Volume 169 — New York Appellate Division Reports

Appeal by the plaintiff, Henry Hendrickson, 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 3d day of April, 1913, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, Rodgers & Hagerty, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 22d day of December, 1914, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of January, 1915, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Arthur M. Werner, 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 25th day of March, 1915, upon the decision of the court dismissing the complaint after a trial at the New York Special Term.

Appeal by the defendant, The People of the State of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of June, 1914, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the plaintiff, Midtown Contracting 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 20th day of April, 1915, denying plaintiff’s motion for a jury trial and to frame issues.</p>

Appeal by the defendant, 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 New York on the 28th day of December, 1914, upon the verdict of a jury for $100,000, reduced by consent to $70,000, and also from an order entered in said clerk’s office on the 25th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Master and servant—Labor Law, section 11, construed — weekly payment of wages—who are “employees” within meaning of section-11 of Labor Law—payment by check — submission of controversy — power of Appellate Division where decision partly in favor of both parties.</p> <p>Under section 11 of the Labor Law, providing that certain corporations shall “pay weekly to each employee the wages earned by him," and under section 2 of said statute, defining the term “ employee" to mean “a mechanic, workingman or laborer who works for another for hire,” a stenographer, accountant, typist, chainman, levelman, civil engineers, rodman, bookkeeper, draftsman, structural designer and a clerk employed by a street railway company are not employees within the meaning of the statute.</p> <p>But a maker of blue prints, an office boy, a matron, a telephone switchboard operator and a chauffeur employed by such corporation are employees within the meaning of the statute.</p> <p>Since a civil engineer is not a workingman, mechanic or laborer, payment of his compensation by check is lawful.</p> <p>Since the Appellate Division, upon the submission of a controversy, has no power to pass upon moot questions or to act in an advisory capacity, where it is agreed that if the questions as to whether certain employees should be paid weekly be decided by the court in the affirmative, the plaintiff shall have a judgment for the penalty of fifty dollars in accordance with section 12 of the Labor Law, but if said questions be decided in favor of the defendant, the proceeding shall be dismissed, and a decision is made partly ip plaintiff’s favor and partly in favor of defendant, it will be assumed that it was the intention of the parties that the defendant should be liable for the penalty of fifty dollars in the event it was found to have violated the law in the case of any of the persons enumerated in the submission.</p> <p>Dowi/iNd, J., dissented, with opinion.</p>

<p>Master and servant—contract of. employment — hiring at will where no period specified — contract not constituting hiring for a year.</p> <p>A general or indefinite hiring is prima facie a hiring at will, and if a servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. A hiring at so much a day, week, month or year, no time being specified, is an indefinite hiring and no presumption attaches that it was for a day even, but only at the rate fixed for whatever time the party may serve.</p> <p>Action for breach of contract of employment contained in two letters written by the defendant to the plaintiff. Provisions of the letters examined, and held, not to constitute a contract for a year or for any definite term.</p> <p>Hotchkiss, J., dissented, with opinion.</p>

Appeal by the defendant, Equitable Life Assurance Society of the United States, 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 18 th day of March, 1915, granting the plaintiff’s motion for judgment on the pleadings after an answer had been served to the amended complaint.

Appeal by the plaintiff, Henry Leerburger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of March, 1915, adjudging plaintiff to be in contempt of court, and punishing him therefor.

Appeal by the defendant, Caroline 8. Spencer, from a judgment of the Supreme Court in favor of the plaintiff and one of the defendants, entered in the office of the clerk of the county of New York on the 3d day of February, 1915, upon the decision of the court after a trial at the New York Special Term.

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

Appeal by Francis H. Leggett & Company, thud party, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 1st day of March, 1915.

Appeal by Eva Maud Marine, individually and as executrix, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on or about the 1st day of October, 1914.

<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 Village of Batavia, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Genesee on the 6th day of June, 1914, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendant, Erie County Savings Bank, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 22d day of July, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, United States Steel Furniture Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga oh the 16th day of March, 1914, as corrected and amended by an order entered in said clerk’s office on the 23d day of March, 1914, upon the verdict of a jury for $10,000, later reduced to $7,000, and also from an order entered in said clerk’s office on the 23d day of March, 1914, denying…

Appeal by the defendant, The Supreme Court of the Independent Order of Foresters, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 30th day of January, 1915, upon the decision of the court after a trial at the Jefferson Equity Term.

<p>Appeal by the plaintiff, The Upton Company, from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 17th day of April, 1914, as limits the amount of plaintiff’s lien against certain property.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Niagara Special Term and entered in the office of the clerk of the county of Orleans on the 28th day of January, 1914, granting plaintiff’s motion to set aside the verdict of a jury in favor of the defendant and the judgment entered thereon and granting a new trial.

Appeal by the plaintiff, Apolina Kurgan Mees, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of April, 1915, overruling a demurrer to a separate defense set up in the answer.

Appeal by the defendant, Public! Construction Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 9th day of June, 1914.

<p>Will construed — life estate with remainder to heirs of life tenant — when relative of the half blood may take—Decedent Estate Law, section 90, construed.</p> <p>Where a testatrix gave to her daughter the net income of her estate for life, remainder to the “heirs” of said daughter upon her death, and the only heir of the life tenant at the time of her decease was her half sister, a daughter of her father by his first wife, the half sister is entitled to the remainder, to the exclusion of the brothers and sisters of the testatrix and their descendants.</p> <p>Such construction to the word “heirs” will be given as will prevent a partial intestacy.</p> <p>Section 90 of the Decedent Estate Law, which provides that relatives of the half blood shall not inherit from an intestate, if they are not of the blood of the ancestor from whom the property descends, has no application to the will aforesaid, for the remainderman takes under the will itself and not directly by descent or distribution from the life tenant.</p>

Appeal by the defendant, Edmondson Warrin, 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, denying his motion for judgment on the pleadings, and also from an order entered in said clerk’s office on the 5th day of May, 1915, denying his motion for a resettlement of the prior order.

<p>Appeal hy the plaintiff, Lucy A. Jefferson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Tompkins on the 27th day of February, 1914, upon the decision of the court dismissing the complaint after a trial before the court without a jury.</p>

<p>Appeal by the defendant, The People of the State of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 17th day of February, 1915, upon the decision of the court based upon the findings of a referee, and also from an order entered in said clerk’s office on the 15th day of February, 1915, granting plaintiff’s motion to vacate a prior order and for leave to withdraw its motion to confirm the report of the official referee herein.</p>

Appeal by the plaintiff, Annie A. Sizse, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of February, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 28th day of January, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Taxpayer’s action—recovery of moneys paid by a county to supervisor on improper audit by board.</p> <p>An action may be brought by a taxpayer to set aside audits made by the board of supervisors and to recover on behalf of the county moneys alleged to have been allowed to a supervisor for services in preparing the tax rolls of the town, where certain items for which payment had been made were not properly chargeable to the county under section 23 of the County Law.</p> <p>The legal capacity of a plaintiff to maintain such an action is not affected by the mere fact that he is a tenant in common of the lands assessed on which he has paid the taxes, and that they are listed on the assessment rolls in the name of the estate of plaintiff’s ancestor.</p> <p>Thomas. J., dissented.</p>

<p>Vendor and purchaser — purchase of town lots under unrecorded contract — possession as notice to subsequent mortgagee.</p> <p>Where a purchaser of town lots from a land development company builds a fence- along the street line, the inner boundaries having been fenced by adjacent owners, grades the lots, brings building stones thereon, plants shrubs and trees and is often seen thereon, and pays taxes on the lots which are assessed to him, such possession maintained for seven years amounts to notice to a mortgagee of the lots in question, together with other lots, so that he cannot ignore the acts of the purchasers and claim to be a bona fide owner, especially where the mortgagee covenanted upon the payment of a certain amount to release any lot from the mortgage lien, and it was not shown that the land company was itself engaged in grading or improving any of the lots.</p>

Appeal by the defendant, New York, Westchester and Boston 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 Westchester on the 14th day of October, 1914, upon the,verdict of a jury for $23,827.95, and also from an order entered in said clerk’s office on the 3d day of March, 1915, in so far as it denies defendant’s motion for a new trial made upon the minutes.

