Volume 17 — New York Miscellaneous Reports

<p>Habeas Corpus.</p>

<p>Í. Excise — Liquor tax certificaté — Population to be determined solely by state or federal census. -</p> <p>For the purpose of fixing 'the rate of tax to be paid under subdivision 1 of section- 11 of the act of 1896, the population is to be determined solely by the last state or federal census.</p> <p>2. Same — Bate when population not given by census.</p> <p>If the population of a given locality is not shown by either the last state or federal census, it falls within the provision of the statute of “ ány other place,” and the tax in such case is $100. ■</p>

<p>1. Excise — Liquor Tax Law — Bona fide social clubs need not take out tax certificate.</p> <p>A Bona fide social club, regularly organized for a legitimate purpose, with a limited and selected membership, which, incidentally; furnishes liquor to its members exclusively, upon payment of a sum equal to the price of such liquor and a small addition for the expense of serving it, which sum is paid into the treasury and used for replenishing the stock, is not within the provisions of the. Liquor Tax Law of 1896, and is hot required to take out a certificate.</p> <p>2. Same — Sale or trafficking.</p> <p>• Such a method of furnishing members with liquors is not a sale of or trafficking in liquors within the meaning of section 31 of the act.</p>

Application to revoke and cancel a liquor tax certificate issued to the respondent under the provisions of the Liquor Tax Law, upon the ground that the nearest entrance to the respondent’s premises in which he is engaged in the traffic in liquors is within 200 feet of the nearest entrance to a building or buildings occupied exclusively for a dwelling, and that the respondent upon making his application for a certificate did not file with his statement a consent in writing…

<p>. Motion by a judgment creditor of the defendant for permission to levy upon property which had been -acquired by it subsequent to the execution of the mortgage in suit.</p>

<p>1. County — District attorney's expenses — Claim must be itemized.</p> <p>A general statement of traveling and other expenses in a particular. case, in a district attorney’s account of expenses,- is insufficient. to authorize the board of supervisors. to audit it; the items must be given. '</p> <p>2. Same — Meals and traveling expenses within the county not allow- • . able. ...</p> <p>Expenditures for meals and' traveling expenses incurred within his county by a district attorney cannot be charged to the county.</p>

<p>Motion for an order directing the receiver to deliver to. the receivers of the Union Pacific Railway Company certain bonds and coupons and pay them the proceeds of others which had been ■ disposed of. .</p>

<p>1. Divorce — Decree may be amended as to custody of children.</p> <p>Since the amendment of the Code in 1895, a decree of divorce may be amended in relation to the custody of the children.</p> <p>■8. Same —- Permission to mother .to visit children.</p> <p>Where a mother against whom a divorce has' been rendered has reformed and is leading an irreproachable life, the decree may be amended so as to permit her to visit the children, although they have been taught that she was dead.</p>

<p>Motion to vacate an order for the examination of the defendant Agnes EL Barry, as a witness before trial.</p>

<p>Pleading — Denial of knowledge or. information as to ownership of note. ;</p> <p>The complaint in an action upon a promissory note alleged- a transfer thereof by the payee to the plaintiff, and that plaintiff was the - owner and holder thereof. The answer admitted' the- making and ' delivery of the note and that it had not been paid, and denied any • " knowledge or information sufficient to form a belief as to whether the note had been transferred to plaintiff and whether, he was the owner and holder. Held, that the answer presented an issue as to ownership as to which the plaintiff had the burden of proof, and that judgment could not- ¡be rendered upon the pleadings. .</p>

<p>Adoption — Right of adopted child to inherit.</p> <p>A child duly adopted under chapter 830 of the Laws of 1873, which statute withheld from an adopted child the capacity to inherit from the foster parent, became entitled to so inherit under the amendment of such statute by chapter 703 of the Laws of 1887, such amendment not creating any new .obligation, or imposing any new duty, or attaching any new disability in respect to the previous act of adoption, but amounting simply to an amendment of .the Statutes of Descent and Succession to Real and Personal Property.</p>

<p>• Action to restrain the continuance of certain corporate acts as ultra s vires and void. . .</p>

<p>Costs — Heave to sue in forma pauperis.</p> <p>A motion for leave to sue as a poor person is addressed to the discretion of the court, and its determination will not be interfered with unless there has been an abuse of such discretion.</p>

<p>1. Evidence — Deeds, executed in another state — Acknowledgment.</p> <p>A deed of assignment executed in another state is inadmissible in evidence' where the certificate of acknowledgment-fails to state that the officer taking it was authorized- by law to do so, or that he knew . or had satisfactory evidence that the person making the acknowledgment was the individual described in and who executed the instrument.</p> <p>2. Same — Records.</p> <p>Such an instrument is not a court record and is not governed by the federal statute.</p>

<p>Appeal from judgment in favor of thé plaintiff, entered upon a verdict. -</p>

<p>Contract — Services — Waiver of conditions.</p> <p>A contract between the general agent of an insurance company and a canvasser provided that brokerages should accrue only as the premiums should be paid to the company. A policy procured by the canvasser was delivered to the insured without payment of the premium, and was subsequently returned to the manager by him for change to another kind of policy, which the manager agreed to have done. . On an examination of the insured, however, the manager refused to issue a new policy or return the old one on the ground that he was growing too fast. Held, that the condition in the contract was waived by the agreement to exchange the policy, and by the failure to assert nonpayment as a ground for the subsequent refusal:</p>

<p>1. Attachment — Insurance policy not the subject of, until due,</p> <p>A policy of life insurance is not attachable while there is nothing. due or payable under it, or until the limit has been reached by death or otherwise.</p> <p>3. Same —■ Effect of recovery of judgment.</p> <p>The recovery of judgment and issue of execution does hot make the attachment operative as a lien upon property which was not the subject of attachment. •</p>

<p>Appeal from judgment in favor of the plaintiff.</p>

<p>1, Trial — Waiver of new notice of trial.</p> <p>A plaintiff who amends his complaint in' pursuance of an order permitting it to be done without prejudice to the proceedings had or to the position of the cause on the day calendar is precluded from claiming that a new notice of trial must be served.</p> <p>2. Pleading — Verification of answer.</p> <p>Where the copy of the complaint served does not contain a verification the defendant is entitled to assume that it is a correct copy, and is justified in serving an unverified answer, especially where the plaintiff refuses to attach a verification to the copy complaint served.</p>

