Volume 17 — New York Appellate Division Reports

Appeal by Frank P. Manhardt, individually and as removed administrator of the estate of Margaret Seitz, and as administrator with the will annexed of the estate of Charles L. Mary, from a -decree of, the Surrogate’s Court of the county of Erie, entered in :said Surrogate’s Court on the 21st day of July, 1896, upon the decision of the court rendered in a proceeding settling, his accounts and directing him to pay'over the funds and deliver the property of the estate to William…

<p>Life insurance—misstatement of age and as to the existence of other insurance— voawor by acceptance of a premium — a by-law limiting the time to sue must be reasonable.</p> <p>A defense to a recovery upon a policy of insurance, that the applicant understated her age in the application, and that she falsely stated therein that she was not insured in any other company, is waived where the insurer, having knowledge of the existence of such defense, accepts a premium from the beneficiary of the policy, pursuant to a demand made therefor, after proofs of death have been received by it.</p> <p>The provisions of the policy and the by-laws of an insurance association should be construed together, and a by-law which provides that no action shall he maintained upon a policy unless it is begun within six months after the death of the insured, should be held to be void, as being unreasonable, when attempted to be applied to a case in which the insurer has delayed its final determination as to whether it will pay the claim until three days before the expiration of such six months.</p>

' Appeal by the plaintiff, Mary McDonald, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of .the county of Onondaga on the 2d day of November, 1895, upon a dismissal of the complaint directed by the court at the close of the evidence after a trial at the Onondaga Circuit.

That the action would lie, although no claim was made that the brick in ques- . tion were not as good as any that could be had, or that the price was too high, or that the common council had any evil motive in conducting the proceedings in the form adopted.

Appeal by the defendant, Edward L. Fuller, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 28th day of' August,. 1896, upon the decision of the court rendered after a trial at the Monroe Special Term overruling said defendant’s demurrer to the complaint.

Appeal by the defendant, Jennie E. Knapp, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 2d day of February, 1897, upon a decision made upon a trial of the action at the Onondaga Special Term, denying her motion to dismiss the amended complaint of the plaintiffs.

<p>Appeal by the defendants, William 0. Beecher and others, from a judgment of the Supreme Court in -favor of the plaintiff, entered in the office of the clerk p'f- the county of Miagara- on the 24tli day of October, 1896, upon the verdict of a jury for $2,656 damages,' rendered by direction of the court, and also from an order bearing date, the l'5th day of September,, 1896, and, entered in said clerk’s . ' office, denying the defendant’s motion for a new trial made upon the minuteSi</p>

Appeal by the defendant, Ira I). Brainard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on-the 6th. day of February,. 1896, upon the verdict of a jury, and also from an .order entered in- said. clerk’s office on the 25th day of Februaiy,' 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Buffalo—grade crossing commissioners— recovery for property damaged but not taken by a change of grade — measui'e of damages as between an owner and a lessee — costs are discretionary. ’ .</p> <p>Under the provisions of section 13 of chapter 845 of the Laws of 1888, as amended by section 9 of chapter 355 of the Laws of 1890, enacting that, if the grade crossing commissioners of the city of Buffalo decide to change the grade of a street in that city, and also decide that “any property may be injured thereby for which the owners or persons interested therein are lawfully entitled to compensation,” the grade crossing commissioners may apply to the court for the appointment of a commission to ascertain the compensation to be paid, an owner or person interested is entitled to compensation where bis- property, although not actually taken, is injured by the change made in the grade.</p> <p>A lessee of premises,, injured by an improvement made by grade crossing commissioners, is a party “ interested” in'the land which may be injured within the meaning of said section 13, and while not entitled to show a loss of profits in his business as an element of damages, he may prove the effect upon his business while the grade crossing improvement was being made, and also its effect after its completion, as this bears on the question of the value of tlSte property for business purposes, and is competent as affording a basis for apportioning the damages to the property as between the lessee and the owner.</p> <p>The owner in such case is entitled to recover past damages as measured by his diminished rentals, and also damages to the fee.</p> <p>A proceeding taken by the grade crossing commissioners of the city of Buffalo for the appointment of commissioners to ascertain the compensation to be paid to owners or parties interested in lands proposed to he taken by the commissioners, or which may he injured, is a special proceeding, and the allowance of costs rests in the discretion of the court.</p>

Appeal by the plaintiff, William Brown Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 31st day of December, 1895, upon the decision of the court separately stating the facts found and the conclusions of law, rendered after a trial at the Onondaga Special Term, dismissing his complaint, without costs.

Appeal by the plaintiff,, Isidore Neuman, 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' 11th day of October, 1895, upon the decision of the court, rendered after a trial at the Oneida Special Term dismissing his complaint upon the merits.

Appeal .by the.defendant, George S. Porter, from a judgment of the Supreme Court in favor of the plaintiffs for $902.27 damages and costs, entered in the office of the cleric of the county of Oneida on the 23d day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the American Central Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 12th day of October,. 1896, for $1,670.59 damages and costs, upon ..the report of a referee, separately stating the facts found and the conclusions of law. . • ' .

Appeal by the defendant, The Town of Vienna, from portions of a judgment of the Supreme Court in favor of the plaintiff and the defendant The Town of Verona, and against The Town of Vienna, entered in the office of the clerk of the county of Onondaga on the • 13th day of January, 1896, upon the decision of the court, ■ separately stating the facts, found and the conclusions of law, rendered after a trial at the Oneida Special Term.

Appeal by the plaintiffs, Charles H. Keep and others, from a judgment of the Supreme Court in favor of.the defendants, entered in the office of the clerk of the county of Niagara on the 24th day of July, 1896, 'upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of August, 1896, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal -by the defendant, The City of Buffalo, from a judgment. ■ of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 31st day of July, 1896, upon the verdict of a jury for $72(3.06, and also from aii order entered in said clerk’s office on the 29th day of August, 1896, denying- the -defendant’s motion for a new -trial made upon the minutes.

Appeal by the defendant, William S. Slade, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county o'f Erie on the 28th day of November, 1896, denying his motion for an order requiring the plaintiff to receive an undertaking upon appeal from a judgment of foreclosure and sale as a full compliance with sections 1326 and-133.1 of the Code of Civil Procedure.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Wayne Circuit and entered in the office of the clerk of the county of Wayne on the 2d day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes upon the verdict of a jury rendered after a trial at the Wayne Circuit, which order also stayed all the proceedings on the part of the plaintiff, pending the determination of…

Appeal by the plaintiffs, Edward M. Cameron and another, from an order of the Supreme Court, made at the Schoharie Special Term and entered in the office of the clerk of the county of Albany on the 29th day of December, 1896, granting to the defendants a new trial on the ground of newly-discovered evidence.

