Volume 17 — New York Supplement

Indictment of Alfred Horton for grand larceny. The trial court sustained defendant’s demurrer to the indictment, and' the people appealed.

<p>Venue in Civil Cases—Change of Place op Tkial.</p> <p>Under Code Civil Proc. § 986, providing that, if a county designated in a complaint as the place of trial is not the proper county, defendant may serve, with or before his answer, a written demand that the place of trial be changed to the proper county, a demand served with an . imended answer is too late.</p>

<p>1. Negotiable Instruments—Bona Fide Holders before Maturity.</p> <p>Promissory notes¡ transferred by the payees to plaintiff, who had succeeded the payees in their business, were again transferred by plaintiff before maturity, and, after being protested for non-payment, were taken up by plaintiff. Held, that plaintiff was not a holder of the notes for value, and that, in an action thereon by plaintiff against the maker, the latter might prove an offset, alleged in his answer, for a breach of the contract out of which the notes arose.</p> <p>2. Appeal—Review—Objections not Raised Below.</p> <p>Objection that an incorporation was not established on a trial will not avail when improper proof of such incorporation was admitted without objection.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by William S. Lawson, Harry A. Day, and Bennet H. Preston against Curtis N. Douglass on an account stated. Judgment for plaintiffs. Defendant appeals.</p>

Action of interpleader by Margaret M. Brennan, as administratrix of Mary H. Jarvis, deceased, against Susan E. Hall and William H. Clark, as trustees under the last will and testament of Washington A. Hall, and Anna B. Cavarly, respecting the proceeds of a bond and mortgage. Sarah A. Jarvis appeals from an order denying her petition to be made a party defendant.

Action by Johannah Hurley against Philip Sehring upon a written lease. At the trial the jury found a verdict for plaintiff. A motion by defendant for a new trial was denied, and judgment for plaintiff was entered on the verdict. From the judgment and the order denying his motion for a new trial defendant appeals.

Action by Charles E. Rycroft against Henry W. Green for libel. Plaintiff appeals from an order denying a motion made by him to vacate a previous order obtained by defendant for the examination of plaintiff to enable defendant to frame his answer.

Petition by Sarah Cain, widow of and legatee under the will of Peter Cain, deceased, to compel Michael Cain and Patrick Booney, executors of decedent, to pay her a certain sum on account of a legacy. Petition granted. The executors appeal.

Action by Otto Heinze, Maurice Lowy, and Hermann Schneider against Oliver W. Buckingham and Leonard Paulson, Jr., to recover for commissions and advances on goods. At the trial, the jury found a verdict for plaintiffs. A motion by defendants for a new trial was denied, and judgment for plaintiffs was entered on the verdict. Prom the judgment and the order denying their motion for a new trial defendants appeal.

Action by Marcus Nathan and Samuel Cohen against Coles Morris, Edward M. Neill, and J. De Lancey Neill, individually, and as executors of J. Josepha Neill, deceased, for a specific performance of a contract to convey real property. On trial by the court without a jury, the complaint was dismissed, and judgment for defendants was entered thereon., From the judgment plaintiffs appeal.

Indictment against James Barker for assault in the second degree. Judgment of conviction of assault in the third degree. Defendant appeals.

Petition by Mary Elizabeth Field and another for the sale of certain interests in remainder in real estate. From an order directing him to complete his purchase the purchaser appeals.

Action by William R. Morgan, Jr., and others, against John Bowes and John Coombs, defendants, to recover damages for injuries to property caused by blasting. From a judgment for plaintiffs, defendants appeal.

Action by Maria W. Groome against Daniel H. Craig and Helena' Craig. From an order reviving the action in the name of Eliza A. Simmons, as executrix of Maria W. Groome, who died pending the action, and from a judgment for the substituted plaintiff, defendants appeal.

Action by John H. Haar against the Consolidated Carson River Dredging Company and another. From an order denying a motion for an injunction and appointment of a receiver, plaintiff appeals.

<p>Negligence of Servant—Action for Damages—Evidence.</p> <p>In an action against a master for injuries inflicted by Ms servant, it appeared that plaintiff, on alighting from a horse-car, was run into by the servant, driving a horse and wagon at great speed. Plaintiff’s testimony, corroborated by a disinterested witness, showed that he was without fault, which evidence was denied only by that of the servant, who testified that he was driving “very slow, ” that his horse was 33 years old, and that plaintiff got off the car suddenly, while it was in motion, and actually “jumped into” the aged horse. Meld, that a judgment for plaintiff should not be disturbed.</p>

<p>1. Carriers—Connecting Lines—Advances.</p> <p>Defendant, a steam-ship company, entered into a bill of lading with other carriers which provided that it should not be liable “for loss or damage on any article or property whatever, by fire or other casualty, while in transit, or while in deposit, or places of transshipment, or at depots or landings at all points of delivery. ” Plaintiff, as the last of five connecting carriers, had paid all charges on a consignment of cotton, and placed it on a wharf preparatory to delivery to defendant, but before such delivery the cotton was destroyed by fire. Meld, in an action by plaintiff to recover freight charges advanced by it, and its own charges, from defendant, that there was no liability upon defendant, under the bill of lading, to pay said advances and charges.</p> <p>8. Same—Evidence of Custom.</p> <p>No liability arose until the cotton was on board defendant’s steamer, in the absence of evidence from which a contract to pay the same from usage or a settled course of dealing between the parties might be implied. 14 N. Y. Supp. 853, reaffirmed.</p>

Action by John Evers, Jr., by guardian, against Jonas Weil and another, to recover damages for personal injuries. From a judgment for plaintiff, defendants appeal.

Case submitted on agreed statement. Action by the mayor, aldermen, and commonalty of the city of Mew York against the Twenty-Third Street Bailway Company.

Action by Frank B. Genin against Samuel K. Schwenk for fraudulent conversion of notes. From an order vacating an order of arrest defendant appeals. For prior report, see 16 N. Y. Supp. 432.

Action by Herman Passavant and others against Herman Cantor and another to set aside an assignment for the benefit of creditors. Judgment for plaintiff. Defendants appeal.

<p>Exceptions from circuit court, New York county.</p> <p>Action by Joseph Brady against William H. Beadleston and another to recover damages for illegal taking of plaintiff’s property in replevin. The court directed a verdict for plaintiff, and defendants moved for a new trial on exceptions directed to be heard in the first instance at general term.</p>

Judicial settlement of the accounts of John Howard Foote, as executor of Henry M. Leavitt, deceased. From certain parts of the surrogate’s decree the executor appeals.

Action by Ruth Torbett, as assignee of Hattie Patterson Brooks and others, against Parke Godwin. On trial before a jury, they found a verdict for plaintiff. A motion by defendant for a new trial was denied, and judgment for plaintiff was entered on the verdict. Defendant appeals from the judgment and the order denying his motion for a new trial.

Action by Jessie Watson against Parke Godwin. On trial before a jury, they found a verdict for plaintiff. A motion by defendant for a new trial was denied, and judgment was entered for plaintiff. Defendant appeals from the judgment and the order denying his motion for a new trial.

<p>Appeal from court of general sessions, Hew York county.</p> <p>Indictment of William F. Dickie for forgery. Defendant appeals from a judgment of conviction.</p>

Action of interpleader by Emily B. Von Hesse, as administratrix with the will annexed of William H. MacKaye, deceased, against Theodora Edith Mac-Kaye, an infant, and Christian Von Hesse, as executor of James MacKaye, deceased, to determine the right to certain bonds. Judgment for defendant MacKaye. Plaintiff appeals.

Action by Robert Herbst against Lionel Hagenaers. From a judgment for defendant, and from an order denying a motion to vacate an award, plaintiff appeals.

Action by Charles Whitlock against William T. Washburn and another, executor, etc., of Benjamin Richardson, deceased, for reformation and spe-' cific execution of a contract of sale of real estate. From a judgment for plaintiff, defendants appeal.

Action by Alfred A. Blair and another against James A. Flack, late sheriff of the city and county of Sew York, for a false return of nulla bona on an execution. From a judgment for plaintiffs, defendant appeals.

Action by Edward 0. Babcock against Millard R. Jones and another to set aside an alleged fraudulent transfer of real and personal property. From an order continuing an injunction, defendants appeal.

Action by Mary A. Manley against Francis H. Leggett, Albert H. Jones, and Lewis Wallace for an injunction to restrain defendants from occupying the sidewalks in front of their premises with trucks, wagons, vehicles, or other like obstructions, and from unreasonably or unnecessarily obstructing the sidewalks by any plank-way, skid, or bridge, and from occupying the roadway in front of plaintiff’s premises, or permitting the same to be occupied by trucks, wagons, or other…

<p>Appeal from special term, New York county.</p> <p>Action by Bernard Lowenstein against Lena Salinger. From an order denying a motion to vacate an attachment defendant appeals.</p>

Exceptions from circuit court, New York county. Action by Roseanna Cassidy against the mayor, aldermen, and commonalty of the city of New York to recover an award for injuries to a leasehold estate in the extension of a street, alleged by plaintiff to have been improperly paid by the city to a person wrongfully in possession of the leasehold, to whom the award was made by the commissioner.

Application by Edward Hauselt and others, executors of Charles Hauselt, deceased, as holders of bonds of the Eastern Carolina Land, Lumber & Manufacturing Company, for the appointment of a new trustee, and for other relief. From an order appointing the trustee, the Eastern Carolina Land, Lumber & Manufacturing Company appeals.

Action by William M. Tebo against Henry Gregory Jordan, Morton Stimpfion Crehore, and Charles Daniel Jordan for compensation for the use of a tug under a charter-party. Verdict and judgment for plaintiff. Defendants appeal.

Action by James L. Hart against Benjamin Richardson, as trustee of the Great Animas Gold & Silver Mining Company, to enforce the liability imposed upon him by law for failure to file an annual report for work, labor, and services rendered such company. On the death of Richardson, after judgment entered by default against him, William T. Washburn and others, as executors, were substituted as defendants. Plaintiff appeals from the order opening the. default.

Case submitted on agreed statement. Controversy between James W. Kelly, as executor of Catherine Casey, deceased, and Ann Casey and Hugh Keegan, executors of Luke Casey, deceased. Judgment for defendants.