<p>Appeal from judgment in favor of plaintiffs and from order denying motion for a new trial.</p>

<p>1. Limitation — Promise.</p> <p>An agreement to pay a certain sum. on account of a note which is barred by the 'Statute of Limitations is in the nature of a settlement and does not revive such note.</p> <p>S3. Same — Acknowledgment.</p> <p>The legal effect- of an acknowledgment of a debt barred by the Statute of Limitations is that of a promise to pay the old debt, which is revived as a consideration for the new .promise; but the new promise, and not the old debt, is the measure of the creditor’s right.</p>

<p>Appeal from order denying a motion to offset costs awarded to defendant on appeal against the judgment.</p>

<p>Appeal from judgment in favor of the plaintiffs, entered upon a verdict, and from order denying motion for a new trial on the ground of improper communication with the jury.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict.</p>

<p>Motion to dismiss the complaint.</p>

<p>Motion on the trial justice’s minutes to set aside the verdict and grant a new trial upon exceptions; also because the verdict is for excessive damages, and is otherwise contrary to the evidence and to the law. . The nature of the action and material facts are stated in the opinion.</p>

<p>Motion by the executors of the surviving plaintiff for leave to continue the action.</p>

<p>1. Habeas corpus — Traverse o£ return.</p> <p>A return to a writ of habeas corpus which states that the petitioner is held on a commitment upon an indictment for a crime may properly be traversed' by an allegation that such indictment is void in that it was found upon no legal evidence.</p> <p>2. Criminal law — Bight of accused to trial.</p> <p>The state has no right to accuse an individual of crime and then hold him and unreasonably delay his trial. A delay of over two months is too long.</p>

<p>Motion for a new trial, on the ground that the verdict is against the weight of the evidence.</p>

Appeal by. the defendant from a judgment of the General Term of the City Court, affirming a judgment for the plaintiff, which was rendered at Trial Term upon a verdict directed by the court. Action by the beneficiary against the insurer, upon a policy of life insurance; the defense litigated being the breach of the insured’s warranty of the truth of-certain answers to material questions propounded in the application upon which the policy was issued.

<p>■ Appeal by defendant from- an affirmance by the City Court, General Term, of a judgment in favor of plaintiff.</p>

Appeal by the plaintiff from an affirmance by the City Court, General Term, of a judgment in favor of the plaintiff entered upon the dismissal of the complaint. ' The action was for goods sold and delivered between March 30 and June 4, 1895, and the answer was a general denial.

Appeal by defendant'from an affirmance by the General Term of the Oity Court of a judgment in favor of the plaintiff, entered on the verdict of a jury for $300 damages, in an action to recover damages for a wrongful discharge upon a contract for. personal services.

<p>Appeal from affirmance by General Term of the City Court of Hew York of a judgment rendered by direction of the court at Trial Term in favor of the plaintiff.</p> <p>Action upon promissory note.</p>

by the General Term of the City Court of a judgment in favor of the plaintiff, entered upon the verdict of a jury, for damages to the plaintiff’s vegetable garden and growing vegetables through the flooding of his land by water flowing upon it from defendant’s premises.

<p>1. Limitation — Statute does not run against residents of other states.</p> <p>The Statute of Limitations does not run against an actual resident of another state who has a place of business in the city of New York.</p> <p>2. Assignment — Intention to transfer governs validity of.</p> <p>An assignment of a chose in action will be held sufficient where the assignor testifies that he intended thereby to transfer his title thereto, as he is thereby estopped from claiming differently, and the debtor is protected from a subsequent action by the assignor.</p> <p>3. Same — A chose in action may be assigned by parol.</p> <p>A debt or claim may be assigned by parol as well as by' writing.</p>

<p>Appeal by defendant from affirmance by the City Court, General Term, of a judgment rendered at Trial Term.</p>

Appeal by the defendants from an affirmance by the General Term of the Oity Court of a judgment in favor of the plaintiff, entered upon a verdict of a jury for $l,787.50 damages, in an action to recover commissions on sales as a compensation under a contract of employment.

<p>Appeal by Abraham Levy from an affirmance by the General Term of the City Court of an order of the Special Term in supple-</p>

<p>Appeal from an order of the General Term of the City Court of New York, dismissing an appeal from an order of Special Term requiring an answer to be made.more definite and certain, on the ground that such order was discretionary and not appealable.</p>

Appeal by the defendants from a judgment of the Second District Court of the city of Dew York, entered upon the verdict of a jury, in favor of the plaintiff, for $175, besides costs.

<p>Appeal by defendants from judgment of the Ninth Judicial District Oourt,</p>

<p>1. Negligence —Railroads.</p> <p>The gripman of á cable car . has a right to assume that a person who is standing on a crosswalk when the front of the car passes will remain. there until the. cat .has passed.</p> <p>2. Same — Contributory — Signals.</p> <p>Failure of the gfipman to sound the gong- does not relieve one about ito -cross the track from the- exercise of proper care.</p> <p>3. Same — Crossing street-car tracks.</p> <p>Plaintiff started to cross street par tracks on a cold night with her head bundled up, and was struck and. knocked down by a car. She testified • that she looked but did not see the car, but the testimony tended to sho-w that the front of the car had passed her,-and that she collided with the middle of the car, Held, that no neglience on the defendant’s párt or freedom from -contributory negligence of plaintiff was shown. .</p>

<p>Appeal by plaintiff from judgment of the Eighth Judicial District Court.</p>

<p>Appeal from judgment of the Fourth District Court, rendered in favor of the defendants upon their counterclaim.</p> <p>Action for the recovery of specific goods received by the defend-. ants as forwarding agents, or for their value, Counterclaim for freight charges incurred.</p>

<p>Action for -trespass.</p>

Motion by the purchaser at foreclosure sale to vacate an order or to limit the duration of an agreement or lease made thereunder and for an order putting him in exclusive possession of the premises.

Action to charge the defendant, as trustee for the benefit of the plaintiffs, with the proceeds of certain merchandise alleged to have belonged to the plaintiffs, hut wrongfully detained by the defendant.