Separate appeals by The City of Rochester from, five orders of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 31st day of March, 1914, setting aside assessments for asphalt pavements in certain streets in the city of Rochester, together with costs in each proceeding.

<p>Trust — charitable gift for benefit of public — validity under section 12 of Personal Property Law.</p> <p>A gift by a decedent of one-half of her residuary estate to her executors, “in trust, nevertheless, to be used and devoted by them to the establishment of a school for girls in the town of Worth Salem,” is valid as a charitable gift for the benefit of the public under section 12 of the Personal Property Law, where it appears that the decedent, a woman of charitable impulses, and leaving no children or descendants, had long been a resident of said town, which was inhabited by people of small means and in which the facilities for public education were meagre.</p>

<p>Will — revocation by subsequent marriage and birth of issue — effect of acquisition .of additional property—¡presumption of revocation.</p> <p>The question whether an ante-nuptial will has been revoked under section 35 of the Decedent Estate Law by a subsequent marriage and birth of issue must be determined by the state of facts and the condition of the testator’s property at the date of the will.</p> <p>Hence, proof of the acquisition of additional property after the making of such a will cannot avail to prevent its revocation under the statute. Under section 85 of the Decedent Estate Law, marriage and parenthood do not raise a presumption of an intent to revoke, but are in themselves a revocation, unless express provision be made in view of the new duties arising from the changed relation.</p> <p>Mere accumulation of property in addition to that possessed at the date of the ante-nuptial will cannot be considered as a “provision” made by the testator for the new dependents upon him as a husband and father.</p>

<p>Crime — carrying of dangerous weapon—evidence of good character.</p> <p>Where upon the prosecution of a defendant not a citizen for the crime of carrying a dangerous weapon, it was established that he had the weapons in his room, evidence of good character is of little weight, especially where it was not directed to "show the defendant’s peaceful and inoffensive traits.</p> <p>Testimony as to the good reputation of the defendant, which started into circulation and was built up after his arrest, is incompetent.</p>

Certiorari issued out of the Supreme Court and attested, directed to Arthur Woods, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police force in the city of New York.

<p>Appeal by the defendant, Murtha & Schmohl Company, from 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 verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of December, 1914, denying defendant’s motion for a new trial made upon the minutes.</p> <p>The judgment was rendered for fifty-nine days’ detention and the towage charges for a certain brick barge.</p>

<p>Vendor and purchaser =— mortgage — purchase subject to mortgage — failure to record satisfaction of prior mortgage—notice of existence of mortgage — when purchaser estopped from questioning validity of mortgage — purchaser in good faith — costs.</p> <p>A purchaser of real estate, subject to a mortgage, after recording the conveyance and paying interest on the mortgage regularly for several years, discovered that the mortgagee’s attorney had failed to record a satisfaction piece and assignment of a prior mortgage, and also the new mortgage which she thereupon procured and had recorded. The mortgagee did not deny the discharge of the prior mortgage, and it did not appear that any rights had been or could be asserted by any third party, as the result of the omission to record any of the instruments, or that the purchaser had been injured thereby. In an action by the mortgagee to cancel the prior mortgage upon the ground that it had been discharged by payment prior to the purchase, and to foreclose the subsequent mortgage, the purchaser answered with denials and the defense that at the time of her purchase she had no knowledge or information of the existence of the new mortgage. Held, that the purchaser is estopped from questioning the legality of the new mortgage;</p> <p>That under the circumstances she should not be regarded as a subsequent purchaser in good faith and for a valuable consideration.</p> <p>Since the purchaser denied and litigated the validity of the mortgage itself, the discretion of the court in awarding costs and an allowance against her should not be disturbed.</p>

<p>Will — evidence insufficient to establish, undue influence.</p> <p>Plaintiff brought an action to contest the validity of her sister’s will upon the ground that it had not been properly executed, and that the testatrix was of unsound mind and physically weak, but the only issue submitted to the jury was the question whether or not the execution of the will had been procured by the undue influence of a brother of the testatrix. A verdict in favor of the defendants was set aside for the erroneous admission of statements by the testatrix subsequent to the execution of the will as to why she did not make the plaintiff “an heir” and as to the criticisms upon the conduct of her nephews subsequent to the execution of a prior will. Held, on all the evidence, that the plaintiff did not sustain the burden of proof which was upon her, even though the evidence claimed to have been erroneously admitted, be disregarded, and that the verdict should be reinstated.</p>

<p>Separate appeals by the defendants, New York Telephone 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 Nassau on the 29th day of December, 1914, upon the verdict of a jury for $10,000, and also an appeal by the defendant New York Telephone Company from an order entered in said clerk’s office on the 18th day of December, 1914, denying its motion for a new trial made upon the minutes. Also an appeal by the defendant Queensborough Gas and Electric Light Company from an order entered in said clerk’s office on the 4th day of January, 1915, denying its motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Brooklyn, Queens County and Suburban Bailroad Company, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in •the office of the clerk of said county on the 13th day of October, 1914, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 16th day of October, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Knickerbocker Portland Cement Company, from a judgment of the Supreme Court in its favor, entered in the office of the clerk of the county of Columbia on the 7th day of January, 1915, upon the verdict of a jury and also from an order entered in said clerk’s office on the 7th day of January, 1915, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Vivian & Company, Inc., and another, from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 8th day of February, 1915.</p>

<p>Workmen’s Compensation Law — injury to person employed in interstate commerce — award under State act — accidental injury arising out of and in course of employment— statute construed — accidental injury defined—English decisions — injury to lineman who sought shelter under railroad cars during rain storm.</p> <p>One employed by an interstate railroad company to relocate in this State á portion of a telegraph system used in connection with its business, may be entitled to ah award under the State Workmen’s "Compensation' Law for personal injuries received while so engaged, where the injury-was in no way attributable to the negligeinee of the employer, but was wholly' accidental. Such person is-not limited to a recovery under the Federal acts. . . . . ■ ■</p> <p>Section 10 of the Workmen’s Compensation Law, providing for an award to an employee for accidental personal injury arising out of and in the course of his employment, .without regard to the cause of the injury (excepting injury willfully inflicted by the employee or resulting from intoxication), means that the accidental injury must arise both out of and in the course of the employment.</p> <p>Hence, it seems, an accidental injury sustained during the course of the employment, but not arising out of the employment, would not be within the purview of the statute.</p> <p>Accidental personal injury defined.</p> <p>Where a workman employed to reconstruct telegraph lines for a railroad company took shelter during a sudden rain storm under cars standing on a railroad siding, and was injured when the cars were moved by a switch engine, he suffered an accidental injury arising out of and in the course of his employment, within the meaning of the statute, and is entitled to compensation, especially where no shelter from storms was provided for employees, and the time that the work was interrupted from the storm was not deducted from his wages.</p> <p>As the State Workmen’s Compensation Law uses, to some extent, the language of the English statute, it seems that the English decisions may be considered by our courts on questions of construction.</p>