Action by John J. Goodrich against John Gillies and others to foreclose an alleged lien on moneys in the hands of the comptroller of the city of New York. Prom a judgment for plaintiff, defendant Gillies appeals.

Petition by Warren B. Sage and others for the removal of Charles E. O’Hara as testamentary trustee under the will of Melancthon L. Seymour, deceased. Petitioners appeal from a decree denying their petition.

Judicial settlement of the accounts of Otis G. Clark, executor of Nicholas S. Tedder, deceased. ■ Ida A. Tedder appeals from the decree of the surrogate disallowing interest on a legacy to her.

Action by Daniel H. Bennett and Hiram C. Bennett against George T. Kellock, individually and as surviving partner of the firm of John H. Draper & Co., and Frances S. Draper. Plaintiffs appeal from a judgment sustaining the demurrer of Frances S. Draper to their complaint.

Case submitted on agreed statement. Action by the people against John C. Wilmerding to recover state auction duties on sales of imported goods. Judgment for plaintiff.

Exceptions from circuit court, New York county. Action by the Continental Insurance Company against the .¿Etna Insurance Company of Hartford, Conn., to recover on a policy of reinsurance. Plaintiff’s exceptions were ordered to be heard in the first instance at general term.

Exceptions from circuit court, New York county. Action by the Continental Insurance Company against the Greenwich Insurance Company on a policy of reinsurance. Plaintiff’s exceptions were ordered to be heard in the first instance at general term.

' Action by Walter L. Kane, Delaneev Astor Kane, and others against the Manhattan Railway Company and another to recover for damages to real estate. On trial by three referees, judgment was rendered for plaintiffs. Defendants appeal.

Exceptions from circuit court, Hew York county. Action by the Continental Insurance Company against the Phenix Insurance Company of Brooklyn. Plaintiff’s exceptions were ordered to be heard in the first instance at general term.

Action by Robert B. Nooney against the New York Elevated Railroad Company and another to recover damages for injuries to easement. From a judgment for plaintiff, defendants appeal.

Action by Agnes Mellwitz against the Manhattan Railway Company to recover for personal injuries alleged to have been caused by defendant’s negligence. From a judgment entered upon a verdict for plaintiff for $250, and from an order denying a motion for a new trial, defendant appeals.

Lawrence county. Application for the settlement of the account of Harrison C. Maine, as executor, etc., of Clark Maine, deceased. Harrison C. Maine appeals from a decree made on such accounting.

Action by Maunsell Van Bensselaer against Edward S. Bull and others to foreclose a mortgage. A motion was made by Thomas C. Higgins and William C. Lester to set aside certain sales to them by the referee under the decree of foreclosure, and to be relieved from their purchase; and from an order denying such motion, and requiring them to complete their purchase, they appealed.

Application by George W. McLean, receiver of taxes in the city of Hew York, for an order committing Walburger Horn, Annie Fennel, and Mary Bouillon, as administrators witli the will annexed of the estate of Felix Horn, for neglect to pay a personal tax assessed against them.

Action by Amos Klock and others against the New York Central & Hudson River Railroad Company to recover damages for stock killed on defendant’s track. Plaintiffs appeal from a judgment of nonsuit.

Action by George Mundorf against the New York Elevated Railroad Company and the Manhattan Railway Company to recover damages for the erection, maintenance, and operation of defendants’ elevated railroad in the street abutting plaintiff’s premises, and for an injunction. Defendants appeal from a judgment entered upon the report of a referee in favor of plaintiff.

<p>Appeal from special term, Hew York county.</p> <p>Action by Ciancimino’s Towing & Transportation Company against Peter ■Ciancimino. From an order imposing punishment for violating an injunction order defendant appeals.</p>

<p>Appeal from special term, Hew York county.</p> <p>■Action by Thomas J. Lewis against Samuel Wilson. From an order continuing an injunction, defendant appeals.</p>

Action for malpractice by Wallace B. Rowe against Isaac H. Lent, a physician. Defendant appeals from a judgment entered upon a verdict for plaintiff for $2,000.

Application by Thomas Commerford Martin for a peremptory writ of mandamus, requiring the W. J. Johnston Company to permit applicant as a stockholder to inspect the books of the company. From an order granting the writ the company appeals.

Appeal'from special term, Hew York county. Action by the Washington Glass Company against Edmund B. Benjamin and another to recover for breach of a contract by defendants to sell glass for plaintiff, and collect and turn over the proceeds. Defendants set up a counter-claim for breach of the same contract by plaintiff. Plaintiff appeals from an order denying leave to discontinue on payment of costs, and from an order denying a motion for a reargument.

Suit by Louis Eickwort against James G. Powers for specific performance. Decree refusing the relief asked, and requiring defendant to repay money paid under the contract, together with plaintiff’s expenses in examining the title, without interest. Both parties appeal.

Action by James Abbott against the Petersburgh Granite Quarrying Company to recover the value of certain reduced capital stock, to which plaintiff claimed to be entitled by agreement. Judgment for plaintiff, and older denying a motion for a new trial. Defendant appeals.

Appeals from special term, Hew York county. Action by Lewis Sanders against Agnes Gordon Soutter and others, executors, Charlotte la Duchesse d’Auxy, and others, to set aside a release .executed by the defendant D’Auxy to the executors, defendants. Judgment for plaintiff. The plaintiff and the defendant executors appeal.

Action by Francis M. Jencks against Edward Kearney, Vincent 0. King, and Annie King, for specific performance of a contract for the sale of real estate. On trial by the court without a jury judgment was rendered for defendants. Plaintiff appeals.

■ Action by William Foerster, Siegfried Berger, and Oscar J. Friedlander against Joseph Gallinger and Samuel Gallinger for goods sold and delivered. From a judgment for plaintiffs, entered on a verdict, and an order denying a motion for a new trial, defendants appeal.

<p>1. Criminal Law—Continuance—Preparation for Trial.</p> <p>A motion íor a continuance, supported by papers containing a mere statement of counsel that they have been unable to get ready, with only a meager statement of facts tending to support such assertion, where it does not appear that counsel could not have been ready by the use of due diligence, is properly denied.</p> <p>3. Competency of Juror$—Previously Formed Opinion.</p> <p>The fact that a person offered as a juror on a trial for manslaughter has read newspaper accounts of the coroner’s inquest, and formed an opinion from such accounts, not knowing that they were derived from the evidence of witnesses under oath, which opinion he states it would take evidence to remove, does not render him incompetent if it also appears that, on the evidence produced, uninfluenced by any opinion'thus acquired, he could determine the issues involved. Greenfield v. People, 74 N. Y. 377; People v. McQuade, 18 N. E. Rep. 156,110 N. Y. 384, distinguished.</p> <p>8. Jury—Challenges.</p> <p>Code Grim. Proc. § 385, requiring that challenges must be taken first by the prosecution and then by the defendant, only applies to challenges in the various classes, —First, to the panel; second, to the juror, for general disqualification; third, for implied bias; fourth, for actual bias; and, fifth, peremptorily; and it does not require the prosecution to exhaust its peremptory challenges before requiring defendant to make any challenge.</p> <p>4. Criminal Law—Evidence—Accomplices.</p> <p>On a trial for manslaughter by procuring an abortion from which the woman died, the fact that a witness, with knowledge of the pregnancy of deceased, went with her to defendant, where it does not appear that she knew that 'deceased was to have an abortion committed, nor that she went for such purpose, does not make her an accomplice.</p> <p>5. Abortion—Necessary Operation—Burden of Proof.</p> <p>Under Pen. Code, § 191, making the commission of an abortion resulting in death manslaughter in the first degree, unless the same was necessary to preserve the life of deceased, the burden of proving the exception is upon the party charged with the crime.</p> <p>6. Instructions—Calling Attention to Evidence.</p> <p>The fact that the court in its charge stated that it would call the attention of the jury to such evidence as it deemed material, and that the court did not present all the" evidence, is no ground for reversal.</p> <p>7. Abortion—Instructions .</p> <p>On a trial for manslaughter, in procuring an abortion resulting in death, it is not error for the court to quote the statute defining the crime, though there was no evidence that defendant had made use of all the means designated therein.</p>

<p>Stay op Proceedings—Condition op Undertaking—Return op Depositions.</p> <p>A surety signed an undertaking for a stay of proceedings in certain actions until the deposition of a witness in Santiago, Chili, could be taken, to be used by defendant in the actions. The undertaking recited that whereas, defendant obtained “ an order in both of said actions, staying the trials thereof until a return of a commission issued to take the testimony of J.,” etc., after which followed an absolute undertaking to pay any judgments which might be procured against defendant in those actions. The order in pursuance of which the undertaking was given provided that the trial of the actions be stayed until the return of the commission. The commission was never returned, and the stay was vacated. Held, in an action on the undertaking, that the recitals of the undertaking and the staying order, considered together, showed that the obligation was intended to be, and was in fact, candi tioned upon the return of the commission, and that the failure of plaintiffs to pro cure a return of the commission relieved defendant of all liability on the undertaking. Inoiíaham, J., dissenting.</p>

Action for conversion by the Phcenix Mills against James A. Miller. Plaintiff appeals from a judgment entered upon the report of a referee in favor o'f defendant. The action was brought to recover for the conversion of shafting, pulleys, steam-pipes, floors, partitions, water-wheels, engine and boiler, and fixtures used in a mill building upon premises owned by defendant.

Action by George F. Yingut against George T. Yingut and others for partition. From an order denying a motion to compel Benjamin P. Fairchild to complete a purchase at a sale made in the cause, plaintiff and defendants both appeal.

Action by Washington H. Taylor against Catherine Taylor and Margaret Barnes. Judgment overruling demurrers to the several answers of defendants. Plaintiff appeals.

Indictment against Henry Jones, Samuel Fisher, and others for misdemeanor. Defendant Fisher was conv-icted, and appeals from the judgment. Pen.

Petition by Michael G. Kuhn for writ of habeas corpus to obtain the release of Josephine Kuhn from the Protestant Episcopal House of Mercy, respondent. From an order for the discharge of the person detained, and from an order overruling a demurrer to petitioner’s traverse of- respondent’s return, respondent appeals.