<p>Action upon a policy of insurance upon the life of William I. Negus.</p>

<p>1. Savings banks — Relation to depositors under laws of Connecticut.</p> <p>Under the laws of the state of Connecticut, the relation between a savings bank, and its depositors is that of debtor and creditor.</p> <p>2. - Taxes — Connecticut savings banks.</p> <p>In assessing a Connecticut savings bank upon shares of stock in domestic banks owned by it, the assessors should allow a deduction of its liability to its depositors from its assets.</p>

<p>Arplicatioh' for a peremptory writ of mandamus to compel the reinstatement'of relator to the position of assistant keeper of the Blissville bridge. ■ .. > '</p>

<p>1. Mortgage — Parol evidence admissible to explain.</p> <p>Where a mortgagé given to a bank is conditioned for the payment of whatever indebtedness may be found due from the mortgagor,</p> <p>. “ which indebtedness, if any, was created under circumstances not herein set .forth, but which ’may be shown if this agreement is ever sued upon in a court of law or equity,” parol evidence is admissible to show the nature and extent of the indebtedness referred to.</p> <p>8. Banks — Liability of officer for defalcation.</p> <p>An officer of a bank, who individually and in connivance and con- ■ spiracy with other officers and employees embezzles the funds of. the bank, is liable for tbe entire amount of the deficiency created thereby, and a mortgage given by him for any indebtedness which may be found due from him may be enforced for the entire amount, and is not limited to the amount actually received or taken by him.</p>

<p>Habeas Corpus proceedings.</p>

<p>Motion to discontinue action.</p>

<p>•Action to- determine the rights of the parties in, certain trust property. •</p>

<p>Demurrer to complaint.</p>

<p>Action to restrain the defendant from using a driveway through the rear of its hotel.</p>

<p>Default — Opening — Incompetency of counsel.</p> <p>A default, although intentional, should be opened on terms where it occurred through the ignorance or incompetency of counsel and meritorious grounds for the application are shown.</p>

<p>Judgment — Evidence.</p> <p>In an action upon a judgment rendered by a court of general jurisdiction of another State, where the record shows all the necessary jurisdictional facts, evidence to impeach such record by showing that . defendant was not served- with process and" did not authorize an appearance for him is not admissible under a general denial.</p>

<p>1. Attachment — Affidavit.</p> <p>An affidavit which states the facts constituting the cause of action merely upon information, without expressing a belief therein, and bases a charge of intent to dispose of property with intent to defraud creditors upon the past record of defendant and the fact that he is in prison and in constant communication with his attorney, is insufficient to support an attachment.</p> <p>2. Same — Motion to vacate.</p> <p>On a motion to vacate an attachment on the original papers, -a defect in the proof of jurisdictional facts cannot be supplied by additional affidavits.</p>

<p>:1. Infants — Mortgage.</p> <p>The court has power under section'2348 of the Code to authorize the mortgaging of the estate or other interest in real property belonging' to infants, and a mortgage so authorized will cover- whatever interest the infants- have, whether it is one in possession or a vested future estate.</p> <p>2. Same — Statute of Uses and Trusts.</p> <p>Where the income and profits of land are given to executors in trust, but not the fee thereof, they take no vested interest in the land itself,- and their temporary interest does not prevent, the vesting of remainders of future estates entirely outside of and separate from the trust estate.</p> <p>3. Same —Vested remainder.</p> <p>Where a will gives the use, income and profits of land to the executors in trust for the benefit of infants until their majority, and upon' the termination thereof devises the land to such infants, they take a vested interest in remainder independent of the trust, which the court may authorize to he mortgaged.</p> <p>4. Same — Construction of.</p> <p>Where the orders entered in several proceedings for the mortgaging of infants’ real estate, instituted hy the owners of several farms for the purpose of discharging, an annuity charged thereon, provide for the giving of a joint mortgage on all the-.property and specify the proportion to he borne hy each, and the mortgage given refers to such proceedings but does not contain the limitation, it need not be reformed in' that respect, but the proceedings and mortgage are -to be read and construed together as one instrument.</p>

<p>Demtjrbeb to complaint.</p>

Application by relator for discharge from the House of Eefuge for Women, at Hudson, N. Y., by writ of habeas corpus, upon the ground that her imprisonment in that institution is illegal and void.

<p>This action is brought against the: defendants, as trustees of the Mottville Paper Company, Limited, to recover the amount of certain indebtedness contracted by said corporation to plaintiffs in the' . year 1893 because of the alleged failure to file annual -reports of said corporation during the years 1892, 1893 and 1894. The specific complaint made- against the reports which were filed during said years is that they were verified by the affidavit of the president alone of said company, and not also by the affidavit of One of -the other officers specified in the statute.</p>

<p>Action for separation.</p>

<p>1. Attachment — Concealment to avoid service. •</p> <p>Where a merchant so conceals himself for three months that his foreman, salesmen and employees are unable or unwilling to give any explanation of his continued absence for so long a time from his place of business, or as to his residence or whereabouts to a creditor seeking to find him for the purpose of serving a summons, a case for attachment is made out. ■ . ■ .</p> <p>2. Same — Presumption as to age.</p> <p>The affidavit for an.attachment need- not state that defendant is an adult, as the law presumes he is an adult until the contrary is shown.</p> <p>3. Same — Affidavit. -</p> <p>A conjunctive statement that the defendant conceals himself with . intent to defraud his creditors and to avoid service'of summons is sufficient. ' . .</p>

<p>Corporations — Officers — Salary.</p> <p>The fact-that an officer- of a corporation voted in favor of a contract giving -him a salary for services does not render such contract void, but only voidable at the instance of the corporation, its directors, stockholders or creditors.</p>

<p>Negotiable instruments — Indorser.</p> <p>. As against an indorser the holder of a promissory note must prove . . demand and notice, but by proving the indorser’s promise to pay after . maturity this proof is prima faicie supplied, and if the indorser rebuts by showing laches'as to demand and • notice it is a sufficient rejoinder to show that he had knowledge of such laches when he promised to pay.</p>

<p>Appeal from order denying motion to vacate second order for judgment debtor’s examination.</p>

Appear from so much, of an order as denies the appellant’s motion for a bill of particulars of the names of the persons in whose presence respondent alleges and intends to prove that the alleged false and defamatory utterances mentioned in the complaint were made, or that the complaint be made more definite and certain by so specifying.