Appeal by the defendant,. Isaac Burnap, from a. judgment of the .-County Court of Cheiiango county in favor of- the plaintiff, entered in the office of'the clerk of the county of Chenango, on the.loth ■day of June, 1896, which modified, and affirmed as modified-, a judgment in favor of the plaintiff rendered by a justice of the peace. . -' .• The defendant leased his farm to- one White to work, on shares.

Appeal by the defendant, The. Burden Iron Company, from a judgment of the Supreme- Court, in favor of the plaintiff, entered-, in the office of the clerk of the county of Rensselaer on the 24th day of October, 1896, upon the verdict of a jury, and also from an order hearing date -the 22d day of October, 1896, and entered in-said • clerk’s office denying the defendant’s motion for a hew trial made upon the minutes'. ■ . ■ -

Appeal by the defendant, William D. Marks, from a judgment of the Supreme Court iii favor of the plaintiff, entered in the'office of the clerk of the county of Essex on the 2d day of October, 1896, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order denying the defendant’s motion for a new trial made upon the minutes. . The action was for damages caused by the bite of a dog owned by the defendant.

Appeal by the defendants, Earl Y. Smith 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 Schuyler on the 29th day of -July, 1895, upon the decision of the court rendered after a trial at the Schuyler Circuit before the court without a jury. Ejectment. The plaintiff’s title is thus derived: Bernardus :Swartwoufc is the common source of title..

Appeal by the defendants, Gr. Hector Ciernes 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 Warren on the 15 th day of September, 1896, upon the decision of the court rendered after a trial at the Warren Special Term. The defendant, the IToricon Improvement Company, the mortgagor, made no defense; the appellants are judgment creditors of the mortgagor, with judgments junior to the mortgage.

<p>Highways'—accident, on a hillside without' guards, caused by defective ?ta/rness—lia, bility ofthe-town — mistake of judgment of.a commissioner of highways — his duty in the selection for attention, of the most urgent calls. . • .</p> <p>The driver of a team who, in hauling heavy loads up a hill, makes continued usé of a harness .which has been in service some eight years, and of which the iron links, fastening one of the togs to the hames, are half worn through, is guilty of contributory'negligence in -respect to an accident caused by the breaking of one of the defective links, because of which the wagon is backed over the side of a -road where no- protecting ■ fender or guard has been placed.</p> <p>The fact that á road (dug out upon a hill side) which ascending at the rate of one foot in ten. is sixteen feet wid'e, level from side to side, in excellent ■ condition, ■and. which experience has not shown to.be dangerous, is not provided1 with a , guard on its outer edge, does not show that .the road is defective, nor charge negligence upon the town in which it is. situated.</p> <p>A mistake in judgment by a highway commissioner after a' careful consideration of the. subject, is not negligence.</p> <p>The duty of the highway commissioner to consider the relative urgency of the calls upon the limited resources afforded him by the sum appropriated by the town for highways, considered.</p>

Appeal by the defendant, The Northern Central 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 Schuyler on the 1st day of December, 1896,, upon the verdict of a jury, with notice of an intention to- bring up for review upon such appéal an order entered in said clerk’s office on the 7th day of October, 1896, denying the defendant’s motion for a,' new trial made upon the minutes. . •

<p> A statute talcing away all compensation for the exercise of his criminal powers by a justice of the peace and also for the services of the executive officers in enforcing them, is unconstitutional. </p> <p>Where the Constitution has fixed the term of an office, and prescribed the cause for which, and the method by which, an incumbent of such office may be removed, such cause and method are exclusive, and it is beyond the power of the Legislature to remove or suspend him from office for any other cause or in any other method.</p> <p>The office of justice of the peace, is a constitutional office, having both civil and criminal jurisdiction, and it cannot be abolished by the Legislature, either directly or by indirection or evasion, whether that evasion be of the express terms or of the spirit and intent of the Constitution.</p> <p>The provisions of sections 19 and 30 of chapter 22 of the Laws of 1896, enacting in substance, that neither the sheriff, under sheriff, deputy sheriffs or constables, elected or appointed in the county of Washington or the village or town of Fort Edward, shall, as such, be compelled to serve in that town or village any paper or process whatever, issued by its police justice or by any justice of the peace residing or doing business there, relating to any criminal proceeding. or be paid by such town or county for such services, and further enacting that no justice of the peace of the town shall be compelled to issue any process of any kind, for any criminal offense, and that neither the county nor town shall be liable to pay such justice of the peace any fees for any services rendered or disbursements paid or incurred, under or by virtue of any process in such criminal proceedings, are void, being a violation of the intendment of the Constitution, and an infringement by the Legislature of the judicial powers of the State, in that the practical effect of such provisions is not only to relieve the justice of the peace from the duty of exercising his powers and the jurisdiction of his office in criminal cases, but to deprive him, if he does so-voluntarily, of all compensation therefor, and to relieve the executive officers of that court from all obligation to enforce its processes and judgments and to prohibit payment to them therefor if they do.</p> <p>Section 20 of the Constitution of the State,' which provides “ no' judicial officer, except justices of the peace, shall receive to his own use, any fees or perquisites of fees,” is not only a constitutional recognition that the compensation of a justice of the peace is by his fees, but is also an express permission to receive fees for his services, which the Legislature cannot directly or indirectly revoke.</p>

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 21st day of October, 1896, upon the verdict of a jury, and also from an order bearing date the 22d day of October, 1896, and entered in said clerk’s office, denying' the defendant’s motion for a new trial made upon the minutes.</p> <p>The action is one based upon the alleged negligence of the defendant, which resulted in the death of the plaintiff’s intestate. The accident occurred'between three and four o’clock in the afternoon of October 22, 1892, at a point where the tracks of the defendant are intersected and crossed by Madison street, in the city of Troy. At that point the tracks of the defendant run north and south, and occupy the whole space of what would be River street were it extended north to this point. Madison street, which here • intersects it, is a street running east and west. The northwest corner of Madison street, and what for the sake of - brevity we will call River street, is occupied by the Rensselaer Hon Works; their premises' are surrounded by a board picket fence, some twelve-feet in height,, extending westwardly on Madison. street and northerly on River street. Next east of this'fence there are two narrow-gauge tracks running north for a short distance, and. then entering the premises of'the Rensselaer Iron Company. Next east of the narrow-gauge tracks is the westerly track of the defendant.</p> <p>At the time of the happening1 of the accident, there was. a wagon loaded with firebrick on the north side of Madison street, the '.heads of the horses attached to ¡such wagon looking west, the rear end of the wagon being within three feet of the. westerly , rail of the defendant’s west track. One or two small cars, called in the "case dump ears, were, upon these narrow-gauge • tracks, .directly •against the wagon box, and the driver of. the wagon was engaged in unloading the firebrick from the. wagon into these small cars. From" the ground .to the top of the wagon box was .a distance of about six feet. ■ The plaintiff’s intestate was- about five, feet two inches in height.</p> <p>■ • Shortly before the happening of the accident, an engine of the ' defendant was backing down from the. north, coming in the direction of- 'Madison street; it stopped a short distance away to admit . .of the readjustment of some switches for the: passage of an engine and some freight cars, and then started up and proceeded upon its way south, and it was the tender of .this engine which struck the . plaintiff’s intestate and caused his death. Further facts will appear in the opinion. ‘ .</p>