Action by Frances H. Duelos and Charles H. Benner against Mary S. Benner and Frank M. Bonta individually, and as executors and trustees under the last will and testament of Hiram Benner, deceased, impleaded with others, for the construction of such will. Defendants appeal from a judgment directing the payment of certain funds to plaintiffs.

Action by Harriet H. Vilas and others, as administrators of Samuel F. Vilas, deceased, against Julia A. McBride, David A. McBride, and others, to foreclose a mortgage. Plaintiffs appeal from a judgment for defendants.

<p>Action foe Rent—Duty of Landlord to Eject Trespasser.</p> <p>In an action to recover rent, it appeared that the landlord had leased certain premises to defendants, a portion of which had previously been hired by defendants from a former lessee, who had sublet another portion to one M. After defendants’ term in the entire premises had commenced, M. remained in possession of his portion as a trespasser. Held, that it was not the duty of the landlord to eject M. as a condition precedent to his right to recover rent, he having no contract relation with M., and not having encouraged or assisted him in any way in retaining possession of the premises.</p>

Action by Arthur J. Horgan and others against Jane McKenzie to foreclose a mechanic’s lien. Defendant appeals from a judgment entered upon a report of a referee in favor of plaintiffs.

Action by Mary Monell against Margaret K. Douglass to recover for alleged breach of a covenant against incumbrances. Defendant appeals from a judgment of the general term affirming a judgment of trial term in favor of plaintiff.

<p>1. Trial—Affirmative of Issue.</p> <p>A defendant taking the affirmative upon a trial admits the allegations of the complaint.</p> <p>2. Negotiable Instruments—Acceptance for Accommodation of Drawer.</p> <p>The payee of a draft, who receives it in paymentrof the drawer’s antecedent debt to him, may recover on the same against an acceptor for the accommodation of the drawer.</p> <p>3. Evidence—Competency—Conversation not in Presence of Party.</p> <p>A large room was divided into two by a partition eight or nine feet high, in which a door was open between. Meld, that conversation in one room could not be given in evidence to charge with knowledge of it a person who at the time was in the adjoining room, without proof of the latter’s power or extent of hearing.</p>

Action by William Meigban against George K. Hollister and another to recover for personal injuries alleged to have been caused by defendants’ negligence. Plaintiff appeals from a judgment entered upon a verdict directed ■ for defendants.

Action by Lizzie P. Sanford against Nathan H. Sanford for divorce. From an order granting an additional allowance for the support of children, defendant appeals.

Action by Laura Vassar against the Knickerbocker Ice Company to recover for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff appeals from a judgment entered upon the verdict for defendant, and from an order denying a new trial.

Action by Emma S. A. Gove against Charles H. Stewart and Samuel P. Sharp for personal injuries caused by alleged negligence. Plaintiff obtained a judgment, and execution was issued thereon and returned unsatisfied, after which a personal execution was issued against Charles H. Stewart. Plaintiff appeals from an order vacating and setting aside such execution. * *

Action by Frazier M. Dolbeer against John Stout, in which an attachment was issued. Defendant appeals from an order denying his motion to vacate the attachment.

Action by Frazier M. Dolbeer against John Stout, in which an attach.ment was issued. Defendant appeals from an order denying his motion to vacate the attachment.

Action by Charles Gorham Allen against the Manhattan Railway Company to recover for an injury to plaintiff’s wife, caused by the alleged wrongful act of defendant. Defendant appeals from a judgment entered upon a verdict for plaintiff for $3,000.

Action by the Continental Hational Bank of Boston against Hatlian Klein, Augustus Hoexter, Henry W. Strauss, and Leo W. Hoexter, composing the firm of A. Hoexter & Co., on a promissory note indorsed by such firm. Strauss answered, setting up that he was a special partner. Judgment was entered by default against the others. Plaintiff appeals from a judgment dismissing the complaint as against Strauss.

Action by George D. Bown against Frank Weppner and others. From a judgment for plaintiff entered in Monroe county on the report of a referee defi-ndants appeal.

<p>Appeal from special term, Rensselaer county.</p> <p>Action by Anna S. Carpenter against Hiland Carpenter for divorce. From an order directing a bill of particulars, plaintiff appeals.</p>

Action by Edward Streever against Betsey Birch under the civil damage act. Plaintiff appeals from a judgment dismissing his complaint.

<p>1. Carriers—Injury to Passenger—Contributory Negligence—Evidence.</p> <p>Plaintiff’s intestate was in the habit of returning, every evening, to his home, on defendant’s train. On the evening of his death, during broad daylight, as the train was approaching his home station, at a speed of about 20 to 40 miles an hour, deceased rose from his seat, and went to the rear platform of the car, and when 900 feet distant from the station, either voluntarily stepped from the platform, or was thrown therefrom by the momentum of the train, and killed. Held, that the acts of deceased constituted negligence per se, and that the court properly refused to submit the question of the existence of contributory negligence to the jury.</p> <p>2. Same—Falling ofe Platform—Want of Brakeman.</p> <p>The fact that there was no brakeman on that end of the car to stop deceased, if he attempted to step from the platform, was not negligence on the part of defendant; it being no part of a brakeman’s duty to prevent men from standing on the platform, nor to catch them when they jump off or fall off.</p> <p>3. Premature Announcement of Arrival at Station.</p> <p>The question whether defendant’s brakeman did or did not prematurely announce the arrival of the train at intestate’s station was immaterial, he being familiar with the station, and knowing the fact that the train was accustomed to stop there.</p>

Action by the people of the state of Hew York against the Horth River Bank. Prom an order directing the receiver of the bank to pay to George Manley a certain dividend the receiver appeals.

Action by John Moore against the New York Central & Hudson River Railroad Company for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff appeals from a judgment of nonsuit. Defendant’s tracks cross First street in the city of Troy diagonally.

Action by Henry E. Weed against the Eire Association of Philadelphia on a policy of Are insurance. Defendant appeals from a julgment entered upon a verdict directed for plaintiff. The policy contained a condition providing that it should be void if the property insured “be held in trust or on commission, ór be a leasehold or other interest not amounting to absolute or sole ownership, ” and is not so stated in the policy.

<p>Corporations—Notice to Officers—Contract of Lease.</p> <p>In an action to charge a railroad president as lessee of an hotel belonging to the company, the minutes of a directors’ meeting were introduced, showing an offer by him to lease, and a resolution accepting the same. He claimed, however, that this contract was only provisional, and offered to prove that he had afterwards notified a certain director that he would not take the hotel. Held, that the offer was properly excluded as immaterial, as notice to one director was not notice to the company.</p>

<p>Appeal from circuit court, Ulster county.</p> <p>Action by William H. Townsend against Winslow M. Bell and Arthur E. Bell to enjoin them from polluting a stream. Complaint dismissed. Plaintiff appeals.</p>

Action by Ellen Clark against the Saugerties Savings Bank to recover certain moneys deposited by her, and paid to her husband, as she alleges, without authority from her. Verdict and judgment for plaintiff. Defendant appeals from the judgment and order denying its motion for a new trial.

Action by Nathan Klein against the Continental Insurance Company upon a policy of fire insurance. Defendant appeals from an order denying a motion to discharge a referee. This action was brought upon a policy of insurance issued by the defendant to the plaintiff against loss and damage by fire. Seventeen other actions were brought against that number of insurance companies, all of which had issued policies to the plaintiff.

<p>Foreign Judgment—Judgment Note—Defense to Action.</p> <p>Although a judgment entered in Pennsylvania, under the statutes of that state, upon a judgment note, before its maturity, without service of process upon or appearance of the maker, and which becomes a lien after maturity of the note, is enforceable in New York, the proceedings to enforce it may be resisted by showing that the note was without consideration, and procured by duress.</p>

<p>Appeal from special term, Ulster county.</p> <p>Action by Margaret Kain, administratrix of David Kain, against Patrick Larkin and Maria E. Larkin, to set aside transfers of property. Judgment for plaintiff.</p>

<p>Usury—Purchase of Mortgage and Extension of Time for Payment.</p> <p>Land mortgaged to secure a bond for $20,000 to one, and $10,000 to another, obligee, having been conveyed to' defendant, and foreclosure being threatened, defendant procured plaintiff to purchase the 820,000 interest, which he did for §15,000, and the 810,000 interest was assigned to a third person. Immediately before the assignment, plaintiff agreed to extend the time of payment of the mortgage, and defendant agreed that the whole amount of 820,000 was due, and that there was no defense to its collection, and also made a new bond and a mortgage of the property to plaintiff for the same amount as the originals. Held, that the last transaction was not tainted with usury, but that it was in effect a purchase of the original mortgage, and that the second mortgage was merely collateral to the first.</p>

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action by William Collins against Elisha W. Hydorn and others to set aside conveyances as fraudulent. Judgment for plaintiff. Defendants appeal.</p>

Action by Harriet McDonald against Maria McDonald and others. From an order refusing to compel a receiver to pay over to petitioner, W. G. Maxwell, a surplus remaining in his hands, said petitioner appeals.

<p>Appeal from circuit court, Albany county.</p> <p>Action by Emma Jones against the city of Albany. From a judgment for plaintiff, defendant appeals.</p>

Action by Charles F. Henricüs and another against Charles Englert to recover of the defendant as surety on a bond for the faithful performance of a building contract. There was judgment for defendant, and plaintiffs appeal.

Action by Charles F. Henricus and others against Charles Englert to recover of the defendant as surety upon a bond for the faithful performance of a building contract. Defendant obtained judgment, and thereupon moved for an order requiring Mary M. Henricus and others, who were not parties to the action, to pay the costs awarded to the defendant in his judgment against the plaintiff. The order was granted, and the said Mary M. Henricus and others appeal.

Action to construe a will, brought by Thomas H. Greer, individually and as executor of the last will and testament of Anna L. Greer, deceased, against Thomas Hoag Greer, Albany Guardian Society & Home of the Friendless of Albany, N. Y., the Babies’ Nursery of Albany, N. Y., the Albany City Tract & Missionary Society, the Home for Aged Men of Albany, N. Y., and Alden Chester, as executor of and trustee under the last will and testament of Anna L. Greer, deceased.