<p>Insurance — accident and health insurance—proof not justifying recovery.</p> <p>Action by the beneficiary of an accident and health insurance policy against the insurer to recover indemnity for the death of the insured. The policy covered only bodily injuries caused by external and accidental means, independently of all other causes. Evidence examined, and held, that a verdict for the plaintiff should be set aside because a finding that the cause of the death was within the terms of the policy was against the weight of evidence.</p>

<p>Mortgage — discharge of lien of mortgage — tender of sum due — authority to make tender.</p> <p>A tender of the principal and interest of a mortgage debt at any time before foreclosure, although after the day appointed for the payment thereof, discharges the lien of the mortgage, but the debt remains. However, such tender can only be made by the owner of the mortgaged property, or by sdme one acting by his authority or in his interest, the right to redeem being inseparable from ownership.</p> <p>Hence, a stranger to the title, as, for example, one who has merely agreed to take an assignment of the mortgage, cannot destroy the lien of the mortgage by a tender of the amount due, made solely on his own behalf.</p>

Appeal by the Conlon Electric Washer Company, Inc., 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 19th day of May, 1915, setting aside the election of directors of the Conlon Electric Washer Company, Inc., and directing that a new election be had.

Appeal by the defendants, Lee Shubert 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 24th day of May, 1915, granting plaintiff’s motion for an injunction pendente lite.

<p>Civil service — appointment in competitive class without examination —• suspension of rules ■— removal of appointee for economical reasons.</p> <p>Where, at the request of a. public officer, the State Civil Service Commission suspends the rules pursuant to subdivision 2 of section 15 of the Civil Service Law so as to permit the appointment of a person to a position in the competitive class without examination upon the ground that peculiar and exceptional qualifications are required, the appointee is pro Tubo mee placed in the non-competitive class, and, hence, becomes subject to removal under circumstances applicable to persons in such class.</p> <p>Thus, such appointee is not entitled to be reinstated upon the ground that he was removed from his position without notice.</p> <p>Even assuming that such appointee would be entitled to notice and an opportunity to explain before his removal, he is not entitled to reinstatement where he was not removed for any delinquency, but through motives of economy, there being no work for him to do.</p>

Appeal by the plaintiffs, James A. Grant and another, 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 28th day of July, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Metropolitan Life Insurance 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 26th day of April, 1915, sustaining a demurrer to an affirmative defense in the answer on the ground of insufficiency.

Appeal by the defendant, Lyttleton Fox, as trustee, 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 16th day of January, 1915, upon the decision of the court after a trial at the New York Special Term. The judgment sustained mechanics’ liens against funds in the hands of the city of New York. Section 5 of the Lien Law (Consol.

<p>Appeal by the defendant, Frederick Geller, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1914, overruling a demurrer to the complaint.</p>

Appeal by the defendant, Clover Farms Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 15th day of April, 1915, affirming an order of the City Court of the City of New York overruling a demurrer to the complaint.

Appeal by Henry' A. Wise, as receiver, in the first two actions named above, 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 May? 1915, granting respondent’s motion for an award of damages as against the receiver, and appointing a referee to take proof as to the amount thereof.

Appeal by the plaintiff, Mitchell Motor Company of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of February, 1915, upon the verdict of a jury in plaintiff’s favor for twenty-one dollars and eighty cents, which sum was offset against the defendant’s costs.

Appeal by the defendant, Interior Metal Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of New York on the 5th day of April, 1915, upon the verdict of a jury rendered by direction of the court after the dismissal of defendant’s counterclaim.

<p>Appeal by the defendants, Edward Roddy and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of October, 1914, overruling their demurrers to the amended complaint.</p>

<p>Appeal by the plaintiff, Town of Oyster Bay, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 17th day of January, 1913, upon the verdict of a jury rendered by direction of the court.</p>

<p>Appeal by the defendant, Jacobs & Davies, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of December, 1914, upon the verdict of a jury for $4,700, and also from an order entered in said clerk’s office on the 17th day of December, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, C. W. L. Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of March, 1914, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Sale — auction sale -- rejection of bids — auctioneer agent of vendor — municipal corporations — city of New York — lease of privileges by dock department.</p> <p>A right reserved to reject any or all hids at an auction sale is to be exercised before the acceptance of any bid.</p> <p>An auctioneer is the agent of the vendor and his act in accepting a bid is the act of the vendor.</p> <p>Sections 419 and 430 of the Greater New York charter, relating to advertising for contract work and containing a provision authorizing the rejection of bids, do not apply to the sale of privileges on the terminal of a ferry by the dock department, under section 835 of the charter.</p> <p>Evidence examined, and held, to establish that at the time of the acceptance of a bid by the auctioneer representing the dock • department, for privileges at a ferry terminal, it was not announced that such bid was accepted subject to subsequent rejection by the commissioner.</p> <p>It seems, that the rule with respect to holding over applicable to ordinary tenaneiés does not apply to the holder of a temporary permit subject to the pleasure of the commissioner of the dock department of the city of New York.</p> <p>It seems, that it is the duty of the commissioner of docks of the city of New York, upon the expiration of a temporary lease of a dock terminal, to let the privilege, pursuant to an auction sale on public advertisement, or to get the consent of the commissioners of the sinking fund to make a lease without such sale.</p> <p>Ingraham, P. J., and Scott, J., dissented, with opinion.</p>

<p>Appeal by the defendant, Bachmann-Bechtel Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 10th 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 Alice M. Horton, contestant, from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 4th day of December, 1914.</p>

Appeal by the plaintiff, The Utica City National Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 3d day of March, 1915, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 26th day of February, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by Valentine A. Truszkowski from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of' Erie on the 28th day of October, 1914, directing Prank J. Schmidt and William J. Beyer, custodians of primary records of the county of Erie, to cancel and nullify a certificate issued by them to the appellant, Valentine A. Truszkowski, certifying that he was duly elected State committeeman for the Republican party for the sixth Assembly district of said county of Erie at a primary election held on September 28, 1914, and that they issue to the respondent, William Tenjost, their certificate that at said primary election he was duly elected to said office or position.</p> <p>The notice of appeal also states that appellant intends to bring up for review an order entered in said clerk’s office on the 19th day of October, 1914, which directed said custodians of primary records of the county of Erie to produce for inspection all the ballots cast at the primary election on September 28, 1914, of each and every election district constituting the sixth Assembly district of Erie county on which the name of petitioner, William Tenjost, appeared as a candidate for member of the Republican State committee, and that said custodians of primary records permit said William Tenjost, or his authorized agents, to examine said ballots.</p>