<p>Appeal from a judgment entered upon a verdict in. favor of plaintiffs and from an order denying' a motion for a new trial.</p>

<p>Master and servant— Compensation dependent on sales.</p> <p>Where a contract of employment to superintend the manufacture of a particular article provides for compensation at a' certain percentage Of actual sales thereof, the compensation is not dependent upon the continuance of the employment, but the employee is entitled to the percetitage of sales of the article manufactured by him, though made after the termination of the employment.</p>

<p>1. Negligence — Evidence.</p> <p>In an action for personal injuries caused by a collision between a street car and a truck, evidence of the surrounding circumstances is admissible to' show that the failure of the cardriver to sound the bell was negligence. :</p> <p>8. Same — Contributory.</p> <p>It is not contributory negligence, .as matter of law, .for a truck-driver in the city of New York to attempt to cross street-car tracks when a car is twenty feet away.</p>

<p>' ■ Appeal from judgment in favor of the plaintiff, .entered upon • a verdict. -</p>

<p>Appeal from judgment in favor of the plaintiffs, entered upon a verdict, and from order denying a motion for a new trial.</p>

. Appeal from a judgment entered upon a verdict in favor of the plaintiffs, and from an order denying a motion for a new trial!

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from an order denying a motion for a new trial.</p>

„ Appeal by Daniel Lenobiel and Jaco-b Cohen from so much- of an order granting the motion made by Lenobieh and Cohen for leave to intervene asi parties defendant' as requires them to furnish security for coste;

<p>Appeal from a judgment entered o-n a verdict in favor of the plaintiff and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment entered upon a verdict in favor of the defendant, and from an order denying a motion for a new trial.</p>

<p>1. Corporations — Foreign — Corporate existence.</p> <p>Where the laws of the state under which a foreign corporation was organized provide for the continuance of its existence- after-the expiration of the term- Of its" charter for the purpose of collecting debts or claims due to it, its continued existence for that purpose must be recognized by the courts of this state.</p> <p>2. Same — Certificate..</p> <p>The procurement of a certificate pursuant to section 15 of chapter 687, Laws of 1892, is not a condition precedent to the maintenance of an action by a foreign corporation upon a. contract made without . the state or upon one made previous to the enactment of the statute. ■</p> <p>3. Same — Pleading.</p> <p>Procurement of the certificate need net be alleged in the complaint . in an action by a foreign corporation upon a contract made within the state, but the omission to procure it is a matter of defense to be pleaded in the answer. - • ■</p>

<p>Execution — Body, cannot be issued on judgment in action on contract.</p> <p>The complaint alleged an agreement between the parties to divide commissions on sales of real estate, a specified proportion to be paid to plaintiff; that certain sales were made, and that defendant embezzled and converted said proportion to his own use and refused to pay the same to the plaintiff, and judgment was entered on default. Held, that the action was one upon contract, and that an execution against the person could not be issued thereon.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon, a verdict directed by the court. • •</p>

<p>Appeal by .defendant from .judgment for plaintiff,' entered on' verdict, and from order denying motion for new trial..</p>

<p>Pleading — Defenses. ' (</p> <p>A defendant has a right to plead new matter both as a defense and as a counterclaim, provided he pleads them separately, fully stating each in a séparate subdivision of the answer, properly numbered and folioed. . .</p>

•Appeal from direction of verdict for plaintiff, and that exceptions be heard in the first instance at the General Term.

<p>Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

<p>■1. Attachment — Affidavit.</p> <p>. An affidavit stating that defendant had been the owner of two stores; that defendant said she had disposed of one because she was pressed for money, and had given the other to her son for work he had done for her and could not pay any of her creditors anything; that the son had always lived with her, and that within ten days of the sales she had bought large quantities of goods on credit when she was insolvent, sets forth a prima facie cause of attachment on the ground of disposing of property with intent to defraud.</p> <p>3. Same — Grounds of belief.</p> <p>A statement that the deponent’s grounds for belief as to statements made on information and belief were statements made by the defendant and the manager of plaintiff’s assignors, is sufficient.</p> <p>3. Same —Amount due.</p> <p>• Allegations of a sale to defendant of goods of a specified value which he promised to pay; a demand of payment; that no part had been paid and that plaintiff was entitled to.recover from defendant a specified sum over and above all counterclaims, are sufficient to show that the claims are due.</p>

Appeal by defendant from judgment on verdict for plaintiff for the- full amount claimed, and from order denying new trial.

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from order denying motion for-a new trial. ■</p>

<p>Appeal from an order denying a motion for a new trial and from a judgment dismissing the plaintiff’s complaint.</p>

<p>Motion to continue action.</p>

<p>1. Marriage — Annulment — Concealment of birth of illegitimate child.</p> <p>The fact concealed from a husband that the wife before marriage had given birth to an illegitimate child does not, in itself, .constitute such fraud as will authorize an annulment, of the marriage.</p> <p>2. Saíne.</p> <p>Held, as matter of fact in the present case, that plaintiff was, before his marriage to the defendant, apprised of the. fact that she had previously given birth to an illegitimate child.</p>

<p>Evidence — Expert witness.</p> <p>While an expert witness whose attention, has been called to the testimony of a single witness may properly be asked a question based . thereon, the rule is otherwise where it does not appear that he heard the whole of such' testimony, he testifying merely that he heard ■ “ most of. it,” as the jury cannot know iipon what part of such testimony he based his. opinion. .</p> <p>Lant v". Tasines, 16 Mise. Tep. 504, reversed.</p>

The action was brought to recover the sum of $1,026.98, being the amount of interest due upon a judgment, which the defendants were employed to collect, and which they compromised for the principal without the interest, contrary to the plaintiff’s instructions.

. The appeal brings' up for. review the order of reference referring the matters involved upon the merits of the attachment.

Appeal by defendant Emile Brunor from an affirmance by the. General Term of the City Court of an order of the Special Term denying his motion to open a default taken against him on failure to comply with certain terms imposed as a condition qf granting such motion.

