urged the refusal of the application for the pardon were not denied, and since the plaintiff merely subscribed the communication in the name of his firm as counsel, his private character did not become subject to attack.</p> <p>The reason for the rule as to absolute privilege is not applicable to an ex parte proceeding before the Governor on an application for a pardon, and the tendency is not to extend the rule.</p> <p>If the defendant was merely exercising his rights as a citizen, a qualified privilege only existed which was lost if he acted with express malice, which might be inferred from the nature and tone of his letter.</p>

Separate appeals by the plaintiff, Hattie G. Frankel, and the defendant, Charlotte Rosenbaum, 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 Hew York on the 18th day of August, 1914, upon the decision of the court after a trial at the Hew York Special Term.

Appeal by the defendant, Troegerlith Tile Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of February, 1915, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Francis P. McManus and others, 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 3d day of April, 1914, upon the decision of the court after a trial at the New York Special' Term.

Appeal by the defendant, Benjamin F. Frisbie, from a judgment of the County Court of Bronx county in favor of the plaintiff, entered in the office of the clerk of said county on the 24th day of February, 1915, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 6th day of March, 1915, denying the defendant’s motion for a new trial made upon the minutes.

Appeal Tby the defendant, Match Supply Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 15th day of March, 1915, denying the appellant’s motion to vacate an order directing its examination before trial through its officers.

<p>Appeal by John L. Lewis and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 19th day of February, 1915.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 26th day of September, 1914, directed to William D. Dunn and others, individually and as members of the board of audit, ■ commanding them to certify and return to the office of the clerk of the county of Schenectady all and singular their proceedings had in making an apportionment of certain moneys.</p>

<p>Appeal by the defendant, Edward 0. Smith, 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 16th day of April, 1915, overruling his demurrer to the complaint and granting the plaintiffs’ motion for judgment on the pleadings.</p>

Appeal by the defendants, Hugh N. Camp, Jr., 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 16th day of April, 1915, overruling their demurrer to the complaint and granting plaintiffs’ motion for judgment on the pleadings.

Appeal by the defendant, Beatrice Todd, 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 February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1915, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Delaware and Hudson 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 Rensselaer on the 30th day of January, 1915, overruling its demurrer to the complaint.

Appeal by the plaintiff, Claude C. Merrihew, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Clinton on the 22d day of January, 1914, upon the decision of the court dismissing the complaint after a trial at the Clinton Special Term.

Appeal by Elizabeth K. Baker, individually and as executrix, etc., from part of a decree of the Surrogate’s Court of Chenango county, entered in said Surrogate’s Court on the 23d day of December, 1914.

Appeal by the plaintiff, Village of Port Dickinson, from a judgment of the Supreme Court in favor of the defendant, entered in the' office of the clerk of the county of Broome on the 8th day of December, 1914, upon a decision of the court after a trial at the Broome Special Term.

<p>Master and servant — negligence—injury to employee in tunnel by falling rock — when doctrine of safe place to work not applicable.</p> <p>Where, in an action under the Employers’ Liability Act to recover for personal injuries, it appears that the plaintiff while working in a tunnel, assisting in throwing broken rock into a car, was injured by a fall of rock from the roof, although a few hours before the roof of the tunnel had been properly ‘ scaled ” by the defendant’s employees and the loose rock removed, it is reversible error to charge that the common-law rule as to safe place to work applies, and to leave the question to the jury as to whether or not the plaintiff was given a safe place.</p> <p>Testimony by the plaintiff that his foreman had ordered him to work at the place where he was injured, after having his attention called to the fall of a small stone, and having promised to fix it, presented a question for the jury, although not corroborated.</p> <p>The evidence was insufficient to establish negligence on the part of the defendant in sealing the walls of the tunnel and in inspecting them.</p> <p>Scott, J., dissented.</p>

<p>Appeal by the defendant, Harrison Granite 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 the 7th day of December, 1914, affirming a judgment of the City Court of the City of New York. Defendant also appeals from the order of the City Court of the City of New York making the order ' of the Appellate Term the order of said City Court, and from the judgment of affirmance entered in the office of the clerk of said City Court on the 12th day of December, 1914.</p> <p>The original judgment in the City Court was rendered upon the decision of the court, both sides having moved for the direction of a verdict.</p>

Appeal by Northern Union Gas 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 31st day of March, 1915, granting a peremptory writ of mandamus.