<p>Limitation of action—action to recover moneys paid by trustee without authority.</p> <p>Where a daughter at the time of her death was entitled to a vested remainder in her father’s estate, subject to the life estate of her mother, and after her mother’s death the executor and trustee under the will of her father undertook to distribute the estate and without authority paid to the daughter’s husband her share, and he by receipt of said sum. and solely by operation of law became a trustee de son tort and the moneys were not received by him upon any express trust or promise or agreement to carry out the terms of the trust contained in the will of the daughter’s father or under any agreement to perform the duties of the trustee, the six years’ Statute of Limitations began to run from the time of the receipt of the moneys, and is a bar to an action by the daughter’s administratrix to recover her share of the estate commenced long after the statute had run. It is immaterial that the form of relief demanded in the complaint was for an accounting, and that the husband received the moneys with notice of the trust.</p> <p>Iugraham, P, J., and Scott, J., dissented in part, with opinion.</p>

Appeal by the claimant, New York Telephone Company, from a determination of the Board of Claims of the State of New York, entered in the office of the clerk of said Board on the 2d day of September, 1914, disallowing the claim herein.

Appeal by the defendants, New York Air Brake Company and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of ■ the defendants, entered in the office of the clerk of the county of Jefferson on the 28th day of December, 1912, upon the report of a referee defining and determining the water rights of the several parties in and to the Black river at Beebee’s island.

<p>Motion by the plaintiff for a reargument of the appeal in each case.</p>

<p>Real property — ejectment — action toy State to recover possession of “Gospel and Schools” lot and “ Literature ” lot so designated under chapter 67 of the Laws of 1786—title of State.</p> <p>In an action of ejectment by the State to remove defendants from the possession of a “Gospel and Schools” lot and a lot “for promoting . literature,” which had been so designated upon maps for the sale to unappropriated State lands, under chapter 67 of the Laws of 1786, the defendants did not claim title in themselves, nor connect themselves with the title, but sought to defeat the plaintiff’s claim upon the ground that its title was defective. Evidence examined, and held, that a judgment in favor of the plaintiff should be affirmed.</p>

<p>Appeal by the defendants, Herman D. Bob and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Elections — qualification of electors at primary election—change of residence after enrollment — purpose of oath under section 72 of Election Law.</p> <p>A voter who has enrolled in an election district and subsequently changed his residence by moving into another district in which he has not enrolled, but in which he has resided for more than six months immediately preceding the holding of the primary, is not entitled to vote at the primary election, even though his name has. not been stricken from the enrollment list in the first election district and no proceeding instituted ' for that purpose, and he cannot compel the board of inspectors to receive, his ballot by taking the oath provided for by section 72 of the Election Law.</p> <p>The oath provided by section 72 of the Election Law is a means of identifying only a voter who is enrolled in the election district in which he seeks to vote.</p>

<p>Appeal by the defendant, Patrick Ryan Construction Corporation, 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 28th day of December, 1914, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 4th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Robert Trimble, individually and as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 15th day of January, 1915, upon the decision of the court, both sides having moved for the direction of a verdict at the close of the case, and also from an order entered in said clerk’s office on the same day, upon which order the said judgment was entered.

<p>Election — failure to qualify for office — defective oath — failure to deny bribery at election — quo warranto —burden of proof.</p> <p>One who receives the majority vote for the office of superintendent of highways of a town and who fails to qualify for office in that his official oath is defective in omitting a statement that he has not directly or indirectly paid moneys or property to electors as a consideration for ■ giving or withholding votes at the .election, is not entitled to hold office, and hence the town board has authority, under section 130 of the Town Law, to fill the vacancy by reappointing the former incumbent.</p> <p>In an action in the nature of quo warranto to try title to office the burden is on the relator to make out a better title to office than that of the defendant.</p>

Appeal by the plaintiff, Thomas F. Nolan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin on the 21st day of December, 1914, upon the decision of the court after a trial before the court without a jury, and also, as stated in the notice of appeal, from the decision upon which the judgment was entered.

Appeal by the defendant, Driscoll Brothers and Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 19th day of January, 1915, upon the verdict of a jury for $2,800, 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 petitioner, Postal Telegraph-Cable Company, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Albany on the 13th day of March, 1915, denying its application herein.

<p>Appeal by Betsey C. Adams, one of the heirs at law and next of kin of Ursula A. Kent, from a decree of the Surrogate’s Court of the county of Onondaga, entered in the office of said Surrogate’s Court on the 4th day of February, 1915, admitting to probate a paper propounded as the last will and testament of Ursula A. Kent, deceased, including missing parts thereof which the surrogate found had been cut from the will by the testatrix in her lifetime, without intent on her part to revoke the whole will but only the parts so eliminated.</p>

Appeal by the defendant, John L. Kellogg, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 8th day of August, 1914, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendants, Adon Morris and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 16th day of October, 1913, upon the decision of the court after a trial at the Madison Special Term.

Appeal by the plaintiff, Barwin Realty 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 10th day of June, 1915, granting the motion of the defendant corporation to compel plaintiff to amend the summons and complaint by striking out the receivers as parties defendant.

Appeal by the plaintiff, Charles F. Tafel, 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 3d day of May, 1915.

■ Appeal by the defendant, Nichols Copper Company, from an order of the County. Court of Queens. county, entered in the office of the clerk of said county on the 24th day of July, 1915, as resettled, by an order entered in said clerk’s office on the 27th day of July, 1915, denying its motion to vacate and set aside a former order permitting plaintiff to sue as a poor person.

<p>Appeal by the defendants, John G-. Borgstede, as president, 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 9th day of August, 1915, directing that a peremptory writ of mandamus issue requir- . ing defendants forthwith to allow the American Audit Company of New York, through its representatives (the said company having been designated by the relator), to examine and inspect, with the right to copy, all the books of account of the Ferncliff Cemetery Association, together with the vouchers upon which payments therein set forth have been made.</p>

<p>Municipal corporations — probation officers, city of New York—mandamus—when writ does not lie to compel acting chief city magistrate to prepare payroll — failure of board of estimate and apportionment to make appropriation for probation officers.</p> <p>The Special Term has no authority to compel, by mandamus, the acting chief city magistrate of the board of magistrates, city of New York, to prepare, certify and forward to the civil service commissioners a payroll allotting salaries to certain probation officers, or to compel the board of estimate and apportionment to readjust its budget so as to provide salaries for said officers.</p> <p>Mandamus will not lie to compel a public officer to perform a duty not imposed upon him by law and said acting chief city magistrate is not required, either by statute, or by the action of the board of city magistrates, to prepare and certify the payroll aforesaid.</p> <p>Moreover, the creation of the budget by the board of estimate and apportionment, together with the matters therein contained and their readjustment, is exclusively within the. jurisdiction of the administrative officers of the city government and the court has no-powér to interfere with or supervise then action by a writ of mandamus.. •</p> <p>Action by the board of estimate and apportionment under section 287 of the charter of the city of New York, being discretionary, cannot be compelled by mandamus.</p> <p>When the board of estimate and apportionment, in making up the budget, did not include salaries for the full number of probation officers appointed, it is a determination that some of them shall not receive a salary, and it is then for the board of city magistrates to determine which of the officers shall receive the salaries appropriated.</p>

Certiorari issued out of the Supreme Court and attested on the 3d day of March, 1914, directed to William Sohmer, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in refusing to revise and readjust an assessment of corporate franchise taxes imposed upon the relator under section 182 of the Tax Law (Consol.