<p>Contract — Acceptance of order — Estoppel.</p> <p>An owner of a building who, after agreeing to pay an order In favor of materialmen when the contract is completed, abrogates such contract and enters into a new one with the contractor, cannot set up nonperformance of the first contract as a defense to his liability upon his agreement.</p> <p>Robinson v. Gray, 16 Mise. Rep. 683, affirmed..</p>

<p>Ajkpeal by defendant from affirmance by the City Court, General Term, of a judgment in favor of plaintiff.</p>

<p>Appeal by-plaintiff from affirmance by the Oity Court, General Term, of a judgment, in favor of. the defendant;</p>

<p>Appeal from an affirmance by the General Term of the City Court of a judgment in favor of the plaintiff for $2,158.37.</p> <p>The action' is upon an undertaking on arrest executed by the defendants Thurber and Yeith as bail for Charles A. Swan in an action brought against him by this plaintiff in the City Court for conversion of property covered by a. chattel mortgage.</p>

<p>Appeal in mechanics’ lien case by the- owner and his two sureties on bond given on discharging the lien, from affirmance by the City Court, General Term, of a judgment in favor of the plaintiffs founded ‘on said lien.</p>

<p>Brokers — Agreement to divide- commissions.</p> <p>Plaintiff, being unable to procure a loan for a customer, procured trie assistance-of defendant under an agreement to- divide commissions. No loan having been procured during the time limited by a' contract with the customer, the latter refused to proceed in the matter, but subsequently made á new contract directly with the defendant, under which the; loan was procured. Held, that the agreement ■ to- divide commissions fell with the termination of the first contract, and that plaintiff was not entitled to any part of the commissions on the loan which was .procured. .•</p>

<p>Motion by respondent to strike cause from calendar..</p>

<p>Appeal from a judgment of nonsuit rendered by the District Court, in the city of New York, for the fourth judicial district.</p> <p>Action to recover, as for money had and received by the defendant to her use, all the premiums paid-by the plaintiff upon five certain policies of life insurance which were issued by the defendant and which, as alleged, it severally and wrongfully assumed to ■forfeit for the insured’s nonperformance of a condition subsequent the payment of a subsequently accrued premium at maturity.</p>

<p>1. District Court —• Pleading.</p> <p>The plaintiff in an action in a District Court is not required to allege or prove the residence of either or all of the parties within the judicial district, and a failure to do so is not ground for demurrer.</p> <p>Í2. Same — Jurisdiction.</p> <p>An objection that the action was brought in the wrong district is waived unless taken on the trial.</p>

Appeal by defendants from a judgment of the First District Court for $186.46, in an action brought upon an undertaking on which defendants were sureties given under section 2912 of the Code, section 1323, Consolidation Act, providing as follows: “'If a person not a party to the action claims any property attached which is not reclaimed by the defendant as prescribed in the last section, he may at any time after the seizure and before execution is issued upon a judgment,…

Appeal by defendant from a judgment of the justice of the First District Court, in favor of the plaintiff, for $84.70, damages and costs.

Action by a patron of the defendant’s theatre to recover damages for the loss of an overcoat, the same having been eloigned'from the plaintiff’s box, by some person unknown, pending the performance of the play.

■ Appeal from a judgment or final order of the District Court- in the city of New York for the third judicial district, dismissing the landlords’ petition in summary proceedings to recover the posses- , sio-n of real property after the alleged expiration of the term, .instituted pursuant to the provisions of sections 2231, etc., of the Code of Civil Procedure. ' • ,

<p>Appeal from a judgment of the General Term of the City Court-of Hew York, which affirmed á judgment for the plaintiff rendered at Trial Term of the same court upon a verdict.</p> <p>Action by the payee, against the indorser, upon a promissory note indorsed for the accommodation of the maker.</p>

<p>1. Power of - attorney — Extension of contract.</p> <p>A power of attorney to represent the donor’s, interest' under a speci-: fled contract between.the donor and another is limited to the duration of such Contract, and is not extended- by a subsequent extension of such contract.</p> <p>3. Same — Revocation.</p> <p>Where no consideration is expressed in such power and the donee thereof has no interest in the result "of its execution- other than the compensation which he is to receive, it may be revoked at any time by the donor. ’ - - .</p>

<p>Appeal by plaintiff from judgment of the Fifth District Court in favor of defendant.</p>

Appeal by defendants from a judgment of the justice of the Eight District Court, in favor of the plaintiff, for $55 damages besides costs. The action was for “ damages caused by negligent blasting.”

<p>Guaranty — Delivery. -</p> <p>Defendants president signed an agreement of suretyship, on a. lease to be given by plaintiff, but at the suggestion of its attorney the same - was sent to plaintiff to have certain corrections made. The instrument was retained by plaintiff, who sént' it to his lawyer, who refused to make the corrections'. Held, that there was no delivery of the- ■ agreement..</p>

<p>Contract — Liability of theatrical manager for baggage of member of troupe.</p> <p>Upon the disbandment of defendant’s company the plaintiff failed to tag .his- trunk or to see to the delivery thereof to, the expressman, and upon his arrival at the railroad depot failed to. find it. He thereupon started to go to the baggage car, but was dissuaded by defendant’s contracting agent, who stated that i-f he would go to Washington with the other employes, for whom a combination ticket had been procured, defendant would be responsible for' the trunk. Held, that while defendant was not primarily liable for-the loss of'the trunk, the agreement of the agent was founded on a good consideration and rendered it liable.</p>

<p>Innkeepers — Liability for negligence in delivery of trunk.</p> <p>On leaving the employ of certain boarders at defendant’s' hotel plaintiff left her trunk behind, saying that she would send a certain express for it. Before the expressman arrived defendant’s servants . had delivered it to another expressman who called for it, without inquiry or taking a receipt, as was customary in such cases, and were Unable to tell to whom it was given.' Held, that the -facts showed a failure to exércisei such care as the law imposed upon defendant, and that he was liable for the loss of the trunk.</p>

Appeal by the defendant, from a judgment for the plaintiff which was rendered by the District Court in the city of Hew York for the eighth judicial district upon the verdict'of a jury. Action to recover commissions for the sale of real property.

<p>1. Excise — Liquor Tax Law — Towns in which no license has been previously granted.</p> <p>Where there are no existing licenses in a town, the county treasurer cannot grant certificates in such town until a vote on the question has been taken at a town meeting.</p> <p>3. Same — Character of applicant — Previous conviction cured by pardon.</p> <p>A person who 'was convicted of a felony many years ago, but has received a pardon, is not a convict under the ban of the law, and should not be refused a certificate solely on that ground.</p>

decision q f the county treasurer in refusing, a liquor tax certificate to the relator, who. is a hotePkeeper in the town of Edwards, St. Lawrence county.