<p>1. Deed—Competency of Grantor—Evidence.</p> <p>After a will, executed by the testatrix on the evening before her death, giving most of her estate to defendant, had been rejected by the surrogate on the ground of mental incompetency of the deceased, defendant claimed the entire estate under a deed then first produced, purporting to have been executed by the deceased more than four months before the will, which defendant alleged was delivered to her by the deceased on the morning of the day on which she executed the will. The deceased was 69 years of age, and very feeble, and it appeared that her condition at the time of the alleged delivery of the deed was nearly the same as at the time of the execution of the will. Seld, that a finding that deceased was at that time incompetent to make the alleged gift should be sustained.</p> <p>2. Estoppel—Grantee in Deed of Gift—Claiming under Will.</p> <p>The facts that defendant, having in her possession the deed conveying to her all the property included in the will, did not disclose the deed, but assumed the custody of the property under the will, and employed counsel to maintain it, although very strong evidence to contradict her claim that the deed was so delivered to her, did not absolutely estop her from claiming the property under the deed.</p>

Action by Josephine L. Peyton against the Hew York Elevated Railroad Company and the Manhattan Railway Company for an injunction to restrain the maintenance and operation of defendants’ elevated railroad in the street abutting plaintiff’s premises, and for damages. Defendants appeal from a judgment entered upon the report of a referee in favor of plaintiff.

Petition for probate of the will of Samuel B. Peck, deceased. Frances L. Peck, the widow of said decedent, appeals from a decree admitting the will to probate.

Action by the Magnolia Anti-Friction Metal Company against Samuel Singley to restrain defendant from the violation of certain agreements. Judgment for plaintiff. Defendant appeals.

Action by John D. Cutter and another against Alexander W. Hume and-others to vacate an assignment with preferences. From a judgment dismissing the complaint, plaintiffs appeal.

Action by Francis B. Carpenter against Sheridan Shook and another to recover a royalty on each performance of a play outside of the city of New York. The complaint alleged that more than 300 such performances had been given, but that plaintiff was not able to state the precise number. From a judgment for defendants, and from an order granting an extra allowance for costs, plaintiff appeals.

Action by John Brooks against Robert B. Murray, Frederick W. Huidekoper, Richard Irwin, Lewis Walker, Francis Rawle, Frank Sullivan Smith, Samuel B. Dick, Arthur C. Huidekoper, and the Pittsburgh, Shenango & Lake Erie Railroad Company to set aside an agreement and to restrain the use of certain bonds. Judgment for defendants. Plaintiff appeals.

Action by George T. Rogers and others against James F. Evarts and others to restrain defendants from advising, aiding, and encouraging others to leave plaintiffs’ employment.

Action by the Madison Square Bank against Warham N. Pierce upon a promissory note. Trial by the court on agreed statement of facts. Judgment for plaintiff. Defendant appeals.

Proceedings for the probate of the will of Cornelia L. Shrader, deceased. From a decree admitting the will to probate, and construing it, except as to that part of the decree which adjudged the will to be properly executed and valid, and which admitted it to probate, J. Albert Shrader and Edward V. Shrader, next of kin and heirs at law and legatees named in the will, appeal.

Action by John Maroney and another against Margaret Boyle and Frank W. Davis, impleaded with others. From a judgment entered at special term, dismissing the complaint, plaintiffs appeal.

Exceptions from circuit court, Cayuga county. Action of trespass by Catherine A. Hennesy against Archibald B. Murdock. Plaintiff was nonsuited by direction of the court at the close of her evidence in chief, and moves for a new trial on exceptions, to be heard at the general term in the first instance.

Special proceeding by Felix D. Clossey against Marshall J. Ayers, administrator. From an order at special term allowing plaintiff to discontinue the proceeding on payment only of defendant’s taxable imbursements, together with $10 costs of opposing plaintiff’s motion for such discontinuance, defendant appeals.

Apppeal from judgment on report of referee. Action on contract by the Rochester Printing Company, as assignee of A. M. Purdy, against A. B. Kellogg and another. From a judgment for plaintiff entered on the report of a referee defendants appeal.

Action by Clv ries P. Bowditch, as trustee under the will of Allen Ayrault, deceased, against Miles Ayrault and others, impleaded. Judgment for plaintiff in part. Plaintiff appeals from so much of the judgment as adjudged that there was no estoppel as to the legatees under the will by reason of any accountings had by the trustee. Defendant Sarah Felt appeals from the same part of the judgment.

Action on a promissory note by Baldwin’s Bank of Penn Yan against W. T. Morris and others. Verdict for plaintiff. From an order denying a new trial, defendant Morris appeals.

<p>1. Statute op Frauds—Pleading.</p> <p>The statute of frauds is not available as a defense, unless it is pleaded.</p> <p>2. Same—Waiver.</p> <p>One who receives and examines gdods, and rejects them because they do not conform to the contract, waives the defense, under the statute of frauds, that the contract is not in writing.</p> <p>3. Sale—Action eor Price—Harmless Error—Evidence.</p> <p>Where the sole issue presented by the pleadings in an action for the price of goods which defendants had refused to accept is that the goods did not conform to the sample on which the sale was made, the admission of evidence of the manner in which the shipment was made is not prejudicial to defendants.</p> <p>4. Same—Irrelevant Evidence.</p> <p>In such case, evidence offered by defendants as to how much less the goods shipped were worth than those exhibited in the sample is not pertinent to the issue.</p> <p>5. Same—Price op Similar Goods.</p> <p>In such case, evidence of defendant as to what he paid for other goods of a similar kind, about the time of the rejection of plaintiffs’ shipment, is immaterial.</p> <p>6. Same—Former Transactions.</p> <p>In such case, it is within the discretion of the court to permit questions to be put to defendant on his cross-examination concerning similar difficulties in which his firm has become involved by his rejection of purchases as not up to sample.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by John Langford against William Broadhead and William J. Morse to recover on a contract. Judgment for plaintiff. Defendants appeal.</p>

<p>Statute of Frauds—Sale of Chose in Action—Executory Contract.</p> <p>2 Rev. St. p. 136, § 3, provides that every contract for the sale of any chose in action for the price of §50 or over shall be void unless some memorandum thereof be made in writing, or unless the buyer shall accept and receipt the evidences of the chose in action, or pay some part of the purchase money. Held, where none of the above requirements have been complied with, evidence of a paroi contract for the sale of such a chose is inadmissible in an action by one of the parties against the other to enforce performance by the payment of the purchase money. Truax v. Slater, 86 N. Y. 630, and Brown v. Trust Co., 22 N. E. Rep. 952, 117 N. Y. 273, distinguished.</p>

<p>Appeal from special term, Steuben county.</p> <p>Action by James Littell against George Ellison, executor of Bhoda Hughey, deceased, to recover on an agreement between plaintiff and deceased. Judgment for plaintiff. From an order denying defendant’s motion for a new trial he appeals.</p>

<p>Appeal from court of sessions, Monroe county.</p> <p>Prom a judgment convicting William Bergen of petit larceny, and from an order denying a new' trial, he appeals.</p>

<p>•Appeal from circuit court, Cayuga county.</p> <p>Action by Ira W. Hill against Robert H. Bishop to recover certain penalties. Plaintiff appeals from a judgment dismissing his complaint.</p>

<p>1. Divorce—Adultery—Witnesses.</p> <p>In an action against a husband for divorce on the ground of adultery, it appeared that the parties were living apart, and that for some time before the action was brought defendant had living with him, as the only other member of his household, an unmarried woman of about his age, in the ostensible relation of housekeeper and domestic servant. The only additional evidence tending to support the charge of adultery was the testimony of four men, entire strangers to defendant, who gained access to his house at night under shallow and absurd pretenses. They swore that their visits had no reference to an action for divorce, and did not know that such an action was contemplated. Held, that the referee, if convinced that such witnesses testified falsely as to their pretenses for such visits, had a right to reject the whole of their testimony as unworthy of credit.</p> <p>2. Same—'Weight of Evidence.</p> <p>Where such testimony, so far as it tended to show illicit relations between defendant and such woman, beyond the fact that they occupied defendant’s home, was directly contradicted by him and the woman, it failed to establish the fact of adultery.</p>

<p>Appeal from Cattaraugus county court.</p> <p>Action by David Cornwell, as treasurer, against Charles J. Cog win to recover certain penalties. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>, Action by Pamelia Pangburn against John Crowner. Prom a judgment for plaintiff entered on the report of a referee, defendant appeals.</p>

<p>Negligence—Evidence.</p> <p>Plaintiff, in an action for personal injury, testified that he was hauling coal by team from a “gondola-car” of defendant, from which the coal was shoveled into a wagon by a fellow-workman; and that, pursuant to instructions from his employer to see how much coal there was left in the car, he climbed on the platform of the car, and while there certain moving cars of defendant came in contact with the “gondola, ” resulting in plaintiff’s foot being caught between the bumpers and injured. The man in the car shoveling coal was not shown to have been inconvenienced, nor was it shown that it was necessary for plaintiff to climb on the platform to get the desired information, or that defendant had any reason to suppose he was there. No other witness was called for plaintiff, and there was no evidence showing that the moving cars were brought to their position in any other than the most careful and usual manner. Held, that the jury was not justified in finding for plaintiff.</p>

<p>Appeal from surrogate’s court, Erie county.</p> <p>Proceeding for the settlement of the accounts of Eliza Wesley, executrix of the will of Benjamin Strickland, deceased. The heirs at law and next of kin of deceased appeal from a decree settling the accounts and directing a distribution of the estate in accordance with the provisions of the will.</p>

<p>Appeal from circuit court, Cattaraugus county.</p> <p>Action by Oliver S. Yreeland against Mortimer PT. Pratt, sheriff. Erom a judgment for plaintiff entered on a verdict, and from an order denying a new trial, defendant appeals.</p>

Action by Mary J. Burnett against Charles S. Wright, executor, and another. Judgment dismissing the complaint and denying costs to defendants. Plaintiff appeals from the judgment dismissing the complaint, and defendants appeal from that portion denying costs.