Appeal by the claimant, Alice E. Smith, as administratrix from a determination and judgment of the Board of Claims of the State of New York, entered in the office of the clerk of said board on the 26th day of January, 1915.

<p>Ckoss-appeals by the claimants, Samuel A. Danes and another, and the defendant, State of New York, from a judgment and determination of the Board of Claims of the State of New York in favor of the claimants, entered in the office of the clerk of said Board on the 22d day of September, 1914.</p> <p>The judgment was for the sum of $9,050, with interest, and was for real property belonging to the claimants, situated on the Mohawk river in the town of Niskayuna, Schenectady county, appropriated by the State for barge canal purposes.</p>

Certiorari issued out of the Supreme Court and attested on the 2d day of November, 1914, directed to Seymour Van Santvoord and others, constituting the Public Service Commission of the State of New York, Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in this matter, together with a determination of the Commission thereon.

<p>Workmen’s Compensation Law construed — Commission not bound by-rules of evidence and procedure — hearsay evidence competent.</p> <p>Section 68 of the Workmen’s Compensation Law, providing that the Commissioners “ in making an investigation or inquiry or conducting a hearing shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, * * * but may make such investigation or inquiry or conduct such hearing in such manner as to ascertain the substantial rights of the parties,” and subdivision 2 of section 67 providing that the Commission shall adopt rules providing for the “ nature ” of the evidence to be accepted by it, wholly abrogate the substantive law of evidence, the common law, the statute law, the rules of pro cedure formulated by the courts, and all the technicalities respected by the legal profession.</p> <p>The Commission is authorized by the statute to make its investigation in any manner that it chooses, wholly unfettered by any previous law.</p> <p>The Commission may, under section 68 of the statute, receive hearsay evidence and base then findings thereon.</p> <p>An award of the Commission affirmed, although based almost entirely upon hearsay evidence.</p> <p>Lyon and Woodward, JJ., dissented, the latter with opinion.</p>

Appeal by the People’s National Bank of Brooklyn, New York, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 7th day of June, 1915.

Appeal by the defendant, Langrock Bros. Company, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 9th day of March, 1915, upon the decision of the court, a jury having been waived.

Appeal by the plaintiff, Anna Agresta, as administratrix, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of May, 1909, granting defendant’s motion for judgment on the pleadings after the service of an answer, and also from the judgment entered thereon in said clerk’s office on the 9th day of June, 1909.

<p>Motion for action upon charges brought by the Bar Association of the City of New York against the respondent of professional misconduct.</p>

Appeal by the employer, New York State Railways, from an award of the State Workmen’s Compensation Commission, entered in the office of the Commission on the 10th day of November, 1914, granting $5.59 weekly to Minnie A. De Voe during her widowhood, together with the sum of $100 for funeral expenses.

Appeal by the defendant, Clifton C. Draper, from a judgment of the County.Court of Albany county, rendered against him, on the 14th day of December, 1914, convicting him under the provisions of subdivision 3 of section 2460 of the Penal Law.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

<p>Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.</p>

<p>Attorney at law disbarred — conversion.</p> <p>Attorney at law disbarred for converting to his own use moneys intrusted to him by his client for the purpose of investment.</p>

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law., for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

<p>Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.</p>

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application upon the report of official referee on charges against the respondent, an attorney and counselor at law, of professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Appeal by the defendants, Charles A. Baudouine and another, as trustees, from a determination of the Appellate Term of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of‘New York on the 5tli day of May, 1915, affirming a judgment and order of the City Court of the City of New York in plaintiffs’ favor.

Appeal by the defendants, R. U. Delapenha & Co. 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 25th day of March, 1915, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on or about the 1st day of April, 1915, denying said defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, George B. Leighton, 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 August, 1915, resettling a prior order herein entered on the 6th day of August, 1915, and vacating an order entered on the 30th day of July, 1915, directing the examination before trial of all the defendants, except the Farmers’ Loan and Trust Company.</p>

Appeal by the plaintiff, Ida Weisman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of July, 1914, upon a dismissal of the complaint by direction of the court at the close of the case, decision of the motion to dismiss having been reserved until after the rendition of a verdict in plaintiff’s favor for $800. An appeal was also taken from the order dismissing the complaint.

<p>Appeal by the defendants, Ernst Wiener 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 16th day of November, 1914, upon the decision of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on the 24th day of November, 1914, denying defendants’ motion to dismiss the complaint at the opening.</p>

<p>Appeal by The City of New York from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of' the' county of New York on the 1st' day of May, 1914,. resettling 'and amending mine pro tunó a prior order entered in said clerk’s office on the 26th dáy óf September,' 1913, as sustains the objections of certain property owners't'o tKé report óf thé commissioner of assessment in this proceeding, and returns such report to the said commissioner for further consideration.</p>

Appeal by James J. Allen and another, as executors, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 1th day of August, 1915, denying their motion to exempt the estate of Seymour J. Hyde, deceased, from a transfer tax, and appointing a referee to determine the residence of the testator at the time of his death.

<p>Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of June, 1915, vacating a judgment entered upon a forfeited recognizance, and directing the return of the cash bail applied to the payment of said judgment.</p>

Appeal by the defendant, Sarah A. Smith, from an amended judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of April, 1915, upon the decision of the court after a trial at the New York Special Term in an action to foreclose a mortgage, and also from an order entered in said clerk’s office on the 21st day of April, 1915, granting plaintiffs’ motion to amend a judgment heretofore and on the…

Appeal by the defendant, George A. Just Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of January, 1915, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 22d day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defehdant, P. & D. Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of New York on the 8th day of April, 1915, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 20th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Carter & Weekes Stevedoring Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of June, 1915, denying defendant’s motion for a stay of proceedings.

<p>Appeal by the plaintiff, Charles Schneider Company, from two orders 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 24th day of May, 1915, sustaining demurrers of certain of the defendants to the amended complaint.</p> <p>The issues of law raised by the demurrers were brought on for hearing as contested motions.</p>

Appeal by the defendants, Israel Offenberg 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 25th day of November, 1914, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 2d day of December, 1914, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Anna 0. Meyer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 15th day of December, 1914, upon the decision of the court after a trial at the New York Special Term adjudging a certain set-back agreement void for uncertainty and directing that it be canceled of record.</p>

<p>Foreign corporations—membership corporation — mandamus to compel reinstatement of member illegally expelled — damages — supervision over foreign corporations — Appellate Division — authority to disregard technical errors and defects.</p> <p>A foreign corporation operating in this State through local unions which are unincorporated organizations may be compelled by mandamus to reinstate a member improperly expelled, and also may be held liable for damages for injuries resulting from the illegal expulsion.</p> <p>While mandamus might not lie against the local unions alone, they were properly joined as defendants in the proceeding because they acted as agents of the corporation.</p> <p>A foreign corporation which has come into this State to pursue the objects of its incorporation cannot deny the jurisdiction of our courts to scrutinize its action and to afford redress for a wrong done to a resident within the State.</p> <p>The fact that such corporation has failed to file the necessary certificate to “do business within the State cannot be interposed by it as a shield against proper supervision.</p> <p>The Appellate Division under section 1317 of the Code of Civil Procedure, as amended, may affirm a peremptory writ of mandamus and a judgment for damages, although the proceedings were irregular in that the justice who presided at the trial of the issues of fact himself issued the mandamus instead of certifying the verdict back to the Special Term, and in that no final order was made directing the issue of the peremptory writ of mandamus.</p>