Appeal by William Ziegler, Jr., from part of a decree 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 May, 1914, settling the accounts of the executors of and trustees under the last will and testament of William Ziegler, deceased.

<p>Insurance—action under accident insurance policy—pleading — complaint—failure to plead facts constituting waiver—cause of death — evidence.</p> <p>Where the complaint in an action upon an accident insurance policy alleges that the plaintiff has duly complied with all the provisions of the constitution and by-laws of the defendant, with respect to the giving of due notice and proof of the accident and death, except that plaintiff did not give notice in m'iting of the accident or the death to the defendant within ten days thereafter, and did not furnish proofs of the said death within thirty days from the date thereof, and that she permitted an autopsy to he held upon the body without first giving the defendant notice thereof, and that the defendant has duly waived the said provisions and requirements of the constitution and by-laws with respect to the giving of notice and proofs of the said accident and death and the holding of an autopsy without notice, but fails to allege the facts claimed to constitute the waiver, the defendant, upon objection at the opening of the case, is entitled to a dismissal.</p> <p>Where, under a contract of accident insurance, the liability of the defendant does not extend to a death which results from or in consequence of any disease or is caused wholly or in part by bodily infirmity or disease, nor to any death unless caused by bodily inj ury which is external, accidental and is the proximate, sole and only cause of death, the plaintiff is bound to show that her testator’s death came strictly within the terms of the contract.</p> <p>In an action under such a policy the question arose whether the testator while going down a temporary wooden stairway at a railroad station tripped and fell, or whether he fainted, etc. Held, that a verdict in favor of the plaintiff was against the weight of the evidence in that she had failed to prove that the death was caused by bodily injury.</p>

Certiorari issued out of the Supreme Court and attested on the 21st day of October, 1914, directed to the board of supervisors of the county of Westchester, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in respect to the disallowance of and the refusal to audit the claim of the relator.

Separate appeals by the plaintiff, Oneida Community, Limited, and by the defendant, Oneida Game Trap Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 16th day of January, 1915, upon the decision of the court after a trial before the court without a jury.

Appeal by the plaintiffs, John E. Wheeler and others, as executors, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chenango on the 21st day of December, 1914, upon the decision of the court dismissing the complaint' after a trial -before the court without a jury.

Appeal by the plaintiff, Samuel S. Watson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of February, 1915, upon the decision of the court dismissing the complaint, both sides having agreed that certain issues be taken from the jury and decided by the court.

<p>Principal and agent — action by broker of building material for commissions — evidence.</p> <p>In an action to recover commissions alleged to have been earned by the plaintiff in procuring a contract for the sale of building material by the defendant, it was alleged that the defendant agreed with the plaintiff that if he would procure a contract either in his own name or the name of the defendant to furnish materials for certain buildings, the defendant would pay a sum equal to the difference between the amount for which it was willing to furnish the material and the price specified in the contract of sale; that the plaintiff procured an agreement from a building company to purchase materials, which, although taken in the name of the plaintiff, was in fact taken for the defendant and assigned to it by the plaintiff, defendant agreeing to pay plaintiff the “difference.” The defendant denied all of the material allegations of the complaint and alleged as a counterclaim that the transaction was a sale by the defendant to the plaintiff as a result of which plaintiff became indebted to it.</p> <p>Evidence examined, and held, that the relation between the plaintiff and the defendant was that of broker and principal, and that a judgment in favor of the plaintiff should be affirmed.</p> <p>Ingraham, P. J., dissented, with opinion.</p>