Appeal by the defendants, Wallace T. Foote, Jr., and another, from an order of the Supreme Court, made at the Essex Special Term and entered in the office of the clerk of the county of Essex on the 2d day of January, 1897, appointing a receiver ¡pendente lite of the business 'of the firm of Wiitherbee, Sherman & Co. .

Appeal by the defendant, John W. Porter, from an order of the County Court of Fulton county, entered in the office of the clerk off the/county of Fulton on the 24th day of December; 1896, granting..leaye to the plaintiff to issue an execution, . ... 7 '-0,n the 25th day. of November, 1887,. a judgment was rendered in the: Justices’.

Appeal by the plaintiff, Sarah Teasdale^ from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 29th day of May, 1896, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Emerson Orvis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 18tli day of February, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office - on the 18tln day. of February, 1895, denying th¿ plaintiff’s motion, for '■& nesv trial' made,, upon -a -.case, and. exceptions. • ' . . ■ ; ...

Appeal by Seymour Van Santvoord and another, as receivers of .the Walter A. Wood Mowing and Reaping Machine Company, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on. the 28th day of January, 1897, directing them to pay the plaintiff his wages as a preferred claim under the statute.

<p>Certiorari issued out of the Supreme Court and attested on the 4th day of December, 1896, directed to J. Franklin Barnes; and Charles B. Swartwood, as two of the supervisors of Schuyler county, New York, commanding them to certify and return to the office of the clerk of the county of Schuyler all and singular their proceedings in relation to the designation of The Watkins Review, as the paper in which.-to publish the Session Laws in the county of Schuyler.</p> <p>The questions submitted in. this case arise upon the return to a writ of certiorari issued on December 4, 1896, on the petition of the relator for the purpose of' reviewing proceedings of the defendants as a majority of the Democratic members of the board of supervisors of Schuyler county in designating, on the 1st day of December, 1896, The Watkms Review as the newspaper to publish the session laws and concurrent resolutions of the Legislature.</p> <p>The petition sets- forth that relator was, and has been,-for twenty years the proprietor of a newspaper called The Watkms Democrat, issued weekly in the village of Watkins, in said county of Schuyler, N. Y.; that for twenty years it has represented the Democratic party, which is one of the two principal political parties into which the people of Schuyler county are divided. At the time of the last election, and during the last Presidential campaign, it was the only newspaper in the county of Schuyler which advocated the election of the regular Democratic candidates nominated in and for the offices. to be filled in said county by the regular Democratic party in convention assembled.</p> <p>The relator f urther stated in the petition that his newspaper, at the last election, did not support the nominees of the Democratic convention held at Chicago, or the State ticket afterwards nominated by the same party, but did support the persons nominated for National and State offices by the “National Democratic” party; that The Watkins Democrat is, and for years last past has been, the only Democratic newspaper published in the county of Schuyler;</p> <p>That The Watkins Review is a non-partisan newspaper printed in said county," owned by John Corbett, one of the Republican members of the board of supervisors;</p> <p>' That the respondents, a majority of the Democratic members of the board of supervisors, on December 1, 1896, designated The Watkins Review as one of the papers in which to publish the session laws and concurrent resolutions of the Legislature; that The Watkins Review does not represent either of the two principal political parties into which the people of said county are divided, and the designation does great injustice to the relator, whose paper, The Watkins Democrat, fairly represents the political party to which the majority of the Democratic members of said board belong.</p> <p>The return of the respondents denies that they had, in fact; made any legal designation of The Watkins Review as alleged in the petition, but admitted that they had offered to the board of supervisors written resolutions signed by them, of one of which the following is a copy:</p> <p>“ Resolved, In conformity with the law in such cases made and provided, that the Watkins Review, a weekly newspaper published in the village of Watkins, in said county, be and the same is hereby duly designated as the second paper for the publication of the .session laws of 1897, as it more fairly represents the Democratic party than any other paper published in Schuyler county.</p> <p>■ “ CHARLES B. SWARTWOOD.</p> <p>“ J. FRANKLIN BARNES.”</p> <p>The return also sets forth that after offering said resolution “ Supei’visor Barnes moved that the 1 Watkins Review ’ be designated as the second paper to publish the laws of 1897, and his motion ""prevailed. The .chair declared the ‘ Watkins Review’ was duly designated.”</p> <p>- The return also contained the following allegation: ■“ The respondents .herein further certify and return that the paper mentioned in the petition and writ as.the ‘Watkins Democrat’ did not either ■fairly or at all represent the political' party to which the respondents herein belong and belonged at the last preceding election for State and Rational nominees,-and at the time the said paper, * The . Watkins Review,,’ was designated as aforesaid to publish .the session laws for 1897. That the party represented by the said paper, the.</p> <p>‘ Watkins Democrat,’ at that time polled but thirty-six votes.in the . county of Schuyler where said "paper was. published and .circulated. And said ‘ Watkins Democrat’. did not at that time, and does not now,, represent the. Democratic party, neither did it at that time, nor does it now represent one of the two. principal" political parties into which the people of Schuyler county ¿re divided, neither did it then, nor does it now fairly represent the-. political party to which these respondents belong,” It also: stated that no proof was offered by the relator before the board of supervisors that the Watkins Democrat represented" the political party to which the respondents belonged.;; while on the contrary, the proceedings of the Democratic committee.of said cotinty were proved, "by which resolutions • were passed, as follows : “ The Democratic "committee of Schuyler county in regular session' on the afternoon "of October 16th, Dr. J. E. Barnes presiding, unanimously passed, the following resolutions introduced by Dr. John M. Quirk of Mon-tour Falls :</p> <p>“ Whereas, the Watkins Democrat in advocating the candidacy of" Palmer and .'Buckner,'Griffin-and Heinrichs .and De Melville Page for Congress in this twenty-ninth district,, nominees of the so-called National-Democratic party, does not represent the regular organization of the Nation, State and Congressional District ■ of Schuyler comity; therefore,</p> <p>“ Resol/ued, "That it is. the sense- of this . body, the Schuyler County Democratic Committee, that the ‘ Watkins Democrat’'is not a representative Democratic oaper, and is not entitled to the party . patronage.”</p> <p>The return also contains a general- denial of the allegations • contained in the petition, setting forth the right of the Watkins Democrat to he designated as the paper to publish the session laws and concurrent resolutions of the Legislature.</p> <p>Section 19, chapter 686, Laws of 1892, contains the following provision: “ The members of the board of supervisors in each county</p> <p>representing, respectively, each of the two principal political parties into which the people of the county are divided, or a majority of such members representing, respectively, each of such parties, shall designate in writing a paper fairly representing the political party to which they respectively belong, to publish the session laws and concurrent resolutions of the Legislature required by law to be published, which designation shall be signed by the members making it and filed with the clerk of the board of supervisors.”</p>