<p>1. Eminent Domain—Compensation—Measure op Damages.</p> <p>In a proceeding by a railroad company to condemn a right of way through defendants’ land, where the damages are largely speculative, and the commissioners have viewed the premises, an award of less than the amount of estimated by petitioner’s witnesses will be affirmed, where no erroneous principle or method of procedure appears to have been adopted.</p> <p>2. Same—Value op Farm Crossing.</p> <p>Where, under the general railroad act, the land-owner is entitled to farm crossings wherever they are needed, his damages when a right of way is taken are less than if the privilege of crossings were denied him, and the commissioners in making their award may so consider it.</p>

<p>Appeal from special term, Chautauqua county.</p> <p>Creditors’ bill by Persons S. Barnard against Honman B. Brown, Mary A. Brown, and others. Judgment for defendants. Plaintiff appeals.</p>

<p>Appeal from special term, Cayuga county.</p> <p>Application for mandamus on the relation of Dennis O’Mara to compel the board of supervisors of Cayuga county to pay for services and materials rendered. Prom an order denying the application relator appeals.</p>

Proceedings on certiorari by the people of the state of New York, on relation of the First National Bank of Franklinville and Jason D. Case, against Charles D. Button and others, assessors of the town of Franklinville, to review an assessment against the property of relators. Order and judgment dismissing the writ. Relators appeal.

Proceeding for the judicial settlement of the accounts of Gilbert M. Vandervort, one of the executors of Thomas Vandervort, deceased. From a decree settling such account Peter Garlock, the other executor, appeals.

Action by Sarah E. Hermans, administratrix, against the FTew York Central & Hudson River Railroad Company for the death of plaintiff’s husband. Plaintiff had judgment for $3,500, from which and an order denying its motion for a new trial, made on the minutes, defendant appeals.

Action by Theresa Wanamaker against the city of Rochester. From a judgment entered on a verdict for plaintiff, and from an order denying defendant’s motion for a new trial made upon the minutes of the court, defendant appeals.

Action by Orin S. Bacon, Jr., against Albert Jacobs and another. From a judgment for plaintiff entered March 3, 1890, and from an order dated December 6,1890, denying a motion for a new trial upon a case and exceptions, defendants appeal.

Action by John J. P. Bead against the Marine Bank of Buffalo. Judgment for plaintiff. Defendant appeals from judgment entered on the verdict, and from an order denying defendant’s motion for a new trial, made upon a case and exceptions.

' Appeal from special term, Monroe- county. Action by David A. Lamming against Norman H. Galusha and others. Defendants appeal from an interlocutory judgment overruling a demurrer to plaintiff’s complaint, filed on the ground that causes of action were improperly united.

Action by Almira Rowland against Leonidas D. West for damages to a freehold by severing certain machinery. From a verdict for defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Allen J. Hastings against the Brooklyn Life Insurance Company. Appeal by the defendant from an order made on a case and exceptions, granting plaintiff’s motion for a new trial, after a verdict for the defendant, rendered under the direction of the court.

Action by Sophia Booth against the Borne, Watertown & Ogdensburgh Terminal Bailroad Company for injury to property. From .a judgment for plaintiff, entered bn the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by John A. Smith against Frederick J. Zeigler. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by John T. Cunningham against John M. Fitzgerald. ‘ Judgment for plaintiff. Defendant appeals.</p>

Exceptions from circuit court, Monroe county. Action by John H. Welch against the New York Central & Hudson River Railroad Company. Verdict for defendant directed by the court. Plaintiff makes a motion for a new trial upon exceptions heard at general term.

Action by John Fahy and another against James Fargo, as president of the American Express Company, for failure to return a draft promptly which was intrusted to defendant for collection. Judgment on the report of a referee awarding plaintiffs nominal damages. Plaintiffs appeal.

<p>Appeal from trial term.</p> <p>Action by Francis H. Boyer against Clark D. Bhinehart. Judgment for plaintiff. Defendant appeals.</p>

Action by Solomon May against the city of Brooklyn for in j uries alleged to have been caused by negligence of defendant. Judgment for plaintiff.

Action by Barbara Mauer, as administratrix of Michael Mauer, deceased, against Robert B. Ferguson, John Bulch, and Louis Mehrmann, for the death of plaintiff’s intestate. Complaint dismissed as to defendant Ferguson, and verdict and judgment thereon for defendants Bulch and Mehrmann. Plaintiff appeals from the judgments and an order denying his motion for a new trial as to defendants Bulch and Mehrmann.

<p>Appeal from judgment on report of referee.</p> <p>Action by Helen E. Porter, assignee, etc., against Alden S. Swan. From a judgment for defendant, plaintiff appeals.</p>

<p>Master and Servant—Injury to Employe—Evidence.'</p> <p>In an action against an elevated railway company for personal injuries, the court properly refused to submit to the jury the question whether or not a scaffolding on which plaintiff was working, erected on defendant's platform, was knocked down by a passing engine, where it appeared that several engines had passed and repassed the scaffolding without touching it, and no evidence was offered to show that the engine alleged to have struck the scaffolding was wider than those which had passed.</p>

Action by George W. Fuller against David S. Tuska. From an order and a judgment of the general term of the city court affirming an interlocutory judgment made at special term overruling a demurrer to the complaint, defendant appeals.

<p>Factors and Brokers—Sale of Goods—Right to Commissions.</p> <p>In an action, by a solicitor o£ orders, to recover commissions, defendants setup a counter-claim for damages, caused by plaintiff taking certain orders without informing the purchasers that the goods were sold “subject to change in the tariff. ” Defendants had accepted the orders, writing such condition thereon, to which the purchasers objected, and offered to return the goods, but defendants allowed the sales to stand. Held, that as the orders were not binding contracts, and defendants had the right to reject them, and had not done so, their counter-claim was properly rejected..</p>

<p>1. Liabilities of Indemnitors—Judgment against Sheriff for Conversion.</p> <p>In an action by a sheriff on an indemnity bond conditioned to secure the sheriff against the demands of third persons claiming certain property levied on under attachment, and to save him harmless from any judgment which such claimants might recover for the value of such property, defendants are precluded by a recovery of judgment against the sheriff for the conversion of the property from setting up any defense, except that of fraudulent collusion, for the purpose of charging the surety.</p> <p>2. Same—Direction to Return Property to Claimant.</p> <p>The facts that the sheriff, after a sale of the portion of the property levied on, sufficient to satisfy the attachment, was directed by defendants to return the residue thereof to the claimants, that he failed to do so, and that the property was shortly thereafter destroyed by fire, could not affect his right to recover, and did not make him chargeable with negligence, since the action against him for conversion, brought prior to the sale, was an election on the part of claimants to vest him with title to the property, after which he could not be required to return nor the claimants to receive the property.</p>

Exceptions from jury term. Action' by Beattie Burt, as administratrix, etc., of Alvin Burt, against Arnold Lustig and others, on an undertaking on appeal. A verdict was directed for plaintiff, and defendants’ exceptions were ordered to be heard in the first instance at general term. On January 19,1885, Frederick A. Baldwin and two others recovered a judgment against Ira E. Doying and Thomas H. Beekman, impleaded with Willet Bronson, for $1,978.36.

Action by Mary T. Constant and others, executors of Samuel S. Constant, deceased, against the University of Eochester and others, to foreclose a mortgage.

<p>Elevated Railways—Obstruction of Light—Uses of Building.</p> <p>Where the structure of an elevated railroad obstructs the light of a building, the facts that the building h^s been used by the tenant for the display of cut glass, and that artificial is better than natural light for that purpose, cannot be considered by the jury in determining the damages to which the owner of the building is entitled for injury to the rental value.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Pottier & Stymus Manufacturing Company against Auguste Noel. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Breach of Marriage Promise—Existing Marriage of Defendant.</p> <p>It is no defense to an action for breach of promise of marriage that defendant was married at the time of the promise, where it does not appear that plaintiff had knowledge of such fact.</p> <p>2. Same—Tender or Demand of Performance.</p> <p>The right to an action for a breach of promise of marriage accrues when the promisee discovers that the promisor is married, and such promisee is not bound to tender or request performance.</p> <p>3. Same—Damages.</p> <p>In an action for breach of promise of marriage a verdict for 85,000 damages will not be set aside as excessive where there is nothing to warrant the belief that the jury were misled or influenced by passion or prejudice.</p>

Action by Patrick W. Kerns against John B. Hagenbuchle for damages for loss of services of plaintiff’s daughter. Verdict and judgment for plaintiff. Defendant appeals from the judgment and order denying a motion for a new trial.

Action by Winfield Waters against Siegmund Harris upon a promissory note made by Albert Hirsch. Plaintiff claimed that defendant was liable as a general partner of the firm of Albert Hirsch. Verdict directed for defendant. Plaintiff appeals from the judgment and order denying new trial.

<p>Appeal from trial term.</p> <p>Action by John Cunningham against the East River Electric Light Company for false imprisonment. Judgment dismissing complaint. Plaintiff appeals.</p>

Action by George T. Crombie and another against Gertrude R. Waldo to recover commissions as real-estate brokers. Defendant appeals from a judgment entered upon a verdict for plaintiffs, and from an order denying a new trial.

Action by Charles H. Loeber against Isaiah L. Eoberts to recover damages alleged to have been caused by defendant’s negligence. Judgment dismissing complaint. Plaintiff appeals.

Action by Prosper Monnet and another against Henry Merz, as survivor, etc., on an account for goods sold as agents. Plaintiffs appeal from so much of the judgment in their favor as reduced the amount of their claim. Motion to dismiss appeal. The action was brought by plaintiffs, as manufacturers in Switzerland, against the defendants, their commission agents in this city, to recover $18,-958.40. The defendants set up various defenses and counter-claims.

Action by Levenia Ehrgott against John S. Forgotston and others to enjoin the foreclosure of a chattel mortgage. Defendant appeals from an order continuing a temporary injunction.

<p>1. Bona Fide Purchasers—Restrictive Covenants—Notice from Record.</p> <p>The recording of a covenant agreement between owners of adjoining lots not to erect buildings thereon within eight feet of the street line is a sufficient notice to a subsequent purchaser.</p> <p>2. Same—Defective Acknowledoment.</p> <p>A defective acknowledgment as to one of the parties to a recorded covenant agreement relating to land will not prevent the recording being considered as notice.</p> <p>8. Costs—Additional Allowance.</p> <p>Under Code Civil Proc. § 3253, subd. 2, providing that “a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved, ” may be given as an extra allowance, an allowance of $250, in an action for an injunction, where there is no evidence of the value of the subject-matter involved, and no recovery beyond costs, while the amount claimed as damages is only $1,000, is erroneous.</p>

Action by Emma C. Morse against V. Moreau Smith, executor, etc., of Emma Herrick, deceased, Helen E. Smith, and Emilie S. Smith, to compel the two last-named defendants to deliver certain personal property to the executor defendant, and to compel the latter to inventory the same as part of his decedent’s estate. From an order for a judgment, andfrom a final judgment, sustaining defendants’ demurrer to the complaint, plaintiff appeals.