Appeal by the defendant, Park Terrace 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 25th day of January, 1915, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendants, Binghamton Trust 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 Broome on the 18th day of May, 1914, upon the verdict of a jury; also from an order entered in said clerk’s office on the 25th day of May, 1914, denying the defendants’ motion for a new trial made upon the minutes, and also from a second order entered in said clerk’s office on the 19th day of…

Appeal by the defendant, Times Square Improvement 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 7th day of May, 1915. denying defendant’s motion for judgment on the pleadings.

Appeal by the plaintiff, Louisa Fribourg, 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 December, 1914, overruling a demurrer to a separate defense contained in the amended answer of the respondent.

<p>Deposition — examination of defendants before trial—denial of allegations of complaint.</p> <p>A plaintiff who was induced to purchase stock at a price above its value, through the misrepresentation of the defendants, is entitled to an order for the examination of the defendants before trial, although they have denied the allegations of the plaintiff by a verified answer. Such answer raises no presumption that nothing can be elicited from the defendants in support of the allegations of the complaint.</p>

Appeal by the defendants, George H. Munroe 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 6 th day of October, 1914, granting plaintiff’s motion for judgment on the pleadings, after the service of an amended answer, and also from the judgment entered in said clerk’s office on the 19th day of October, 1914, pursuant to said order.

Appeal by the Trustees of the Presbytery 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 28th day of April, 1915, vacating a stay of proceedings herein and directing a sale of the petitioner’s real estate.

Appeal by the plaintiffs, Peter W. Sothman 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 4th day of May, 1915, denying a motion to vacate an order for the examination of the plaintiffs before answer.

<p>Money had and received—contribution by stockholder for financial investigation of corporation — refusal of contributor to oppose merger of corporation — right to share in moneys repaid by corporation.</p> <p>Where the plaintiff, a minority stockholder in a railroad corporation, together with other minority stockholders, contributed moneys for the purpose of investigating the financial condition of the corporation in order to determine whether to oppose a proposed consolidation of their corporation with another railroad company, and thereafter a committee, with whom various minority stockholders had deposited their stock, having successfully opposed the consolidation, accepted a proposal for the sale of then stock to then- corporation, which also paid back to the committee a sum representing its expenses in the financial investigation, the plaintiff, although it did not deposit its stock with the committee, and approved of the consolidation, is entitled to receive back the amount contributed by it for the purpose of the financial investigation.</p> <p>The recovery of the sum contributed may be had upon the equitable rule that where one person has in his possession money which he cannot conscientiously retain from another who is equitably entitled thereto, a promise to pay will be implied.</p>

Appeal by the defendant, William Sanger, from an order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 5th day of April, 1915, .denying his motion for a certificate that the charge against him should be prosecuted by indictment.

Appeal by the defendant, William M. Barrett, as president, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of December, 1914, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 23d day of December, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Maurice Lobsitz, 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 April, 1915, sustaining a demurrer to the complaint.

<p>Appeal by the defendant, Louis Thau, from a judgment of the County Court of Bronx county, entered in the office of the clerk of said county on the 24th day of December, 1914, convicting him of the crime of assault in the second degree, and also from an order denying his motion for a new trial and in arrest of judgment.</p>

<p>Appeal by the plaintiff, Olin J. Stephens, Inc., from an order of the County Court of Bronx county, entered in the office of the clerk of said county on the 17th day of February, 1915, retaxing plaintiff’s bill of costs and awarding a full bill of costs to the defendant.</p>

Appeal by the plaintiff, Harry Wallace Gabriel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of May, 1915, upon a dismissal of the complaint by direction of the court at the opening of the case and before any evidence had been received.

<p>Appeal by the defendant, Mahler Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 12th day of January, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the relator, Outerbridge Horsey, 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 18th day of May, 1915, denying his motion for a peremptory writ of mandamus.