Appeal by the defendant, Carthon Gutches, from a judgment of the County Court of. Chenango county in favor of the plaintiff, ■entered in the office, of the clerk of the county of Chenango on the 1st day of July, 1896, affirming a judgment rendered by a justice ■of the peace. .

Appeal by the defendant, The Village of Saratoga Springs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 10th day of October,. 1896, upon the'decision of the court rendered after a trial at the Saratoga Special'Term.

Appeal .by the defendant, David Gregg,' as committee, etc., of Amasa R. Gregg, an incompetent' person, from á judgment of the . .Saratoga County Court in favor óf the plaintiff,- entered in the office of the clerk of the county of Saratoga on the 20th day of Rovember, 1896, upon the verdict of a jury, and also from an order entered.in said clerk’s office on the 30th day of Rovember, 1896, denying the defendant’s motion for a new trial, made upon the minutes. ;' ■ - - . ' The…

Appeal by Edward D. O’Brien and another, as receivers of The Moffett, Hodgkins & Clarke Company, from an order and judgment of the Supreme Court, entered in the office of the clerk of the county of Columbia on the 12th- day of November, 1896, confirming the report of á referee, made after a sale under a judgment of foreclosure, as to the distribution of the proceeds of the sale, and of the securities to be issued by the corporation to be formed by the purchasers, pursuant to…

• Appeal by the plaintiff, Eleanor Moore, and by Borden D. Smith, as receiver of the property of Pearl Empie, from an order of the county judge of Eulton county, entered in the office of the clerk of the county of Fulton on the 23d ,day of February, 189 7,. vacating an. 'order entered in said clerk’s office on the 30th day of March, 1896,. appointing Borden D. Smith receiver of the property of Pearl Empie, a judgment debtor. .

<p>Appeal by the defendant, The New York Central and Hudson ■ River Railroad Company, from a judgment of the Supreme Court ' in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 31st day of December, 1896, upon the verdict of a jury, and also from an order bearing date the 19th day of December 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action Was brought to recover the damages resulting from the death of the plaintiff’s intestate, which was alleged to have been caused by the negligence of the defendant.</p>

Appeal by the defendant, Theodore Stevenson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 17th day of August, 1896, upon the report of a referee.' The. plaintiff brought its action upon several promissory notes' signed by the defendant, payable to its order, aggregating the sum of $1,909.01.. •■ ■ . - The defendant in its answer, after denying any indebtedness to the plaintiff upon said…

Appeal by William S. Van Brocklin, as executor, etc., of Mathias Van Brocklin, deceased, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the' clerk of the county of Montgomery on the 2d day of April, 1897, denying Ms motion to revive and continue the action in the name of William S. Van Brocklin, as executor, etc., of Mathias Van Brocklin, deceased, as plaintiff, in the place óf the said Mathias Van Brocklin, deceased.

<p>Attachment — allegations that a corporation seelcs. the appointment of a receiver, is insolvent, has depleted its stock in trade and that, its president has drawn large sums from it, are not sufficient—fraud is not presumed—personal knowledge .of facts must be inferable from those stated.</p> <p>If the facts stated in an affidavit made to procure an attachment are as consistent with an honest intent as they are with a fraudulent one, fraud may not be inferred from them.</p> <p>The mere averment, in such an affidavit, of facts as upon personal knowledge, is insufficient, unless circumstances are stated from which an inference can be fairly drawn that the affiant has personal knowledge, of the facts which he avers.</p> <p>In an affidavit' on which a warrant of attachment has-been granted on"the ground that a- corporation has assigned, disposed of and secreted its property and is about to do so, with intent to defraud its creditors, such intent is not shown by the allegation that the corporation is insolvent and is, hy means of a pending action, endeavoring to" have a receiver of its property appointed — the effect of</p> <p>■ such appointment being to afford to all the creditors .equal protection.</p> <p>Mor is the alleged fraudulent transfer and secretion of its property established hy the further allegation of the affiant that the directors of the corporation, after consultation, had shipped away unusually large quantities of manufactured material; that the president of the corporation had been drawing out large sums of money for his pérsonal use, and that the corporation was owing about §30,000, and there were but few book accounts.</p> <p>Such an act on the part of the president would be an act in fraud of the corporation and would not necessarily impute fraud to it.</p>

Appeal by the defendants, John F. Moffett 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 Columbia on the 27th day of May, 1896, upon the decision of the court rendered after a trial at the Columbia Trial Term before the court without a jury.

Appeal by George 0. Otis and others from an order - of the Supreme Court, made at the Cliemung Special Term and entered in the office of the clerk of the county of Chemung on the 10th day of February, 1897, adjudging that 'on the 26th day ,of May, 1896, Walter H. Bradley was and had been for more than ten days prior-thereto the owner of certain 150 shares of stock in the Glen Salt Company transferred to him by the Bradley Salt Company and was: entitled to vote upon such…

Appeal by the defendant, William G. Maxwell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county-of Montgomery on the. 24th day of Sep? tember, 1896, upon the. verdict of a jury for $2,006.25 directed by the court.