Action by Charles A. Cowen, Andrew J. Post, William H. McCord, and George H. Griebel against Margaret Paddock, Allen H. Wood, Nelson Waldron, and Garrit J. Byrne, to foreclose mechanics’ liens. On trial before a referee, the complaint was dismissed as to defendant Paddock, and judgment for said defendant was entered thereon. From the judgment plaintiffs appeal.

Action of libel by Champion Bissell against the Press Publishing Company. Plaintiff appeals from a judgment overruling his demurrer to the second and third partial defenses set forth in the amended answer.

Action by Wilson H. Gardenier against the Oswego Mutual Savings & Aid Association and Edward Kelly. From an order staying all proceedings on the part of plaintiff until the payment to defendant association of costs adjudged in a former action, plaintiff appeals.

<p>Appeal from court of sessions, Miagara county.</p> <p>Stephen Tower was convicted of forgery, and appeals.</p>

Application by John P. Leo for a mandamus to compel John T. Camp, as colonel of the twenty^seeond regiment of the national Guard of the state of Hew York to recognize him as captain of Company I in said regiment. Application denied. Belator appeals.

<p>Mortgages—Rights ot Mortgagee—Erections.</p> <p>The fact that a house erected on mortgaged premises rests on posts, instead of masonry, does not give the builder a right, as against the mortgagee, to remove such house, on the failure of the owner of the premises to pay for the labor and material used, where, at the time of its erection, there was no agreement to that effect between the parties.</p>

Exceptions from circuit court, Monroe county. Action by John Sebastian Smith against the Hew York Central & Hudson River Railroad Company for personal injuries. A nonsuit was directed by the court, and plaintiff moved for a new trial. Ordered to be heard at general term in the first instance.

Action by Erank M. Hayes, receiver of the Eirst national Bank of Auburn, against Kelson Beardsley. Plaintiff appeals from a decision entering judgment for defendant, without a jury, and dismissing the complaint upon the merits.

Action by James 0. Hiscock and another against Polly Fulton and others to charge a legacy on real estate. Judgment for plaintiffs. Defendants, ■ other than Aaron Garrett, executor, appeal.

Action by Elizabeth Wadd against James E. Hazleton and others, executors ■of Albert Hill, deceased. Defendant appeals from judgment for plaintiff, entered on report of a referee.

Action by Charles E. Burns against the Delaware, Lackawanna & WesternBailroad Company. The petition contained three causes of action, and plaintiff obtained a verdict on the first, and was nonsuited on the other two. From an order denying its motion for taxation of plaintiff’s costs, and also-denying its application to tax a bill of costs in its favor against plaintiff, defendant appeals.

Action by George W. Wells against Rufus A. Sibley and others for personal injuries resulting from defendants’ negligence in leaving the door of a man-hole partly open. Verdict and judgment of $200 for plaintiff. Defendants appeal from the judgment, and from an order denying their motion for a new trial.

Action on the relation of William B. Moore, as overseer of the poor, against William E. Beehler. From an order of filiation against him, adjudging him to be the father of a bastard, and ordering him to pay for the support, burial, and medical attendance of such child, to reimburse the town of Parma, and to pay the attorney for the overseer, and enter into an undertaking therefor, defendant appeals.

<p>1. Mortgages—Priority—Findings of Referee.</p> <p>Defendant, in a suit against herself and her husband to foreclose a mortgage executed by them to plaintiff, claimed a lien by virtue of a mortgage executed by the grantee of her husband prior to plaintiff’s mortgage. The. referee found that the deed from her husband to her 'mortgagor was without consideration or delivery, and was recorded by the grantor, with a fraudulent intent, three years after the execution of plaintiff’s mortgage; it was never intended to pass ownership, and possession of the premises was never given thereunder; and that defendant’s mortgage gave her no claim of bona fide purchaser as against plaintiff. Held, that the facts were sufficient to support the conclusion of law that defendant had no lien on the premises superior to plaintiff’s lien.</p> <p>2. Deed—Delivery—Special Findings.</p> <p>Where a referee found, in relation to a certain deed, that it was “never delivered” by the grantor to the grantee, and stated, in response to a request to find in connection with an abstract of the deed in question, that the deed was “executed, acknowledged, and delivered, ” the two findings are not inconsistent, but show an intention to find a delivery as a matter of form, merely, without the effect of a delivery to pass title. '</p>

Action by the First National Bank of Penn Tan against Eli McConnell. Defendant appeals from a judgment of the supreme court in favor of plaintiff entered upon the direction of a verdict at circuit, and also from an order denying defendant’s motion for a new trial.

Action for false imprisonment by Daniel Sullivan against Winfield S. Yew-man, impleaded with Orrin Saekett. Verdict for plaintiff against defendant Yewman, andan order granted dismissing'plaintiff’s complaint as to defendant Saekett. Defendant Yewman appeals from an order setting aside such verdict and order, and granting a new trial as to both defendants.

Exceptions from circuit court, Monroe county. Action by Bridget Ward, as administratrix of Timothy Ward, deceased, against the Rochester Electric Railway Company for damages for negligently causing death of plaintiff’s testator. A nonsuit was entered, and plaintiff’s motion for a new trial directed to be heard at the general term in the first instance.

<p>Appeal from court of quarter sessions, Niagara county.</p> <p>Indictment of Michael Murphy for arson. Verdict and judgment of conviction in the third degree. Defendant appeals.</p>

Action by Wesley Mandeville, as receiver of the property of Henry Beck, in supplementary proceedings against Edward H. Avety, impleaded with others. From a part of a judgment for plaintiff, defendant Avery appeals.

’ Appeal from circuit court, Ontario county. Action by Oren S. Bacon, Jr., against Morris W. Hanna, impleaded with others. Plaintiff appeals from a judgment in favor of the defendant entered by direction of the court dismissing the complaint on the merits.

<p>1. Action—Who mat Sue—Promise for Benefit of Another.</p> <p>Defendant purchased an interest in a copartnership, and, as part of the consideration, he assumed and agreed to pay the rent then due from the firm to the landlord. Held, that the landlord could sue on such promise of defendant to pay the accrued rent. Lawrence v. Fox, 20 N. Y. 268, followed.</p> <p>3. Objections to Evidence—Conclusions of Law.</p> <p>In such case, defendant cannot testify that he did not hold himself out as a partner, as such question calls for a conclusion of law.</p>

Action by Edward Pettingill against the town of Olean for personal injuries. From an order granting plaintiff a new trial defendant appeals. The action was to recover damages for an alleged personal injury claimed to have been sustained by the plaintiff upon a highway in the town of Olean, caused by his being thrown from a wagon, in which he was riding, by reason of one of the wheels of the wagon running into a hole in the highway.

Action by Robert Wyllie and wife against James Palmer, Jr., and another. Plaintiffs appeal from a judgment for defendants dismissing the complaint upon the merits on a nonsuit directed, and from an order denying a motion for a new trial made on the judge’s minutes.

Action' by Theodore Baumler against Frederick P. Ackerman. From an order of the county judge in favor of defendant vacating and setting aside an order in proceedings supplemental to execution, plaintiff appeals.

Action by Pliny T. Sexton against Charles W. Bennett and wife and George W. Bennett. Defendants appeal from an order directing the amendment of orders previously entered.

Action by Homer Knapp against Leo J. Hall. From an order denying defendant’s motion to vacate and set aside an injunction order, defendant appeals.

<p>I</p> <p>Appeal from. Cattaraugus county court.</p> <p>Accounting of Charles E. Gallagher as committee of Hester A. Babcock, a lunatic. From a decree entered therein, committee appeals.</p>

Action by Amy C. Palmer against Eleazer Green, Jr., Broughton W. Green, and Mary Green, to recover a distributive share of the personal estate of Sylvina Green, deceased. Erom a judgment dismissing the complaint plaintiff appeals.

<p>Specific Performance—Verbal Agreement to Convey Land.</p> <p>Where it was verbally agreed between plaintiff and his father that, if plaintiff would enter into possession of the father’s farm and cultivate and improve it as his own, it should belong to him, the title to remain in the father during his life, and at his death to pass to plaintiff by deed or will, and plaintiff complied with his part of the contract, but the father, a few months before his death, conveyed the farm to another son, plaintiff is entitled to compel a conveyance by such grantee to him.</p>

Case submitted on agreed statement. Controversy between John F. Kneller and Mary Kneller on the one part, and Gerhard Lang on the other, submitted without action.

Action by Mary E. Hack against Plinny T. Sexton. From a judgment entered on a verdict for plaintiff and from an order denying a motion for a new trial defendant appeals. The action was brought to recover the purchase price of a farm situated in the town of Macedón, Wayne county, containing about 31 acres, which was conveyed to the defendant by the plaintiff, March 16, 1887.

<p>New Trial—Newly-Discovered Evidence—Motion at Trial Term.</p> <p>On a motion made at trial term under Code Civil Froc. § 999, for a new trial on the judge’s minutes, the court has no power to grant a new trial on the ground of newly-discovered evidence, as section 1002 provides that a motion on such a ground must be made at special term.</p>

<p>Modification of Contract by Parties—Repayment of Loan.</p> <p>Upon a loan of money, the borrower agreed to repay it by furnishing board to the lender, but afterwards compelled the lender to pay board in cash, and to leave the house because of ill treatment. Held, that the loan became payable in money.</p>

<p>1. Pleading—Insufficient Bill of Particulars of Claim—Bemedt of Defendant.</p> <p>Where plaintiffs, in response to defendant’s demand for a bill of particulars of his several causes of actions, omits particulars as to one, defendant’s remedy is to move for a further bill, and not for a dismissal of that cause of action.</p> <p>3. Sale of Goods—Separable Orders.</p> <p>Defendant ordered certain goods of plaintiffs, as follows: “Will you please ship me H. M. A. 100/1, * * *. And if you please you can send me at the same time 50/1, 3, 3, 4, 5, of Colonial. ” Held, that plaintiffs might ship and recover for the goods mentioned in the first, without shipping those mentioned in the second, sentence of the order; but that they could not ship and recover for those mentioned in the second, without also shipping those requested in the first, sentence.</p>

Action by Bobert Fulton against Garret P. Lydecker and others for conversion. At the trial the complaint was dismissed, and judgment for defendants was entered thereon. Plaintiff appeals from the judgment.