Appeal by the plaintiff, George W. Young, from .an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York, setting aside the verdict of a jury in his favor and granting defendant’s motion for a new trial.

Oebtiobabi issued out of the Supreme Court and attested on the 26th day of January, 1915, directed to the board of supervisors of the county of N assau, commanding them to certify and return to the county of Nassau all and singular their proceedings had in disallowing and refusing to audit the claim of the relator.

<p>Municipal corporation — city of New York — acquisition of land for the purpose of extending and opening street — appointment of commissioners of estimate denied, where actual purpose is to construct elevated railway.</p> <p>Where, under section 970 of the charter of the city of New York, the board of estimate and apportionment votes that it deems it for the public interest that the title to certain lands should be acquired for the opening and extending of a street, the application of the city for the appointment of commissioners of estimate and a commissioner of assessment should be denied, where it appears that the actual purpose of acquiring title to the land is for the construction of an elevated railway.</p>

Certiorari issued out of the Supreme Court and attested on the 19th day of November, 1914, directed to Alfred P..

Appeal by the defendants, Herman Gronich and another, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on or about the 26th day of April, 1915, reversing a judgment of the City Court of the City of New York in favor of the appellants and granting a new trial.

<p>Appeal from parts of an order of the Supreme Court, entered in the New York county clerk’s office on the 33d day of February, 1915, directing plaintiff to retain a certain sum of money until entry of a judgment in an action pending between the respondent and the plaintiff, etc.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 10th day of March, 1915, resettling an order entered on the 3d day of March, 1915, denying a motion to vacate an order for the examination of defendant.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 17th day of March, 1915, granting leave to serve supplemental answer.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 1st day of December, 1914, denying a motion to change the place of trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 2d day of Hovember, 1914, denying a motion to make the complaint more definite and certain.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 25th day of February, 1915, denying a motion to vacate an order for the examination of a witness before trial, etc.</p>

<p>Motions to extend the time to serve a case on appeal.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 24th day of November, 1914, directing the plaintiff to serve a biff of particulars.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 30th day of Hovember, 1914, on a verdict, and also from orders entered in the New York county clerk’s office on the 9th and 12th days of January, 1915, denying motions for a new trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 26th day of March, 1915, continuing an injunction during the pendency of the action.</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, denying a motion for judgment upon an award of arbitrators, and also (as stated in the notice of appeal) from an order entered on the 19th day of December, 1914, refusing a resettlement of the prior order.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 9th day of July, 1914, upon the verdict of a jury, and also from an order entered on the 26th day of June, 1914, denying a motion for a new trial.</p>

<p>Appeal from part of a judgment of the Supreme Court, entered in the New York county clerk’s office on the 10th day of December, 1914, entered upon a decision after a trial at Special Term.</p>

<p>Appeal from so much of an order of the Supreme Court, entered in the New York county clerk’s office on the 29th day of March, 1915, as grants hhe plaintiff’s motion for leave to serve an amended complaint.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 3d day of December, 1914, upon the verdict of a jury, and also from an order entered on the same day denying a motion for a new trial.</p>

Appeal by Harris D. Colt, as executor, etc., and others, from an order of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the 27th day of Hovember, 1914, modifying and affirming as modified an order fixing a transfer tax upon the estate herein. Order affirmed, with ten dollars costs and disbursements, on opinion of Fowler, S. (reported in 87 Mise. Rep. 517).