Appeal by the defendant, Eugene Williamson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of February, 1915, 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 8th day of February, 1915, denying defendant’s motion to reduce the verdict, and also from an order entered in said clerk’s office on the 16th day of…

<p>Appeal by the plaintiff, Hudson Building, 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 24th day of July, 1915, overruling a demurrer to the first separate and distinct defense set up in the answer.</p>

Appeal by the plaintiff, Guiseppe Gazzola, as administrator, from a judgment of the Supreme Court in favor of the' defendant, entered in the office of the clerk of the county of New York on the 20th day of June, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of October, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the petitioners, Nicola Abo Samra 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 8th day of July, 1915, denying their motion for an order releasing as against them the lien of s-judgment.

Appeal by the plaintiff, James F. O’Brien, 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 7th day of June, 1915, denying plaintiff’s motion for judgment on the pleadings, after a demurrer had been interposed to the complaint, and also from the judgment entered in said clerk’s office upon the said order on the same day, sustaining defendant’s demurrer to the complaint, and dismissing the…

Appeal by the defendants, Lee Shubert 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 8th day of September, 1915, as resettled by an order entered on the 10th day of September, 1915, extending plaintiff’s time to serve an amended complaint.

Appeal .by the defendant, Otis Elevator Company, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 21st day of June, 1915, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, fourth district, in plaintiff’s favor, and also from the judgment entered in the office of the clerk of the Municipal Court of the ■ City of New York on the 9th day of…

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

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

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Appeal by the defendant, Arthur H. Woods, as commissioner of police, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of August, 1915, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, David N. Carvalho, from a judgment of the Supreme Court in favor of tne defendant, entered in the office of the clerk of the county of New York on the 9th day of June, 1915, dismissing the complaint at the close of plaintiff’s case upon the decision of the court after a trial at the New York Special Term.

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 17th day of March, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Peter M. Gordon and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 8th day of March, 1915, upon the dismissal of the complaint at the opening upon a trial before the court and a jury.

Appeal by the defendant, Isadore M. Brown, from a judgment of the County Court of Schenectady county, entered in the office of the clerk of said county on the 21th day of March, 1915, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 1st day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Marie Louise H. Watson, from so much of an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the , 18th day of May, 1915, as reverses a judgment of the City Court of the City of New York in plaintiff’s favor for $1,045, entered upon the verdict of a jury rendered by direction of the court and dismisses the complaint.

Appeal by the plaintiff, August Yeldert, from so much of an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 18th day of May, 1915, as reverses a judgment of the City Court of the City of Yew York in plaintiff’s favor for $1,045 entered upon the verdict of a jury rendered by direction of the court and dismisses the complaint.

<p>Appeal by the plaintiffs, JohnH. Woolley, individually And as executor and trustee, 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 Kings on the 3d day of July, 1914, upon the decision of the court after a trial at the Kings County Special Term, as amended by an order entered in said clerk’s office on the 24th day of July, 1914. An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered.</p>

<p>Appeal by the defendant, New York Central and Hudson River Railroad Company, from a judgment of .the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of December, 1914, upon the verdict of a jury for $21,000, and also from an order entered in said clerk’s office on the 5th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Public service corporation — gas "company — unconditional franchise to lay gas mains — failure to operate • gas plant — when village cannot attack franchise.</p> <p>Only the sovereign power of the State can assert .a breach of condition of a corporate franchise by an action in the nature of quo warranto.</p> <p>Where a franchise to lay gas mains in the streets of a village is unconditional and the duty to continue to supply gas to the village is not absolute, the village is not entitled to maintain a suit to restrain the corporation from using its franchise by laying new gas pipes in the streets," merely because it suspended operations for a period of years owing to its inability to compete with another company furnishing natural gas, and this aside from the fact that the suit, though nominally brought by the village, is really in the interest of a competing company. Moreover, the village, by continuing to tax the franchise of such gas company during the period when it had suspended operations, is estopped from contesting the existence of the franchise.</p> <p>For the above reasons the village cannot invoke the Public Service Commissions Law requiring the approval of the Public Service Commission to the laying of gas mains.</p> <p>It seems, that if the gas company is attempting to lay defective pipes, or is guilty of maladministration, the village has a remedy without . resorting to equity.</p>

<p>Municipal corporations—merger of village and towns to form city — constitutional law—bonded indebtedness in excess of that allowed by Constitution— election of officers of new city.</p> <p>Although article 8, section 10, of the Constitution of this State provides that no county or city shall be allowed to become indebted in excess of ten per centum of the assessed valuation of its real estate, which constitutional limitation does not obtain in the ease of villages, the Legislature, in authorizing a village to merge with certain towns and become a city, may provide that the new city shall be liable for the bonded debts of the former towns and village which compose it, although the aggregate thereof exceeds the constitutional limitations placed on cities. After the merger the constitutional prohibition is only effective to prevent the creation of new indebtedness beyond the percentage prescribed.</p> <p>On the merger of such village and" towns to form a city the Legislature may direct the trustees of the village to appoint the necessary election officers to hold and carry out the. ensuing election of city officials, the appointment to be made on a bipartisan basis.</p>

<p>Appeal by The People’s Trust Company, as executor, from parts of a decree of the Surrogate’s Court, county of Nassau, entered in the office of said Surrogate’s Court on the 28th day of November, 1914, as resettled by an order entered therein on the 19th day of December, 1914, confirming the report of a referee.</p>

Appeal by the plaintiff, Alexander Morency, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 21st day of September, 1914, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, John Washburn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 3d day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Otsego and Herkimer Railroad Company, from a judgment of the County Court of Otsego county, entered in the office of the clerk of said county on the 3d day of April, 1915, affirming a judgment of the City Court of the city of Oneonta in plaintiff’s favor for the sum of $134 and costs.

<p>Guaranty — promise to answer for default of another — Statute of Frauds — when promissory note sufficient memorandum — when promise to indemnify not within the statute — limitation of action— indemnity — part payment — principal and surety — extension of time to pay note — consent to extension by guarantor.</p> <p>It seems, that a writing in the ordinary form of a non-negotiable promissory note satisfies the requirements of the Statute of Frauds relating to a promise to indemnify one for the default of a third person.</p> <p>Moreover, a promise by one person to indemnify another for becoming a guarantor for a third is not within the Statute of Frauds and need not be in writing.</p> <p>Where the defendant agreed to indemnify the plaintiff if he would indorse the' promissory note of a third person and should be forced to pay the same, and to fulfill his promise gave to the plaintiff his own nonnegotiable promissory note, the Statute of Limitations on the latter note did not begin to run until the plaintiff had in fact paid the note upon which he was indorser.</p> <p>Moreover, the defendant, by making part payment on his obligation to the plaintiff after the latter had paid the note, took the case out of the Statute of Limitations.</p> <p>Where the notes which the plaintiff indorsed were four months'1 notes, and the note given by the defendant on his promise of indemnity was for one year, the plaintiff, by extending the time of payment of the notes he had indorsed, did not release the defendant from liability as surety.</p> <p>Moreover, where such extension of time was given at the express request of the defendant, it was not made without his knowledge and consent so as to release him.</p>

Appeal by the plaintiff, John E. Milholland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 23d day of December, 1914, dismissing the complaint on the merits, upon the decision of the court after a trial before the court without a jury. An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered.