<p>Appeal from trial term.</p> <p>Action by Samuel P. Ferry against James Gr. Wilson. From a verdict and judgment for plaintiff, defendant appeals.</p>

Action by Catharine Garrick against Edouard B. Menut for rent. At the trial a verdict for plaintiff was directed by the court, and judgment was entered thereon. Defendant appeals from the judgment.

<p>Appeal from jury term.</p> <p>Action by Elizabeth A. Oulliford against Montgomery Gadd for fraudulent representations. Verdict and judgment for plaintiff. Defendant appeals from the judgment and order denying a motion for a new trial.</p>

<p>Cross-appeals from special term.</p> <p>Action by Julius Bobertson against the National Steam-Ship Company, Limited, for injuries to goods while in course of transportation by defendant. Judgment for plaintiff. Both parties appeal.</p>

Action by Bichard Deeves against the mayor, aldermen, and commonalty of the city of New York to recover an alleged balance due on a contract to erect a building. Defendants appeal from a judgment entered upon a verdict for plaintiff, and from an order denying a motion for a new trial.

Action by Louis J. Jordan against Eugene O’Connor, doing business under the name of George A. Leavitt & Co., and Louis Strassburger, to restrain defendants from selling certain models as part of a collection owned by plaintiff.

<p>Deed—Certificate of Acknowledgment—Curing Defect.</p> <p>The record of a notary’s certificate of acknowledgment of a lost deed failed to show that the grantors were known to tile officer. Meld, that his subsequent testimony that he knew the grantors personally, saw them execute the deed, knew them to be the parties therein described, and that they properly acknowledged the same, cured the defect; and that the deed, being witnessed by the notary, effectually passed title without acknowledgment, and was good between the parties, and the defect did not render the title to the land unmarketable.</p>

<p>Appeal from special term.</p> <p>Action by Robert W. Milbank against Morgan Jones. Defendant appeals from an order denying a motion to set aside a stipulation and for leave to amend the answer.</p>

<p>1. Eminent Domain—Elevated Railways—Damages—Benefits.</p> <p>A referee’s finding of past damage to the fee, amounting to $800, by reason of the operation of the Sixth-Avenue Elevated Railway in front of a business block, is not supported by plaintiff’s testimony that passing trains darken his door, and that he is annoyed by cinders, smoke, and smells therefrom, when his expert testifies that the value of property has increased more rapidly on that block since the building of the road than on the corresponding block on Seventh avenue, and that the operation of the road has made that portion of Sixth avenue more desirable for business purposes. In such case the special benefits will be held to offset the disadvantages.</p> <p>3. Same—Referee’s Findings—Judgment.</p> <p>Where a referee finds past damages in separate amounts caused to two lots, several squares apart, by the operation of an elevated railway, a judgment on his report enjoining the operation of the road in front of one lot only, but requiring payment of the damages to both as a means of avoiding the injunction, is erroneous, but the error may be corrected on appeal, by simply modifying the judgment in respect to the amount to be so paid.</p>

Action by William Palm against the New York, New Haven & Hartford Bailroad Company to recover a penalty for an excessive charge of railroad fare. Judgment for defendant, on trial by the court without a jury. Plaintiff appeals.

Certiorari on the relation of Frank C. Bockell against Charles F. Mac-Lean and others, constituting the board of police commissioners of the city of Hew York, to review their action in removing relator from the police force.

Action by Stephen W. Giles and another against James O. Fargo, president of the Merchants’ Dispatch Transportation Company, for damages to goods shipped by defendant’s line, by reason of its negligence. Verdict and judgment for plaintiffs. Defendant appeals from the judgment and order denying a motion for a new trial.

Actipn by George Southwick against Adolph Bernhard upon a contract of employment. Verdict and judgment for plaintiff. Defendant appeals from the judgment and order denying a motion for a new trial.

Submission on agreed statement. Controversy between Frederick P. Forster and David Scott, submitted without action, for the specific performance of a contract for the sale of real estate. Judgment for plaintiff.

Action by Elkan Blumenthal against the New York Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from maintaining and operating an elevated railroad. Judgment for plaintiff. Defendants appeal.

Action by Bichard Williams and Edward Jones against Daniel Boehan and John T. Martin for,breach of a building contract. Verdict and judgment for plaintiffs, and a new trial denied. Defendants appeal.

Actions by Morgan L. Livingston and Silvia Livingston against the Manhattan Bailway Company and the Metropolitan Elevated Bail way Company, by Silvia Livingston against the same companies, and by Julia Livingston against the same companies, for an injunction, and for damages by reason of the construction, maintenance, and operation of defendants’ elevated railroad in front of plaintiffs’ several premises.

Action by Vincent A. Witcher against Gilbert E. Jones, as treasurer of the New York Times, for libel. Verdict and judgment for plaintiff. Defendant appeals from the judgment, and order denying a motion for a new trial.

<p>Appeal from special term.</p> <p>Application for the settlement of the accounts of the executors, etc., of Nathaniel Gilman. Caroline R. Garczynski appeals from an order denying her motion to vacate the final decree.</p>

<p>Action by Emily Vincent against Ludger 0. Vincent, for divorce. Plaintiff moves for alimony and counsel feesjpendente lite.</p>

<p>Liability of-Parent for Medical Services—Evidence.</p> <p>In an action against a parent for medical services rendered Ms daughters, it appeared that both of the daughters had spoken of defendant as “papa” to a music teacher, who sent him bills for their tuition, which were paid; that the services rendered were necessary; were rendered to the daughters while at a boarding scho.ol; and that defendant had paid a prior bill of plaintiff for like services to them through the treasurer of the school. Held sufficient to show that the persons treated were defendant’s daughters, and that the services in question were impliedly authorized by him.</p>

<p>Mastee and Seevant—Wobk Obdeeed by Sebvant—Liability of Masteb.</p> <p>A person who receives orders from a servant for work after he .has been notified by the master that he will pay for no work except such as is done on his written order, cannot recover for such work against the master; nor will orders afterwards given by the master personally amount to a waiver of such notice.</p>

<p>Appeal from fourth district court.</p> <p>Action by Isaac Rabinowitz and others against Simon Cohen. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from eighth district court.</p> <p>Action by David Mackay, Jr., against Aaron Kahn. From a judgment for plaintiff, defendant appeals.</p>

Appeals from judgment on report of referee. Three actions by Frederick Holler and Henry Holler to foreclose mechanics’ liens,—one against George Schwehn and Filippa Apa and others, the second against said Schwehn and Tomasso Giordano and others, the third against said Schwehn and Michele Tarehini and others. The actions were referred and tried together. Judgments for plaintiffs. Defendant Schwehn appeals.

Action by Richard Flatow against Theodore Van Bremsen. The defend-' ant had demurred to the complaint, and the special term had overruled his demurrer, ordering judgment for the plaintiff, unless defendant answered within 20 days; and an interlocutory judgment to that effect was entered, from which defendant appealed to the general term.

Action by Andrew P. Blake, an infant, by guardian ad litem, against Simon Fox, for damages from alleged negligence of defendant.' Plaintiff resided with his mother in a tenement-house of defendant, where she hired apartments. A dumb-waiter operated between the cellar and the upper stories of the building for the general use of tenants in carrying coal and other things to their rooms. This dumb-waiter was in the custody and control of defendant landlord.

Action by Richard Marston against Mary F. French on an alleged guaranty. Prior to Laws H. Y. 1863, c. 464, contracts within the statute of frauds were required to show their consideration on their faces. The amendment of the Code that year omits that requirement. From a judgment for plaintiff, defendant appeals.

Exceptions from trial term. Action by the health department of the city of New York against the Bector, Church-Wardens, and Vestrymen of Trinity Church to recover a penalty for failing to supply the floors of a tenement-house with Croton water. Verdict was directed for plaintiff, and defendant moves for a new trial on exceptions ordered to be heard in the first instance at the general term.

Action by Christopher Pfluger against John Wilshusen on an alleged agreement for contribution in the payment of a note. From a judgment for plaintiff, defendant appeals.

<p>Trover and Conversion—Weight op Evidence.</p> <p>In an action for the conversion of a safe, there was testimony that defendant had on a particular occasion admitted that he was in possession, or control of possession, of the safe, but defendant denied making such admission, as well as the fact it purported to show. Held, that the evidence was insufficient to justify the reversal of a judgment for defendant.</p>

Action by Daniel H. Wickham and others against Maurice Weil and another on an undertaking for an attachment. From an order sustaining a demurrer to a counter-claim defendants appeal.

A ction by William R. Gilpin against the Baltimore & Ohio Railroad Company.