<p>1. Constitutional law — Sterling silver..</p> <p>Section 364a, Penal Code, constituting it a misdemeanor to sell, or ' have in possession for sale, an article marked “ sterling ” of “ sterling silver,” etc., unless nine hundred and twenty-five 'one-thousandths of the component parts of the metal of which the "article was manu- . factored are pure silver, is not unconstitutional.</p> <p>2. Indictment — Penal Code, § 364a.</p> <p>An indictment under Section 364á, Penal Code, is not defective because failing to charge guilty knowledge or criminal intent. It is sufficient if the indictment follows the language of the statute de-. fining the crime,'or that words of similar import" are employed.</p> <p>3. Same. • " .</p> <p>An indictment under such section' is, however, fatally 'defective . ■ that fails to allege that the word “ sterling ” indicated and denoted that articles' for the sale or possession of which, the indictment was found were then and there .sterling silver.</p>

<p>Taxes — Assessment — Executors.</p> <p>An assessment against executors- for personal property held and controlled by a trustee in another county under a conveyance from the testator, which provides for its distribution in accordance with the terms of his will, Is without jurisdiction and- void.</p>

This action is brought to settle and determine the rights of plaintiffs in and to certain real estate situate in the city of Syracuse. The above-named defendant Pease has demurred to said complaint upon the grounds: 1. That there is, and at the time of the commencement of this action was, another action pending between the same parties for the same cause of action. 2.

<p>Motion to confirm report of referee in an action to ascertain and set apart property devised in lieu of dower.</p>

<p>Action of ejectment to recover the possession of real property.</p>

<p>- Actios for construction of will;</p>

Action to recover compensation for lighting certain streets in the town of Westchester under a contract made with said town prior'to its consolidation with the city of New York.

. Action to set aside a general assignment and certain bills of sale, mortgage- and transfers, as in- fraud of creditors. ■

<p>Will — Undue influence.</p> <p>By testator’s will certain property was devised to the proponent subject to a mortgage of $5,000 to be given by him to the contestant. Three weeks later a codicil was executed by which the provision for the contestant was cut down to $1,000. It appeared that proponent was a grandson of testator, lived alone with him and managed his farm; that testator was dependent upon him; that proponent was informed of the will shortly after it was made, and thereafter treated testator roughly and threatened to commit suicide and to leave the farm. It also appeared that testator seemed pleased after he made the will, but after making the codicil was gloomy, refused tó take medicine and expressed a desire to die. Held, that the facts showed the exercise of undue influence, by the proponent.</p>

<p>Action for trespass.</p>

<p>Motion for mandamus to compel the striking of relator’s name from the jury list.</p>

On July 1, 1874, plaintiffs’ grantors obtained from the commissioners of the land office of the State of Dew York a grant of certain lands under water at Sing Sing, Dew York. The grant was upon the express condition that within five' years from- the date thereof the grantees appropriate and apply the premises thereby granted to the purposes of commerce by erecting a dock or docks thereon and filling in the same; otherwise the grant should cease, determine and become void.

<p>Action fo-r construction of will.</p>

<p>Application for letters of administration.</p>

<p>Taxes — Reassessment — Review'.</p> <p>Where a reassessment oí the property of a corporation has been made pursuant to an -order of the Court of Appeals, the Supreme Court has power to require the commissioners of taxes to make a return of their proceedings for the purpose of a review, although more than fifteen days has expired since the delivery of the tax books to the board of aldermen.</p>

<p>1. Kings county — District attorney — Salary.</p> <p>Since January 1, 1896, by virtue of chapter 964 of the Laws of 1895, consolidating Kings county with the city of Brooklyn, all liability, including the salaries of the district attorney and his assistants, which were formerly county charges, are debts of the city of Brooklyn, and the money for the payment of the same can only be drawn from the ■ city treasury in the mode prescribed,by the charter.</p> <p>3. Civil service — District attorney.</p> <p>Under the constitutional laws the" district attorney is a county officer, and notwithstanding the fact that the salaries of himself and his assistants are to be paid from the treasury of the city of Brooklyn, they are not, within the intent of the Civil Service Acts, officers of that city, nor are they subject to the civil service regulations applicable to positions under the city government.</p> <p>3. Same.</p> <p>It is not practicable to ascertain the merit and fitness of the assistant district attorney by civil service examination, and his office does not come within the civil service provisions of the Constitution as interpreted in the People ex rel. McClelland v. Roberts, 148 N. Y. 360.</p>

<p>Action to recover certain bonds deposited with defendant as collateral security.</p>

<p>1. Lien.— Monuments — Notice. • ,</p> <p>Service on the lot owner by the lienor- of "a copy of the notice of lien, without notice that it has been filed with the superintendent of the cemetery is not a Compliance with the provision of chapter 543, Laws' 1888. ' •</p> <p>, 3. Same.</p> <p>The notice of filing of the lien which the act requires the superin-, tendent to serve on the lot owner should be in writing and signed by. -the superintendent, and served personally on the lot owner.</p> <p>3. Same — Constitutional law.</p> <p>Chapter 543, Laws 1888, giving a lien for the unpaid purchase price of a monument, authorizes the taking of property without due process of law, and is, therefore, unconstitutional.</p>

Appeal by the defendant from a judgment rendered against her in a Justice’s Court. ' The defendant, who was a married woman, claimed the sale of the lumber in question was made to her husband. . The facts appear in the opinion.

This is an action in replevin. Plaintiff recovered judgment for -the possession of seven tons and 180 cubic feet of hay, and if pos^ session of said chattel is not delivered, that plaintiff recover the value of said chattel, viz., $80.85. A portion of the hay has been used by defendant, and plaintiff refused to accept the balance with compensation for the difference.

<p>Appeal by defendant from affirmance by the City Court, General Term, of a judgment in favor of plaintiff.</p>

Appeal by defendant in both actions from the affirmance, 'by the General Term of the City Court, of orders of the Special Term denying defendant’s motions' to vacate and set aside the service of the… Held: upon the ground that at the time of service he was not a director, nor an officer of the corporation defendant.

Appeal by plaintiff from affirmance by the General Term of the City Court of an order made at Special Term, denying a motion to vacate an order for the physical and oral examination of the plaintiff.

Appeals (1) by the plaintiff, from an order of the City Oanrt of Pew York, at General Term, which affirmed an order vacating the levy attempted to be made under an attachment issued against the property of the defendant, a nonresident, upon certain demands in Ms favor existing against foreign corporations; and (2) by the defendant, from an ■ order, at General Term, which affirmed an¡ order denying Ms motion to vacate a judgment for the plaintiff entered for default in…

<p>Appeal from a judgment of the General Term of the City Court of New York, which affirmed a judgment for the plaintiff rendered at Trial Term upon a verdict in her favor.</p> <p>Action to recover damages for the defendant’s breach of a contract to marry the plaintiff.</p>

Appeal by the defendant from a judgment for the plaintiff which was rendered by. the District Court in the city of New York for the first judicial district.