<p> An action brought to abate a nuisance—it must be brought in the name of the village. </p> <p>The provisions of section 21 of the Public Health Law (Chap. 661, Laws of 1893) as amended by chapter 203 of the Laws of 1895, and of sections 26 and 30 of that law, require that an action brought to abate a nuisance existing within the limits of a village, and to enforce orders and regulations of the village board of health in regard to the nuisance, shall be brought in the name of the village and not in that of the board of health.</p>

<p>Appeal by the plaintiffs, George JD. L. Harisoh and others, from a judgment of the Supreme Court in favor of the defendant, entered in the .office of the clerk" of the county of St. Lawrence on the 23d day of November, 1896, upon the verdict of a jury directed1 ¡by. the court, and also from an order entered in said clerk’s office on the 23d day of November, 1896, denying the plaintiffs’ motion for a new trial made upon the minutes.</p>

<p>Railroad—over what property a city may compel a railroad to construct a street — right to acquire by eminent domain land already appi'opriated to a public use —- additional allowance.</p> <p>Lands acquired by the right of eminent domain for one public use cannot, without special authority from the Legislature, be appropriated by proceedings in invitum to a different public use.</p> <p>The power conferred upon a municipal corporation by the act of 1853 (Chap. 62, §§ 1 and 2) to lay out a highway across the tracks of a railroad without compensation to it, and practically to compel the railroad corporation to do the work itself upon due notice to that effect, does not authorize a city to thus construct a street across lands acquired by a railroad corporation for railroad and terminal facilities, under the Condemnation Law (except a portion conveyed by deed from an owner), of which only the central portion is crossed by the two main tracks of the road, and other tracks leading, to the freight and' engine houses, while at the locality where it is proposed to open the street there is, for at least two-thirds of the distance across the land, no such occupancy of the land as can be brought within the proper meaning of the expression “the track,” the only tracks, either'existing or proposed, being designed not for travel or carriage but to lead to coal trestles or “ a cripple yard.”</p> <p>Where the subject-matter of a controversy is over the right of a city to compel a railroad’ corporation to carry a highway across lands occupied by it, the expense of the work is directly involved, and. the cost of a crossing at grade is. a proper basis for an extra allowance, under section 3253 of the Code of Civil Procedure.</p>

Appeal by the contestants, William P. Potter and others, from a decree of the Surrogate’s Court of Washington county, entered in said Surrogate’s Court on the 28th day of December, 1895, admitting to probate the last will and testament of Orra Potter, deceased.

Appeal.by the defendant, Thé Colonial City Traction Company, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the- office of. the clerk 'of the county of Ulster on the 29th day of January, 1897* continuing pendente Ute an injunction order .made in the action on the 19th day of December* 1896. ■

Appeal by the defendant, Margaret O’Rourke, from a judgment of the County Court of Saratoga county in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 25th day of January, 1897, affirming a judgment of a justice of the peace, and also from an order entered in said clerk’s office on-the 25th day of January, 1897, affirming said judgment of the justice of the peace.

<p>Appeal by the plaintiff, Frederick Hinckel, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 4th day of March, 1897, vacating a preliminary injunction granted in the action.</p> <p>The action was brought to obtain an injunction to restrain the defendant from going upon premises alleged to belong to the plaintiff,, and the ice formed thereon, and from preventing or interfering with the free access by the plaintiff or his agents in and to the premises, and the ice formed thereon.</p>

Appeal by the plaintiff, Albert' Ivins Crol!, from an order of the , Supreme Court, made at the Montgomery Special Term and entered in the office of the cleric of the county of Schenectady on the 5th day of December, 1896, vacating an order appointing a temporary receiver of the defendant in an action brought by the plaintiff, a judgment creditor of the defendant, with executions returned unsatisfied, for the sequestration of the property of the defendant, and for its…

Appeal by the plaintiff, Marie Fógassi, from an order of the Appellate Term of the Supreme Court, entered in the office of- the. clerk of said court on the 25th day of January, 1897, reversing an order of the General Term of the City Court of New York, which affirmed a. judgment of the' City Court of New York, entered in the office, of the cleric of said court on-the. 10th day of June, 1896, upon the verdict of a jury.

Appeal by the defendant, Rebecca Kalischer, as executrix,, etc., of Adolph S. Kalischer, deceased, from an' order of the Supreme Court, made at the Hew . York Special'Term and entered in the office of the- clerk of. the county of New York on the 16th day of' February, 1897, substituting said Rebecca Kalischer, as executrix, etc., of Adolph S. Kalischer, deceased, as.a defendant hérein, in place of said Adolph S- Kalischer. , '

Appeal by the plaintiff, Joseph A. Knox, from an order of the Supreme Court, made at the Rew York. Trial Term and entered in the office of the clerk of the county of Rew York on the 17th day of March, 1897, denying the plaintiff’s motion for a preference.

<p>Appeal by the plaintiff, Margaretha Mayer, as administratrix, etc., of Frank Mayer, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in the office, of the clerk of the county of New York on the 27th day of November, 1896, denying her motion to restore the cause' to the preferred calendar of the court.</p>

Appeal by the defendant, Ferdinand McKeige, from a judgment ■of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of November, 1896, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 16th day of November, 1896, denying the defendant’s motion for a new trial.

Certiorari issued out of the Supreme Court and attested on the 11th day of December, 1895, directed to Theodore Roosevelt and others, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in reference to the removal of the relator from his position as a member of the police force of the police department of the…

Appeal by the plaintiff, Adeline S. Matthews, and by the defendant Ethel Shew,, by her guardian ad litem, Schuyler 0. Carlton, from a judgment of the Supreme Court,- entered in the office of the’ clerk of the county of Hew York on the 18th day of December, 1896, upon the decision of the court rendered after a trial at the Hew York Special Term construing the will of Albert P. Stur-te-vant, deceased.' ' ■

<p>Appeal by the plaintiff, Charles F. Gall, 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 5th day of February, 1897, upon the dismissal of the complaint directed by the court, after a trial before the court and - a jury; also, from an order entered in said clerk’s office as of the 25th day of January, 1897, denying the plaintiff’s motion for a new trial, and also from an order entered in said clerk’s office as of the 25th day of January, 1897, granting the defendant an extra allowance of $1,000.</p>

<p>Appeal by the plaintiff, Peter Farrell, from-a'decree, and 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 31st day of December, 1896, upon the "decision of the court rendered after-a trial-at the New York Special Term-dismissing the complaint, upon the merits. ■ .. .</p>

Appeal by the plaintiff, Charles A. Furbush, from an order of the Supreme Court, made at the Hew York Special. Term and entered in the office of the clerk of the county of Hew York on the 3d day of February, 1897, setting aside the service of the summons, dismissing the complaint against the defendant Hye, and vacating a warrant of attachment granted against him in the action.

Appeal by the plaintiff, Charles A. Furbush, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of February, 1897, setting aside the service of the summons and dismissing the complaint against the defendant Clarkson.

Appeal by the plaintiff, The American Credit Indemnity Com- ■ pany, 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, 1897, granting the defendant’s motion for a bill of particulars.