<p>Practice — appeal—failure to make timely service of papers to perfect appeal—omission supplied:—new trial on appeal from Justice’s Court — amount of judgment demanded in counterclaim — counterclaim not stating cause of action — Statute of Frauds—mutual mistake.</p> <p>As section 3049 of the Code of Civil Procedure empowers the court to permit an omission in properly serving papers necessary to perfect an appeal to be supplied upon a direct motion for such relief, it may also give similar relief upon a motion to dismiss the appeal, as where the respondent seeks a dismissal because the appellant’s service of an undertaking to perfect the appeal was not timely.</p> <p>Although, on an appeal from a Justice’s Court, the appellant may demand a new trial in the appellate court where the judgment demanded by either party in his pleading exceeds fifty dollars (Code Civ. Proe. § 3068), the rule does not obtain where a counterclaim upon which the right to a new trial is founded is demurrable as wholly insufficient.</p> <p>A counterclaim seeking to recover back moneys paid which merely alleges that the payment was made for the debt of a third party, and that the promise was void under the Statute of Frauds, and also that the sum was paid “under a mutual misunderstanding,” does not state a cause of action. Money must be paid under a mistake of fact in order to be recoverable; a misunderstanding as to the law is not sufficient.</p>

<p>Railroad — negligence —injury to passenger by sudden jerk of train — trial—right to have jury instructed on question asked by them.</p> <p>In an action by a passenger on an elevated train of the defendant to recover for personal injuries, it appeared that as the defendant’s train slowed down on approaching a station, the plaintiff went to the platform of the ear and, as he claims, was thrown therefrom by an extraordinary and unusual jerk of the train. Held, on all the evidence, that there was a question of fact which was properly submitted to the jury.</p> <p>Where, in such action, the negligence complained of was confined to the unusual and extraordinary jerk of the train, and incompetence and negligence on the part of the motonnan and engineer, and the jury before rendering its verdict and while in charge of the court asked whether negligence could be predicated upon the fact that the gate was not closed, and that a guard was not on the platform, this matter not having been presented at the trial, the defendant was entitled to have the jury properly instructed on this question.</p>

Appeal by the defendants, The Villeneuve-Pohl Corporation and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of January, 1915, upon the verdict of a jury for $4,277.88, rendered by direction of the court in an action for conversion.

Appeal by the defendant, The Co-operative Building Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 7th day of April, 1915, upon the decision of the court after a trial before the court without a jury.

Appeal by Martha A. Silliman and another 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 Rensselaer on the 28th day of June, 1915, permitting the consolidation of the two petitioning corporations.

Certification of a question by the State Workmen’s Compensation Commission to the Appellate Division, under section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), upon reconsideration of a claim for compensation.

<p>Workmen’s Compensation Law — driver of meat delivery wagon injured while making delivery on foot not entitled to compensation.</p> <p>Where a person employed to drive a meat delivery wagon and to act both as driver and delivery man after he had stopped delivering with the horse and wagon for the day was injured during the evening by falling on a pail of broken glass while on his way on foot to deliver a package of meat and to arrange for the preparation and care of a dressed hog, the injuries cannot be held to have arisen out of his employment as a driver or incidental to such employment.</p>

Appeal by the defendant, Municipal Gas Company of the City of Albany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 15th day of April, 1915, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 20th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.

Oebtiobabi issued out of the Supreme Court and attested on the 16th day of February, 1915, directed to William J. McDermott, as superintendent of buildings of the borough of. Bichmond, city of New York, commanding him to certify and return to the office of the clerk of the county of Bichmond all and singular his records, reports, orders and other proceedings had in relation to the relator and certain work done by him.

Appeal by the defendant, Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of Tioga on the 1st day of April, 1915, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 11th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Metropolitan Trust Company of the City of New York, as administrator, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Otsego on the 1st day of July, 1915, upon the decision of the court after a trial at the Otsego Trial Term before the court without a jury.</p>

Appeal by the defendant, Commercial Casualty Insurance Company, 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 28th day of May, 1915, affirming a judgment of the City Court of the City of New York in plaintiff’s favor, and also an order denying defendant’s motion for a new trial.

Appeal by the defendant, Herman Katz, 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 27th day of July, 1915, as resettled by an order entered in said clerk’s office on the 9th day of August, 1915, granting plaintiffs’ motion to strike out parts of appellant’s answer as irrelevant and redundant.

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

<p>Appeal by the defendant, Leo E. Ostro, 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 30th day of March, 1915, sustaining a demurrer to the third separate defense in the answer.</p>

Appeal by the defendant, Edwin Duffey, as State Commissioner of Highways, 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 25th day of May, 1915, granting petitioner’s application for a peremptory writ of mandamus.

Appeal by the plaintiff, Richard A. Byrne, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin upon the decision of the court after a trial before the court without a jury, and also an appeal from the intermediate orders made in the action.

<p>Appeal by the defendant, Edith Hoyt Swift, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of June, 1915, upon the decision of the court after a trial at the New York Special Term.</p> <p>The judgment established a certain paper as and for the last will and testament of Albert A. Adams, deceased, and restrained the probate of a later paper purporting to be his will.</p>

<p>Appeal by the defendants, Augustus S. Hughes 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 27th day of July, 1915, denying the motion of the appellant Hughes for judgment on the pleadings.</p>

Appeal by the defendant, Mary L. Fraser, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of April, 1915, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 14th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, North River Realty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of September, 1915, denying its motion to vacate an order for its examination before trial.</p>

Appeal by the plaintiff, New York County National Bank, from part of a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 15th day of July, 1914, upon the decision of the court after a trial at the New York Special Term.

Appeal by the Columbia Trust Company, as executor, and another from part of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 2d day of July, 1915.

Appeal by The Central New England Railway Company from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 25th day of May, 1915, and also from the conclusions of fact and the rulings of law of the Commission.

Appeal by William F. Donovan and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 28th day of January, 1915. .

Appeal by the defendants, Truman C. Ives and others, from so much of an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Rensselaer on the 26th day of April, 1915, as denies in part defendants’ motion for a bill of particulars.

Appeal by the defendant, H. P. Cummings Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 1st day of June, 1915, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 3d day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the Paine Drug Company and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 20th day of February, 1915.

Appeal by the defendant, Leonard Johnson, from an order of the Supreme Court, made at the Cortland Trial and Special Term and entered in the office of the clerk of the county of Cortland on the 15th day of April, 1915, directing the plaintiff to receive the defendant’s answer, but imposing terms for granting the relief.

Appeal by the defendant, New York Central and Hudson River Railroad Company, from so much of 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 April, 1915, as directs that certain taxable costs awarded to defendant shall be to abide the event of the trial of the action herein. The order granted plaintiff leave to serve an amended complaint.