<p>Appeal by defendants from a judgment of the justice of the First District Court in favor of plaintiff for $212.81, with interest and costs, in an action upon a judgment of a justice of the peace in the state of Ohio.</p>

: Appeal by defendants from a judgment of the justice of the ■Third District Court i|n favor of the plaintiff for $25 in án action-to recover damages for inj.ury to household furniture. ' . ■

Action to recover broker’s commissions for having, as claimed, procured a lessee for certain real property at the defendant’s instance and request.

Appeal by defendant from-an affirmance by the General Term of thé City Court of a judgment in favor of plaintiff, entered upon the verdict of a jury, for $1,345.14, the balance of a deposit with interest.

• Action to recover a balance of the agreed compensation for certain work, labor and services performed by the plaintiff at the defendant’s instance and request. The only defense was an alleged payment by the note of a third person, which was indorsed by the defendant “ without recourse.”

<p>Appeal ■ by defendant from an affirmance by the Oity Court, General Term, of a judgment rendered at Trial Term.</p>

<p>Appeal from a judgment of the General Term of the City Court of. Hew York, which affirmed a judgment for the plaintiffs, rendered at Trial Term, upon a verdict in their favor.</p> <p>Action to recover agreed commissions as brokers for the sale or exchange of the defendant’s real estate. The answer denied the employment, as well as that any sale or exchange was effected through the instrumentality of the plaintiffs.</p>

<p>1. Landlord and tenant — Liability of tenant for overflow of water.</p> <p>The fact of an overflow of water in. the portion of premises in the exclusive possession of the tenant thereof is sufficient prima facie to fix liability against him. for damages caused thereby, in the ab-l sence of some explanation negativing want of care upon his part.</p> <p>2. Same — Duty of tenant.</p> <p>. . it is the duty of a tenant on closing bis premises for the night to use •some means to see that the faucets therein are not left open to flood the floors of the tenants below.</p> <p>3. Same.</p> <p>In an action to recover damages to plaintiff’s goods caused by an overflow of water, the defendant denied that the water came from his portion of the building, and while testifying to the" condition of the faucet connected with a pipe from the tank on the roof, said nothing about an extra supply pipe to his premises, the jamming of which just above plaintiff’s premises stopped the flow of water. It was further shown that two workmen oh his floor were overheard to say that they intended to let the water run so as not to freeze in the pipes, and that the floor of his premises was wet while that of the floor above was not. Held, that a finding in favor of the plaintiff was justified by the evidence.</p>

<p>Appeal by defendant from a judgment of the justice of the First District Oourt in favor of plaintiff for $99 damages, besides costs, in an action for negligence.</p>

<p>1. Master and servant — Fellow servants — Assumption of risk.</p> <p>Servants' of one general master whose services co-operate to the conduct and maintenance of his business, although they may differ in kind, are fellow servants, and each assumes the risk of loss from the other’s careless conduct as an incident, of the employment.</p> <p>2. Same — negligence.</p> <p>A master is only to be held to the exercise of reasonable care to protect his servants, and can not be required to exercise extraordinary caution or to resort to unusual means to avoid an accident.</p> <p>3. Same.</p> <p>Plaintiff’s personal effects were destroyed • by fire in the car used for the lodging of himself and other employees of defendant by the overturning of an oil stpve used to heat the cal’. The stove was knocked over by one of the employees coming in contact with it while walking backward or by a scuffle between him and others. Held, that the injury was caused by the disregard of ordinary care by plaintiff’s fellow servants, and that defendant was not liable because of its failure to secure the stove to the floor.</p>

<p>1. Landlord -and tenant —r Abandonment of premises.</p> <p>A tenant who undertakes to avail himself of the right to abandon the premises under the authority of .chapter 345, -Laws of .1860, must-not only quit, but surrender the premises, to .the landlord. . .</p> <p>2. Same., . '</p> <p>A tenant must exercise his option to abandon within á reasonable ■ . time after discovering the untenantable condition óf the premises'.</p>

Appeal by the plaintiff from a judgment in his favor, rendered by the District Court in the city of New York for the Fifth Judicial District. Action to recover the agreed price of merchandise sold and delivered by the plaintiff’s assignor to the defendant.

<p>Benevolent societies — Forfeiture of benefits. -</p> <p>Under the .provision in the constitution of a benevolent society that a member “ failing to pay his monthly dues and other dues for three months shall be considered in default and in case of illness will not be entitled to sick benefits,” and for expulsion in ease of a continuance of the default after notice, a forfeiture of benefits or expulsion cannot be predicated upon a default in payment of the other dues alone.</p>

<p>Contract — Services — Théatrical agent. . .</p> <p>Plaintiff, who was defendant’s agent, procured an engagement for her at a theatre f.or a period of four months, but subsequently induced the managers thereof to. release her for a period of eight weeks so as to enable her to appear at another theatre, his commissions to be protected by the manager of the latter. Held, that the transfer was procured by his efforts and that he was entitled to commissions on the latter engagement.</p>

Appeal by the plaintiffs from a judgment for the defendant rendered by the District Court in the city of Hew York for the Fourth Judicial District. Action to recover upon the defendant’s alleged agreement with the plaintiffs to pay them one-half of the commissions if they would secure a purchaser for certain real property which the owner had placed with the defendant, as a broker, for the purpose of sale.

<p>Appeal by' defendants, from judgment of the Eleventh District Court. (</p>

<p>Appeal from." the.judgment of the justice of the Eleventh District Court "in favor of the plaintiff for $87.50" and costs,, in an action for work and labor in steainfitting in No. 251 Fifth avenue, in November, 1894.' ■ • ■</p>

<p>Motion for reargument.</p>

Appeal by defendants from a judgment entered in the Hinth District Court, upon the verdict of a jury in favor of plaintiff for $170, as the value of his services as traveling salesman for defendants in January and February, 1896.

Appeals by the defendant from the judgments for the plaintiffs in each of the four aboveentitled actions, rendered by the District Court in the city of New York for the ninth judicial district. Actions for damages for the loss óf personal property by a fire which resulted from the ignition of gas escaping from a meter negligently maintained by the defendant in a defective condition.