Appeal by the defendant, Robert' B. Carpenter, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 30th day of January,. 1897, upon the report of a referee. •

Appeal by the. plaintiff, John Ferguson, from a judgment of the Supreme Court in favor of the defendants, The Ann Arbor Railroad Company and others, entered in the office of the clerk of the county of New York on the 31st day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and also…

Appeal by John E. Jacobs, receiver of James Chambers, Limited, from an order of the Supreme Court, made at the Hew Ybrk Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of December,. 1896, directing him to pay the petitioner the proceeds of sale of certain goods.

- Appeal by the plaintiff, Frances M. Pierce, from an order, of the Supreme Oourt, made at the Hew York Special Term and entered • in the office of the clerk of the county of Hew York on the '22d day of December, 1896, denying her motion to punish David J. Lees, receiver, as for a contempt in failing to obey the directions contained in a certain judgment.

Appeal by the plaintiff, Leonora M. O’Rourke, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of January, 1897, upon the dismissal of the complaint directed by the court after a trial before the court and a, jury.

Appeal by the plaintiff, Isabella S. Marbury, as administratrix, etc., of Andros B. Stone, deceased, and by the defendant William D. Marvel, from a judgment of the Supreme Court, hearing date the 20th day of April, 1895, and entered, in the office of the clerk of the county of Rew York, upon the report of a referee, dismissing the complaint and confirming the acts and settling the accounts of Greorge F. Stone as trustee.

Appeal by the defendant, the Eden Musee Americain Company,. Limited, from a judgment of the,-Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of December, 1896, upon the report of a referee.

Appeal by the claimant, Louis Cattaberry, 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, 1897,. denying his motion to set aside an order vacating and canceling his notice of lien. '

Appeal by the defendant, Francis 0. Matthiessen, from a judgr ment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 25th day of January, 1897, upon the verdict of a jury rendered by direction of the court.

<p> The status of policyholders in an insolvent life insurance company is to he determined, as of the date at which proceedings core begun for its dissolution. </p> <p>The status of policy-holding claimants against an insolvent life insurance company is to be determined as of the date of its insolvency as fixed by the initiation of proceedings for its dissolution, and consequently a beneficiary cannot enlarge her demand, as it then existed, by presenting a death claim based upon the death of the insured occurring after the period for which premiums have been paid and after a final judgment has been entered dissolving the corporation and appointing a permanent receiver.</p>

Appeal by the defendant,, The New York,. New Haven and Hartford Railroad Company, from a judgment' of the Supreme. ■ Court' in favor of the plaintiff, entered in the office of. the clerk of the county of New York on the Mth day of January, 1897,, upon' ■ the verdict of a jury, and also from an order entered in said clerk’s • office on the 13th day of. January, 1897,. denying , the- defendant’s motion for a new trial made upon the minutes.

<p>'Negligence — res ipsa loquitur-—facts creating, a presumption that a water pipe ■ must have been broken by the defendant.</p> <p>Proof that while workmen, who were the only persons excavating in the vicinity, were searching for a leak in a steam pipe, a water pipe, which was situated above the'steam pipe, and which had been in good condition for years, broke, it being subsequently found that the pipe had a fracture in it which looked “like an open cut,” and that the cellar of an adjoining house was flooded by water which evidently came from1 the street, justifies'the jury in finding that the flooding of the cellar .was occasioned by the manner in which the excavation was made. .</p> <p>Where, in such a case, .a steam .company', the defendant in an- action brought by the- owner of the house to recover damages caused by the flooding of-the cellar, admits that on the day in' question it was making an excavation in the'vicinity of the -plaintiff's premises,' and the plaintiff proves that no" other excavation than the one complained of by him was made in that street on that ■day or -on the day before or the day after it, and that only one set of' men was : at work there, the jury is justified, in-finding that .the steam company made the excavation- in question.in the street. -</p> <p>Where the defendant in such a state of the- case offers no evidence, the maxim res ipsa loquitur applies. ■ .' •</p>

<p>Appeal by the plaintiff, Kora Cross, an infant, by Ann Cross, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kew York on the 8th day of April, 1896, upon the dismissal of the complaint directed by the court after atrial before the court and a jury.</p> <p>This action is brought to recover damages for personal injuries sustained by plaintiff through the falling of a 2>iece of terra cotta ornamentation from the front of a building in West Fourteenth street, caused, as alleged, by the faulty, careless and negligent manner in which the defendant had decorated the front of said building with flags and bunting.</p> <p>On June 3, 1895, the 2daintiff was walking through Fourteenth street, and on passing said building something fell from above and struck her on the head. This, it was shown, was a piece of terra cotta ring, of about a foot in diameter, placed in a lion’s mouth and forming part of a gargoyle on the seventh or eighth story of the building. One Ballington Booth was the owner of the building involved. A contractor named Jeremiah C. Lyons erected the building and did all the work in its construction, and was in possession and control of the building for the purposes a builder requires, it not being fully completed at the time of the accident. Booth and Lyons were originally made parties defendant, but the action was subsequently discontinued as to both of them, and continued against the defendant Roster alone. As to him, it appears that prior to the accident he was employed by Booth to decorate the front of the building 'with flags and bunting, which he did and com-2Dleted his work, and left the premises on June first, which was Saturday, two days before the accident. Between Saturday, June first, and the hour on June third when the accident happened, persons in the employ of the contractor Lyons 2)laced ropes and fastenings over portions of the building covered by the decorations; but whether such ropes and fastenings interfered with the decorations or not is not made clearly to appear. It was not shown that any o£ the ropes or fastenings were attached to the ring which subsequently fell, and there was evidence which tended to show that certain of the decorations were “ flopping all over the building; ” that the bottoms of the flags and bunting were fastened, some loose and flapping, and that one of these large decorations flew up with the breeze and when it came down brought with it this terra Cotta ring, which had been cemented into the lion’s mouth with Portland cement. .</p> <p>Upon these facts the court dismissed the complaint, and it is from the disposition thus made that the appeal is taken.</p>

<p>Pleading — a general denial of the employment or of the value of the services of a real estate agent 'or a. plea of confession and avoidance is necessary to enable the defendant to sfiow that the agent took commissions from both sides — amendment of an answer.</p> <p>Where an answer, interposed to a complaint in an action brought by a real estate agent to recover for services rendered in renting a piece of property denies, in a qualified manner, the employment and performance of the services by the agent, and subsequently .alleges that the agent was to receive but a single commission of one per cent for renting two pieces of property, and does not contain any general denial,- the defendant cannot show, under his answer, that the agent was secretly acting for the' tenants who took the property, and that he was receiving commissions from them upon the same transactions.</p> <p>It seems, that such proof can be made under a general denial.</p> <p>It seems, that the allowance by the trial court of an amendment to an answer setting tip facts which became known to the defendant only a day or two prior to the trial will not be interfered with on appeal, but where the amendment is denied an exception must be taken if the denial is to be reviewed on appeal.</p>