<p>Corporations — similarity of names—use of words “Material Men’s” — presumption that use of similar name was for purpose of obtaining benefit—use of name so as not to confuse business with one previously established.</p> <p>In a suit by the Material Men’s Mercantile Association, Limited, to enjoin the New York Material Men’s Mercantile Association, Inc., from conducting its business under its corporate name, upon the ground, among others, that the words “Material Men’s” in the plaintiff’s corporate name have by long user acquired a secondary meaning, it appeared that the plaintiff was incorporated in 1888 and was the first to use said words in a corporate title; that after the plaintiff had established and conducted for several years a successful business, the defendant was incorporated in 1918, and is engaged in a business similar to and is competing with the plaintiff. Neither company was engaged in manufacturing or had a plant or place of business other than an office. There was no evidence that the plaintiff had lost any business or customers to the defendant owing to the similarity of the corporate names, but it was shown that some of the plaintiff’s customers had been misled by the similarity of the names into believing that the business solicited by the defendant was solicited by the plaintiff.</p> <p>Held, that although the evidence relating to the secondary meaning acquired by the words 11 Material Men’s ” is not sufficient to entitle the plaintiff to the exclusive use of said words in its corporate name, yet the defendant should not be permitted to use the words in its name without accompanying them by other words clearly distinguishing it from the plaintiff.</p> <p>The use of so similar a name under the circumstances fairly warranted the inference that it was selected for the purpose of obtaining some benefit or advantage from the good will of the plaintiff’s long-established and successful business.</p> <p>Where one in the exercise of a natural right engages in a line of business in which another by the same name has conducted business, he is required so to regulate the use of his own name as not to confuse his business with that previously established.</p>

Appeal by the defendant, Philip Krotosky, 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 27th day of August, 1915, denying, upon a rehearing, defendant’s motion to vacate and set aside a warrant of attachment herein. Also an appeal from an order entered in said clerk’s office on the 14th day of September, 1915, resettling the order above mentioned.

<p>Appeal by the defendant, Charles D. Morgan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of December, 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 or about the same day, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Civil rights—dancing pavilion for social amusement—refusal to admit negroes —• failure to prove tender of entrance fee.</p> <p>The proper management of a dancing pavilion maintained as part, of a recreation or picnic ground, a charge being made for the privilege of dancing, involves the admission of persons who are mutually congenial socially, and it is not a “place of public accommodation, resort or amusement ” within the meaning of sections 40 and 41 of the Civil Rights Law forbidding the exclusion of any person on account of race, creed or color. Hence, the manager of such dancing pavilion is not liable for the penalty ■ prescribed by the Civil Rights Law for refusing admittance to negroes. It seems, however, that it would be a violation of said statute to exclude any person from such pavilion if the entertainment furnished consisted of a spectacle of public dancing in which those admitted were not expected to participate personally.</p> <p>Moreover, as the statute is highly penal, there can be no recovery of the penalty therein prescribed without proof that the parties seeking admission to a place of public amusement actually tendered the entrance fee.</p>

<p>Railroad — negligence — removal of person in enfeebled condition from train for failure to pay fare — proof justifying recovery.</p> <p>Action to recover for the death of a person who was put oil "a railroad train at a way station by the conductor because, having passed his destination, he refused to pay an additional fare. There was evidence that the decedent was suffering from a nervous breakdown, was under the influence of liquor and acted in an irrational manner when the additional fare was demanded. It further appeared that the conductor, on compelling the decedent to alight from the train, asked a bystander to look after him. The night was dark and wet, and to reach an adjoining hamlet the decedent was required to cross the defendant’s tracks. On the day following, his dead body was found beside the tracks, there being no definite proof as to how he met his death.</p> <p>On all the evidence, held, sufficient to justify a finding by the jury that the conductor, and the company he represented, had notice of the decedent’s enfeebled condition and that a verdict for the plaintiff was not against the weight of evidence.</p>

Appeal by the plaintiff, Alfred C. Brann, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 21st day of September, 1914, upon a dismissal of the complaint by direction of the court at the opening, upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

<p>Appeal by the defendant, George E. Weller, 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 5th day of May, 1915, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, third district, in an action for money had and received.</p>

Appeal by the defendant, James interlocutory judgment of the Supreme Cameron, from an Court in favor of the plaintiff, entered in the office of the clerk of the county of .New York on the 13th day of May, 1914, sustaining, in part, a demurrer to certain defenses and counterclaims set up in the amended answer.

<p>Trademark—use of individual name—when injunction pendente lite will not be granted restraining use of individual name in business.</p> <p>Where, after two brothers named Schinasi had established and built up a successful cigarette business under the firm name of “Schinasi Bros.,” two brothers of the same name but of a different family established another cigarette business under the same firm name but manufactured cigarettes of a different name and printed on the outside and inside of each box a notice stating that they had no connection with the first firm, and there was no unfair competition arising from an imitation of the packages and wrappers of the first firm, an injunction pendente Ute should not be granted restraining the second firm from using the name “ Schinasi,” or any combination of words in which “ Schinasi ” forms a part.</p>

Appeal by the relator, The Elmira Advertiser Association, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Chemung on or about the 19th day of June, 1915, denying its application for a peremptory writ óf mandamus.

<p>Appeal from an order of the Supreme Court," entered in the clerk’s office of the county of Albany on the 19th day of March, 1915.</p>

Appeal by the defendant, The Village of Meohanicville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 25th day of January, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 22d day of January, 1915, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal from a judgment of the Supreme Court, entered in the Cattaraugus county clerk’s office on the 23d day of March, 1914.</p>

<p>Decedent's estate — check stub — evidence — gift.</p>

<p>Appeal from a judgment of the Erie County Court, entered December 34, 1913.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office November 16, 1914, upon a verdict for $4,102.99, and from an order entered November 20, 1914.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office January 25, 1915, upon a verdict for $800, and also from an order entered January 23, 1915.</p>

<p>Appeal from interlocutory judgment of the Supreme Court, entered in the New York county clerk’s office July 8, 1914,</p>

<p>Motion to dismiss an appeal from an interlocutory judgment.</p>

Appeals from orders of the Supreme Court, entered in the New York county clerk’s office on the 10th day of October, 1914, granting motions for peremptory writs of mandamus.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 20th day of March, 1915.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office onljthe 23d day of February, 1915.</p>

<p> Practice —stay. </p>

Appeals from orders of the Supreme Court, entered in the New York county clerk’s office on the 31st day of August, 1914, granting motions to satisfy of record judgments in favor of defendants.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 16th day of March, 1915, denying a motion for a temporary injunction.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office, denying the plaintiff’s motion for an order vacating and setting aside an order for examination before trial.</p>

<p>Crime —- receiving stolen property—knowledge.</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 7th day of April, 1915, denying the defendant’s motion for a trial by jury.</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 the application of Anna Kopp to have a gross sum assigned to her for dower.</p>

<p>Appeal by the plaintiffs 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 31st day of November, 1914, as amended by an order entered in said office on the same day.</p>

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Nassau county on March 20, 1914; and also from an order entered in said office on the same day denying its motion for a new trial.