<p>1. Judgment — Bill of particulars.</p> <p>Where a bill of particulars of the claim or defense has been furnished, the recovery must be limited to matters set' forth in it.</p> <p>2. Landlord and tenant — Failure to repair.</p> <p>Where the defense -to an action for rent was a counterclaim for damages for failure of the landlord to repair, and the bill of particulars thereof did not include any injury to the value of the use of the premises, and there is no evidence as to the amount of such injury, it is error for the court to find that the difference in the value of such use is the amount of the rent or any other sum.</p>

Appeal by defendant from a judgment of the justice of the Second District Court; in favor of plaintiff, for $50, besides costs, in an action to recover for services in examining title to premises No. 17 West One Hundred and Second street, at the request of defendant. ■

<p>Appeal by defendant from judgment of the Eighth District Court.</p>

<p>Usury — Mortgage.</p> <p>A mortgage upon defendant’s property being about to be foreclosed plaintiff took an assignment thereof and agreed to extend it for , another year. At the time of taking it he paid its face value less ten per cent., which the defendant paid to the mortgagee. Held,, that the transaction was not usurious.</p>

Action against a tenant to recover the amount of an assessment levied upon the reversion in proceedings for street widening.

<p>Mortgage — Deficiency — Liability of one not a .party to the instrument.</p> <p>An associate and agent of the defendant purchased certain land of plaintiff, taking title in his own name and giving back his individual notes and a mortgage and a declaration of trust which stated ■the' interests of the associates in the land and their respective liability on the mortgage. The mortgage contained no covenant for payment.</p> <p>• ' Held, that no covenant on defendant’s part was to be implied and that she could not be held liable, under the circumstances, for a . deficiency arising on a foreclosure of the mortgage.</p>

This action is brought by the plaintiff, an heir-at-law, on a claim which existed originally against the .estate of his intestate.

Application by relator -for a. writ of. mandamus requiring the Board of Trustees of the Village ’ óf. Oohocton forthwith to com vene and remove Frederick Zimmer from the office of street commissioner of said village, and to appoint in his place and stead in said' office said relator. The relator'is a resident of the village of Oohocton, Steuben county, N. T., which, is incorporated under the General Village Act..

<p>Deed — Construction — Easement.</p> <p>The parties hereto, with others, purchased a large tract of land including a hotel, and divided the same into lots, which were conveyed to each by mutual deeds. Each lot contained a portion of a pre-existing lawn, and each of the deeds contained a covenant that no buildings or erections or fences should be built upon the portion used as a lawn, but that it should be kept open for the use and enjoyment of all, and each of the deeds, except that to plaintiff, also gave a right to “ free ingress and' egress and proper right of way to the parties occupying lots or premises on said peninsula westerly of the premises hereby conveyed.” At the time the conveyances were made, plaintiff, to whom the westerly lot was conveyed, had the use of a right of way over that conveyed to defendant, which Was open and. visible and which he continued to use for seven years thereafter, when defendant obstructed the same by building a cottage thereon, and insisted that plaintiff should pass over the portion reserved ás a lawn. Held, untenable; that in view of the covenant in relation to the lawn and the acts of the parties, the plaintiff had a right of way'-as he had been accustomed to use it, and that defendant could not conipel him to change it.</p>

Appeals from judgments rendered in Justice’s Court against the defendants, and in the notices of appeal new trials were demanded. The appeals were transferred from the County Court to this court because the county judge was incapable to act in the action. , | ..

<p>Habeas Corpus proceedings.</p>

<p>• • Application for a writ of mandamus. '</p>

<p>1. Mandamus — Mot granted where material issue is raised.</p> <p>A peremptory, mandamus cannot be granted where the answering '• affidavits raise an issue as to material facts alleged in the petition.</p> <p>2. Elections — Inspectors — Statement.</p> <p>When election inspectors have made and signed the statement required by law, their duties are fully discharged and they become functus officio as a board, and they have no right to reconvene two days later and indorse ballots and attach them to such statement.</p> <p>3. Same — Cannot reject ballots.</p> <p>A canvassing board has no power to- reject ballots which are marked for identification, and a mandamus will not lie to require them to do so.</p>

<p>Action of foreclosure. The facts appear in the opinion.</p>

<p>Action for removal of testamentary trustee.</p>

<p>•Railroads — Injunction against construction — Nuisance.</p> <p>Defendant, which operates a street railroad on ■ West street in the city of New York, Claims the right to lay a spur therefrom to the Christopher street ferry, which will ■ run for 250 feet parallel to plaintiff’s track, which has been in operation for many years. Held,- that such action by defendant would constitute a public nuisance, causing special and peculiar injury to plaintiff; that It would be in violation of section 102 of the Railroad Law, aiid that • plaintiff was entitled to an injunction to restrain it.</p>

<p>1. Corporations — Elections — Eligibility.</p> <p>One who holds the legal title to stock, but has no beneficial interest 'therein, is ineligible, under section 20 of.the General Corporation Law, to election as a director.!</p> <p>Í2. Same — Trustees.</p> <p>A trustee who, in spite of the protests of his co-trustee, votés upon the estate stock in favor of himself as director, thereby disfranchising such stock, is guilty, of a breach of trust, and will not be nermitted, to derive personal profit therefrom.</p>

Demurrer by defendant to plaintiff’s amended complaint upon the following grounds: . ■ • . First, that the said complaint does not. state facts sufficient to constitute a cause of action.

Summary proceedings to remove tenants on the ground that they held over without permission'after expiration of the term.

<p>Statute of frauds — Sale of crop to be grown.</p> <p>An agreement by which one party is to raise a crop of potatoes which the other is to purchase at a future time is not a contract of sale.within the meaning of the statute of frauds.</p>

<p>Appeal — Limitation of time to.</p> <p>An irregularity in the entry of a judgment, of which entry due notice is given, does not prevent the running of the time for appeal.</p>

<p>Attachment — Affidavit. • • !</p> <p>An unqualified averment of facts, of which it is not apparent that the deponent actually had, or from his situation probably had, personal knowledge, is insufficient to sustain an attachment.</p>

¡■'Action to procure an adjudication that an agreement by a beneficiary, in consideration of payment of assessments and support of the insured, to assign an interest in a certificate of insurance, and an instrument executed by the insured requesting the same to be' carried out, were valid and enforcible.

<p>Application by defendant for reargument or for leave to appeal to the Appellate Division.</p>

<p>Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court.</p>

<p>Appeal from order vacating attachment.</p>

<p>Appeal from order dismissing’ complaint.</p>