Appeals from orders of the Supreme Court, entered in the New York county clerk’s office on the 15th day of March, 1915, denying motions for a change of the place of trial.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 24th day of March, 1915, granting a motion for the payment of alimony and counsel fee.</p>

<p>Negligence — injury to workman.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York comity clerk’s office on the 16th day of March, 1915, granting a motion to open default and to answer.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 28th day of November, 1914, upon the verdict of a jury,, and also from an order entered on the 11th day of December, 1914, denying a motion for a new trial.</p> <p>Judgment and order affirmed, with costs. No opinion. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.; McLaughlin and Scott, JJ., dissented.</p>

<p>Conversion — loan — value of bonds — action in aid of attachments.</p>

• Certiorari issued out of the Supreme Court and attested on the 18th day of December, 1912, to review respóndenos determination, as borough president, in removing relator from thfe position of chief engineer of the bureau of sewers.

<p> Murder—instructions as to duty to trespasser. </p>

Upon reargument ordered after decision of November last to reverse and dismiss the complaint, in view of - subsequent decisions of the Court of Appeals, on the power of this court-to direct final judgment of dismissal. (See 165 App. Div. 931.)

Appeal by the defendant from a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 13th day of November, 1911, in favor of plaintiffs, on the report of a referee.

Appeal by the city of New York from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 3d day of October, 1913. Order reversed, with ten dollars costs and disbursements, and motion to confirm the report of the commissioners of estimate and assessment granted.

<p>Appeal by the plaintiff from an order of the Supreme Court, made at Special. Term, and entered in the office of the clerk of the county of Kings on the 25th day of March, 1915, denying his motion for the custody of an infant child.</p>

<p>Order affirmed, with costs. All concurred, except Foote and Merrell, JJ., who dissented in an opinion by Foote, J.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 1st dayof April, 1915, granting a motion to dismiss the action and to vacate all proceedings therein.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 3d day of December, 1914, upon the verdict of a jury, and from an order entered on the 34th day of December, 1914, .denying a motion for a new trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 15th day of February, 1915, denying a motion to change the place of trial from the county of New York to the county of Onondaga.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 33d day of March, 1915, granting the respondent’s motion to be permitted to come in as an additional party defendant.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 24th day of April, 1915, vacating an order for the examination of the defendants before trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 30th day of December, 1914, upon the verdict of a jury, and also from an order entered on the 29th day of December, 1914, denying a motion for a new trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 2d day of March, 1915, denying a motion for a judgment for unpaid alimony and granting the defendant’s motion to annul the provisions for alimony in a decree from the time of plaintiff’s remarriage.</p>

Appeal by the plaintiff from so much of an interlocutory judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 12th day of Movember, 1914, as overrules a demurrer to two defenses contained in the amended answer, and also an appeal by the defendant from so much of said judgment as denies defendant’s motion to dismiss the complaint.

<p>Appeal from an order of the Supreme Court, entered in the Mew York county clerk’s office on the 2d day of Movember, 1914, denying a motion to make the amended complaint more definite and certain.</p>

<p>Appeal from a judgment of the Supreme Court, rendered on the 21st day of January, 1914, convicting the defendant of the crime of horse poisoning, and from an order denying a motion for new trial and in arrest of judgment.</p> <p>Judgment and order affirmed. No opinion. Present — Ingraham, P. J., McLaughlin, Laughlin, Dowling and Hotchkiss, JJ.</p>

<p>Appeal from an order of the Supreme Court, made at Special Term and entered in the New York county clerk’s office on the 3d day of May, 1915, directing the defendant to file and serve a bill of particulars.</p>

Appeal by the defendants, Eagle Pencil Company and another, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 9th day of February, 1915, refusing a further bill of particulars as demanded by said defendants.

Appeal by the defendant from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Dutchess on the 26th day of March, 1915, as amended by an order entered in said office on the 31st day of March, 1915.

Appeal by the defendant from a judgment of the Supreme Court entered in the office of the clerk of the county of Orange on the 16th day of December, 1914, in favor of the plaintiff, and also from an order entered in said clerk’s office on the 4th day of January, 1915, denying his motion for a new trial.

Appeal by defendants, Herman Galitzka and others, from a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 27th day of November, 1914, and also from an order entered in said clerk’s office on the 11th day of November, 1914.