<p>Common carriers —- a general agent cannot modify terms of shipment established by his principals -^evidence of his declarations to that effect to third parties is incompetent— when a customer is put on inquiry as to the authority of the agent. ■</p> <p>Where a common carrier operating a line of steamships between New York and Mobile makes, at its home office' in New York, a rule that its insurance of goods shipped shall be conditional upon a declaration of their value by the shipper, and that this value must also be stamped upon the bills of lading, its general agent at Mobile has no power to waive or modify the terms of shipment. ■ " ■</p> <p>Declarations made, to other shippers, by a general agent as to the terms upon which he would transact shipping business, where such declarations vary from the terms established by his principals, are inadmissible.</p> <p>Where both a shipper and his consignee receive circulars from the main office of a common carrier which state particular terms of shipment, the consignee, is put upon inquiry to determine the extent of the authority of a general agent of the carrier, at the residence of the consignee, to vary, change or set aside such terms of shipment in his favor.</p>

Appeal by the plaintiffs, Justus Heilbronn and another, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 5th day of February, 1897, vacating a warrant of attachment issued in -the action.

<p>Appeal by the defendant, James Mackintosh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of January, 1897, upon the verdict of a jury directed by the court upon the pleadings after a trial at the New York Trial Term.</p>

<p>Appeal by the plaintiff, James Joseph Richards, from a judgment of' the. Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on .the 26th day of May, 1896, upon the "dismissal of the complaint directed by "the court after a trial before the court and a jury, and also from an .order entered in said clerk’s office On the 12th day of June, 1896, denying the plaintiff’s motion for a new trial made upon the minutes. .</p> <p>The action was brought to recover damages for personal injuries sustained by. the plaintiff, while in the employ of the defendant, by reason of the giving way of ¡a scaffold upon which he was working.</p>

<p>Appeal by the judgment debtor, Stanley M. Hatfield, from an ■order of the Supreme Court, made at the Hew York Special. Term' and entered in the office of the clerk of the county of Hew York ■on the 18th day of January, 1897, adjudging him in contempt and fining him the amount of the judgment.</p>

<p>Appeal by the. defendants, James H- English and William H. English, composing the firm or copartnership of James H. English & Son, .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. February,- 1897j continuing an injunction fpmdente Vite. ''</p>

Appeal by the defendant) The Mayor, Aldermen and Commonalty of the city of New York, from a judgment of the Supreme - Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of March, 1897,- upon the verdict of a jury directed by the court, and also from an order entered in said clerk’s office on the 9th day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Henry Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 19 th. day of October, ■ 1896, upon the dismissal' of the complaint directed by the court after a trial before the court and a jury. ■

Appeal by the--plaintiffs, Landon A. Thomas and Frank E. Fleming, composing the firm of Fleming, Thomas & Co., from a judgment of the Supreme Court in favor of the defendants,. entered in.the office of the clerk of the county of Hew .York on the ■ 20tll day of June/1896, upon the decision of. the court rendered' after a trial' at the Hew York Special Term dismissing ■ the complaint upon the merits. '

<p>Appeal by the defendant, Charles H. T. Collis, as commissioner of public works of. the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th. day of February, 1897, granting a peremptory writ of mandamus.</p>

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the-clerk of the county of New York on the 23d day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Leo Joseph Bice, an infant, by Sarah A.. Bice, his guardian ad litem-,'from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew Pork on the 21th day of January, 1891, upon the dismissal of the complaint directed by the court after a .trial before the court and a jury.

Appeal by the defendants, Charles EL T. Collis, individually and as commissioner of public works of the city of Hew York, and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 15th day of January,-1897, granting an injunction pendente lite.

Appeal by the defendant, The Budweiser Brewing Company (Limited), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of January, 1897, upon the verdict of a jury rendered by direction of the court.

<p>Moneys had and received—recovery by the complainant from, the government agent of the overplus of moneys advanced to and not expended by him in extradition proceedings—Penal Code, § 51, applies only to interstate extradition.</p> <p>A party who advances to a duly accredited agent of the United States government, acting under the authority of a commission granted by the President in the execution of a writ of extradition, a sum of money to defray his actual expenses'— the agent promising to return the overplus — may recover of the agent the unexpended balance; as to such balance, the doctrine of voluntary payment can have no application.,</p> <p>Section 51 of the Penal Code, making it a misdemeanor for any officer to ask or receive any compensation for “service rendered or expense incurred in procuring from the Governor of the State a demand upon the executive authority of a State or Territory of the United States, or of a foreign government, for the surrender of a fugitive from justice,” has reference only to interstate extradition, and does not apply to extradition from foreign countries, as the Governor can have no power under an international treaty to make such a demand upon a foreign government.</p>

Appeal by the defendant, The Mercantile Credit Guarantee Company of'New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the Ith day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of March, 1896, denying the defendant’s motion for a new trial.

Certiorari issued out of the Supreme Court, and attested on the 23d day of July, 1896, directed to Stephen Y. R. Cruger and others, commissioners of parks of the city of New York, and William Leary, secretary of the board of parks of said city, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in regard to -the discharge of the relator from the position of regular clerk to the board of parks. •

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes. .

<p>Bonds — interest after maturity — a newspaper notice is an insufficient tender of payment—rate of interest after maturity — agreement to pay a higher rate — when ■ a bank, acting as a sub-collecting agentáis liable to the principal for neglect in collecting.</p> <p>Where the principal of bonds; made payable by their terms at a specific time and place, is not paid, or shown to have been deposited ready for payment on demand, at the time and place agreed upon, interest is recoverable up to the time when tire principal is actually paid.</p> <p>A notice published subsequent, to the date on which the principal was due in three New York newspapers for one week, stating that the principal would he paid at a certain time and place, does not constitute such a tender of payment of the principal as will stop the running of interest' thereon, where some of the bondholders are residents of other States and the notice is not actually brought to their attention.</p> <p>Where a new company, -upon which is imposed the duty of paying the bonds, circulates a notice to the effect that, in consideration of the holders of the bonds forbearing to present them and-enforce their payment until a certain date, the company will pay seven per cent interest until the principal shall be actually paid, and the bondholders are thereby induced to forbear presenting their bonds for payment, they are entitled to interest thereon at that rate.</p> <p>Where bonds and an order for the interest thereon are delivered by the holders thereof to a bank, for transmission as their agent to its correspondent in New York city,' where the bonds are payable, for collection for them and then-account, and the bonds and interest order are transmitted in accordance with' these instructions to such correspondent, the latter becomes the agent of the holders of the bonds, and is liable to them for any neglect to collect the full amount of the-interest order.</p>

Appeal by the defendant, the Fourth Presbyterian Church, Thirty-fourth street, 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 oil the 16th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December. 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of October,. .1896, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Rudolph Loreclt, as executor, etc., of Alexander E. Schnee, deceased, from so much of an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 14th day of September, 1896, as provides that upon a reference the testimony taken before a former referee should stand and be considered in like manner and form as though such testimony had been originally had and taken before the…

Appeal by the defendant, Frederick J. Syme, 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 January, 1897, upon the verdict of a jury rendered by direction of the. court, and also from an order bearing date the 27th day of January, 1897, and entered in said clerk’s office denying the defendant Frederick J. Svme’s motion for a new trial made upon the minutes. .

<p>Appeal by the defendant, Francis Minot, an infant, by George Waddington, his guardian ad Utem, from a judgment of the Supreme Court in favor of the defendants Harriet J. Minot and others, entered in the office of the clerk of the county of New York on the 1st day of March, 1897, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendants, Morris Livingston 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 N ew York on the 3d day of March, 1897, denying their motion for lea veto serve a supplemental answer.

<p>Appeal by the defendant,. Joseph Fleischmah, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of- the clerk of the county of Hew York on the 16th day of March, 189Y, denying, his ■ motion to resettle a prior order, made; by the same justice presiding at said Special Term.</p>

<p> Usu'i'y —refusal to charge when a note had its inception. </p> <p>In an action upon a promissory note to which the defense of usury is interposed, where it appears that the note passed through several hands before '-it finally had a legal inception in passing into the hands of the person who purchased it for the plaintiff, when, if at all, the usurious transaction took place, it is error for the court to refuse to charge, where the evidence upon that subject is uncontradicted, that the note had its inception in that transaction.</p>

.Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the-30th day of December, 1896,. upon the verdict of. a jury, and also from an order entered in said clerk’s office on the 30th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes:

■ Appeal by Samuel T- Duffy, as receiver of Jacob Fishback, a .judgment debtor, 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 March,; 1897, denying his motion to punish Ferdinand E. M. Bullowa for contempt of •court.

Appeal by the defendants, Walter A. Kane and De Lancey A. Kane, as executors, etc,, of Walter Langdon, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, and of .the defendants. Matthew Wilks, as executor,- etc., of- Eliza A. Wilks, deceased, and others, entered in the office of the clerk of the -county of New York on the 1st day of September, 1896, upon the report of a referee.

<p> Dismissal from the Kero York police foi’ce—set aside where the accused has been imisled by the statements of one of the commissioners—return to a certiorari. </p> <p>Where it appears that a police commissioner, before whom alone the testimony upon charges made against a member of the force was given, assured the accused that he would move to strike out the testimony of the two principal witnesses against him and .recommend to the police hoard a dismissal of the charges, and stated that he, therefore, had no desire to hear any more witnesses, and he thereafter neglects, at the meeting of the police hoard, to do as he has promised, or the hoard overrules his recommendation and the accused is dismissed from the force, the action of the hoard should he reversed and the accused he reinstated..</p> <p>Rumsey and Ingraham, JJ., dissented.</p> <p>When, on a return to a writ of certiorari, the record may he supplemented by other proofs of what took place, considered.</p>

Appeal by the defendant,- Edward F. De Lancey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of June, 1896, upon the verdict of a jury, and also from an order .entered in said clerk’s office on the 22d day of September, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal hy A. Edward Woodruff from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of March, 1897, adjudging him guilty of contempt of court, with notice of an intention to bring up for review an order entered in said clerk’s office on the 1st day of February, 1897, directing him to pay a certain sum of money to the sheriff of the county of New York.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of January, 1897, upon the verdict of a jury* and also from an order entered in said clerk’s office on the 6th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence — a car inspector killed by a ear “kicked,” against the car lie was inspecting'—master not liable for repair, of defects arising in the daily use of an appliance—failure for unexplained cause’of a brake to work—burden of proof in the . ' case of a liability for only one of two causes. ■'</p> <p>The master must keep an appliance in good order, and •cannot delegate that duty to another and thus escape resp.onsibility for its violation, but he. is not bound to'repair defects arising in the daily use of appliances for which, proper and suitable materials .are-supplied, which , may be easily remedied by workmen. and; do not require the kelp of skilled mechanics. '</p> <p>Evidence that a car inspector of eight years’ experience, who, without giving the customary notice-, went into a space of- two or three feet between an engine and. - a train, from which it liad just, been uncoupled, and while-' there was crushed between the engine and the train as the latter was suddenly driven forward by two-cars which had-been “kicked” from a yard upon the samé track, and-' whose momentum the brakeman could not check in time owing to the failure of the brakes on- the first car :to work, does not establish -negligence on the part of the railroad company, when it. appears that the colliding ear had been inspected by the proper person before it left the yard ¡'.and the brakes and ' chains had been found to be in good condition, -.as they also proved to be when . tested a few hours after the accident, and it is. uncertain whether the failure of , the brakes was due. to an'accumulation -of. snow or t’o .some. cause intervening after the -car.left the- yard, and ,of which the railroad - company could have no notice. ; ■</p> <p>Where an' accident is occasioned by one of two causes, for óné of which a defendant is' responsible, and for the other of which it is hot responsible, the plaintiff must fail if Ms evidence does not show that the damage was produced by the former cause, or if it is just as probable that it was produced by the one cause, as by the other.</p>

<p>Appeal by the defendant, John R. Bayles, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of-the county of Suffolk on the 17th day of December, 1896, upon the decision of the court rendered after a trial at the Suffolk Trial Term before the court without a jury, the cause haying been submitted upon the pleadings and an agreed statement of facts.</p>

Certiorari issued out of the Supreme Court and attested on the 11th day of February, 1897, directed to The Village of New Rochelle and William H. Matthews and others, constituting the board of health of New Rochelle, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings in relation to ■ the construction of a drain by the board of health and the auditing of the expense thereof and the levying of an…

Appeal by J. Frank Greene, as assignee, etc., of Emma F. Harding and of tire firm of 'Harding & Co., 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 loth day of February, 1897, directing a reference in each of the above-entitled actions, and also from an order made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 23d day of…

Appeal by the defendant, The Westchester Hardwood 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 Westchester on the 27th day of April, 1896, upon the .decision of the court -rendered after a trial at the Westchester Special Term; also from an order granting an injunction in favor of the plaintiff, and also from an order granted on the 2d day of February, 1895, continuing said injunction.