<p>Landlord and Tenant—Re-entry on Condition Broken—Unlawful Detainer.</p> <p>Where a landlord peaceably enters and resumes possession of leased premises in pursuance of a provision of the lease that he may re-enter in case the lessee should sublet the premises, no action of unlawful detainer can be maintained against him or any person to whom he may thereafter lease the premises, though the former lessee dispute the landlord’s right to re-enter.</p>

<p>1. Release—Procuration by Fraud—Action for Damages—Evidence.</p> <p>On a voluntary dissolution of a partnership between plaintiff and defendant, the latter assigned to plaintiff all of his interest in debts due the concern, in consideration of a general release. The books showed that, among others, two bills were due the firm, and defendant stated that the books showed the exact condition of the accounts of the firm. The fact was that defendant had collected the two bills, and converted the same to his own use, prior to the assignment, without the knowledge of plaintiff. Held, in an action to recover for the fraud, that judgment was properly rendered for plaintiff notwithstanding the release.</p> <p>3. Same—Action at Law—Jurisdiction of District Court.</p> <p>The action in such case, being, not for an accounting between partners, but to recover damages for defendant’s fraud and misrepresentation, is an action at law, and not in equity, so that the district court had jurisdiction of the case.</p>

<p>1. Action to Recover Wages—Damages rob Discharge.</p> <p>In an action by an employe to recover wages, the court cannot render judgment for damages for wrongful discharge.</p> <p>2. Same—Monthly Wages—Recovery ror Part or Month.</p> <p>Where an employe, whose wages are payable at the end of each month, is discharged wrongfully in the middle of a month, he cannot recover, in an action for wages, compensation for the services rendered during the first half of that month, but for that purpose must resort to an action for damages.</p>

<p>Appeal from third district court.</p> <p>Action by Max Grabosski against Lewis Gewerz. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from eleventh district court.</p> <p>Action by Clarence G. Perry against John H. Woodbury. From a judgment for plaintiff, defendant appeals.</p>

Action by Virginia W. Baldwin against Wilhelmina A. Thibaudeau and others, to recover a deposit to secure the covenants of a lease. From a judgment for plaintiff, defendant Thibaudeau appeals.

<p>Appeal from seventh district court.</p> <p>Action by J. Lewis Weinberg against Louis Kram. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from trial term.</p> <p>Action by 'Charles F. Mattlage against the Hew York Elevated Railroad Company and another. From a judgment for plaintiff, defendants appeal.</p>

Action by John Charlton and another against Georgiana F. Webster and others. From an order granting plaintiffs’ motion for judgment on the ground of frivolousness of defendants’ demurrer to plaintiffs’ reply to a counter-claim, defendants appeal.

Action by Sarah B. Brush and others, executors of Sylvester Brush, deceased, and others, against the Manhattan Bail way Company and another. From a judgment for defendants, plaintiffs appeal.

<p>Appeal from special term, Onondaga county.</p> <p>Action by Jerome L. Cheney, receiver, against Ann Thornton. From a judgment for plaintiff entered at special term defendant appeals.</p>

Certiorari in behalf of the New York Central & Hudson Elver Railroad Company against Samuel Cook, assessor of the village of Bath, and other officials thereof, to review an assessment of the railroad property. The court below made an order denying a motion to quash the writ, and also an order permitting the writ, as well as the order allowing it, to be amended nunc pro tune. Respondents appeal from both orders.

Action by Pauline M. White, as administratrix, etc., of James White, deceased, against Mary Davis, administratrix, etc., of Bichard Davis, for money received on the sale of a market stand, transferred by plaintiff’s intestate to defendant’s intestate as security for indebtedness which plaintiff alleged had been paid before such transfer. The answer was a general denial and counter-claims on promissory notes, unpaid loans, and moneys paid on account of plaintiff’s intestate.

<p>1. Handwriting—Comparison—Amendment of Statute—Construction.</p> <p>Laws 1880, o. 36, provides (section 1) that “comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses in all trials, ” and (section 2) that “this act shall take-effect immediately. ” Laws 1888, o. 555, amended section 2 so as to read as follows: “ Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed on the trial to have made or exechted the disputed instrument or writing shall be permitted. ” Held, that a further provision of the amendment, that “nothing within contained shall aSect or apply to any action or proceeding heretofore commenced or now pending, ” applied only to the amendment.</p> <p>2. Note Executed by Decedent—Limitation of Actions.</p> <p>During the three years following the probate of a decedent’s will, limitations do not run against a note executed by him, as the holder of the note cannot sue within that time.</p>

Action by James Moore, assignee of George Page, Alfred Bigland, Robert Robinson, George F. Karck, and James Latham against James ÍJ. Bobertson, William H. Cotterill, and Arthur D. Williams, as receiver of the Electric Sugar-Befining Company, for the rescission of purchases by plaintiff’s assignors from defendants Bobertson and Cotterill of certain shares of stock in said Electric Sugar-Befining Company.

Action by John L. Dintruff against Clarence C. Tuthill, as surviving partner of the firm of Henry Tuthill & Son. From an order denying an application to vacate an attachment theretofore issued, defendant and certain third persons, who were not parties to the action, appeal.

Action by Harriet J. Rhodes against Clinton F. Stone as administrator of the estate of John R. Stone, deceased, for work and labor performed for intestate. Verdict and judgment for plaintiff. Defendant appeals from the judgment, and from an order denying a motion for a new trial.

Action on a promissory note by Bronson C. Rumsey and others against George D. Briggs and Charles D. Marshall. From a judgment entered on the report of a referee dismissing the complaint upon the merits, plaintiffs appeal.

Action by Minnie Bonnett against Theodore Townsend. Judgment for plaintiff. From a judgment dismissing an appeal, and from three orders granted in the action, defendant appeals.

Supplementary proceeding for the collection of a tax of Charles H. Harts-horn. Hartshorn appeals from an order denying his application to vacate an order appointing a receiver for his property, and also appeals from an order appointing such receiver.

Action by the Washburn & Moen Manufacturing Company against Hudson Clark to enforce his individual liability as a stockholder for a debt of the Boehester Steel Mat Company. Judgment for plaintiff. Defendant appeals.

<p>Evidence—Records of Courts of Another State.</p> <p>In an action by an administrator in behalf of the creditors of his intestate to set aside a deed of land in New York made by the intestate a short time before his death, the record of the claims allowed against the estate of the intestate in a foreign state is inadmissible to show that the intestate was rendered insolvent by giving the deed, as it applies only to the assets of the intestate in the foreign state, and it is immaterial that plaintiff was appointed administrator in both juris dictions.</p>

Action by Julius A. Schorn against Charles A. Berry. From an order striking out part of the answer as irrelevant, redundant, and scandalous, defendant appeals.

Action by David C. Barnard against the Press Publishing Company for an alleged libel. From an order entered at special term denying defendant’s motion to strike out the innuendoes contained in the complaint, defendant appeals.

Summary proceedings to recover possession of land by William McDonald against David H. McLaury and Catherine McLaury, instituted before a justice of the peace, who awarded plaintiff possession of the land. On appeal to the county court the order was reversed. Plaintiff appeals.

<p>Appeal from circuit court, Jefferson county.</p> <p>Action by James Snell against Loretta A. Dale, as executrix of Hannah Dewey, deceased, to enforce a claim against deceased. The complaint was dismissed. Plaintiff appeals.</p>

Action by Lida G. Chamberlain against Allen Chamberlain for divorce. Judgment for plaintiff. From an order denying plaintiff’s motion that the decree be so modified as to require defendant to pay plaintiff for the care, support, maintenance, and education of the children of their marriage, plaintiff appeals.

<p>1. Mechanics’ Liens—Buildings Erected by Tenant without Owner’s Consent.</p> <p>Where a lessee erects buildings on the land in the absence of ex; ress permission in the lease, the owner’s failure to dissent, and his assistance in the erection of the building as agent of the tenant, do not constitute consent, within the mechanics’ lien act, and'no liens for labor or material attach to the land.</p> <p>2. Trade Fixtures—Between Landlord and Tenant.</p> <p>Machinery placed by an electric light company in a building erected by it on leased land does not become part of the realty, and may be removed on execution by a creditor of the company.</p>

Action by William C. Cudd against Rhys Gwesyn Jones on a promissory note. From a judgment entered on a verdict for plaintiff, and from an order denying a motion on the minutes for a new trial, defendant appeals.

Action by David Moss and Morris Goldstein against the New York Elevated Railroad Company and the Manhattan Railway Company to restrain the operation of a road adjoining plaintiffs’ land. An award of past damages was made, and a perpetual injunction was granted, which defendants might avoid by tendering a certain sum for a deed of the easement, to be executed by plaintiffs. Defendants move to vacate the judgment.

Action by the Bradley Fertilizer Company against the South Publishing Company to recover a balance alleged to be due for goods sold and delivered. The answer denied the sale and delivery of the goods to defendant. From a judgment for plaintiff, defendant appeals.

Action by Michael Mahler against Samuel F. Hyman to recover money collected by defendant as attorney for plaintiff. From a judgment for plaintiff, defendant appeals.

<p>Honorably Discharged Union Soldiers—Improper Dismissal.</p> <p>The failure of an appropriation for work in an “annexed district” under the control of the department of public parks, and to which an honorably discharged Union soldier had been transferred, constituted no excuse for his discharge, when laborers were being employed and retained by the board for work in other sections under control of the department.</p>

Action by John L. Douglass against Robert W. Leonard, executor of William H. Leonard, deceased. From a judgment of the general term reversing a judgment for plaintiff at the trial term, plaintiff appeals.

<p>Action by Wilson H. Gardenier against Hiram Eldred.</p>

<p>Proceeding by Ambrose H. Carpenter as a creditor of Eleanor Greenly, deceased, to sell the land of decedent for the payment of debts.</p>

<p>Action by Charles McCarthy against Joseph M. Shipway.</p>

<p>Action by Samuel R. Mott, as supervisor of the town of Madison, against the Board of Supervisors of Madison county.</p>

<p>Action by Almira N. Strever against Orrin R. Earl.</p>

<p>Action by Cyrus D. Angelí against William Van Schaiek and others.</p>

<p>Action by George E. Wood, supervisor of the town of Stoekbridge, against-the Board of Supervisors of Madison county.</p>

<p>Action by Frederick Mohuk against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Nancy E. Pickard against James Carr and others.</p>

<p>Action by William Savage and others against the city of Buffalo.</p>

Action by the village of Stamford against John H. Fisher. From a judgment reversing a judgment of a justice’s court in favor of plaintiff, plaintiff appeals.

Action by Abram Smith against Almon H. Davis. Judgment for plaintiff, and execution issued. From an order of the county court vacating a subsequent execution and the levy thereunder as irregular and void, plaintiff appeals. On the 23d of December, 1887, the plaintiff obtained judgment against the defendant before a justice of the peace of the county of Otsego for $201.05 damages and costs.

Action by Mathias Schenck and Frank L. Pease against Arthur B. Erwin. From an order in supplementary proceedings denying a motion to vacate an order directing defendant’s debtor to pay plaintiffs $129, such debtor, Francis Erwin, appeals.

<p>Mortgages—Foreclosure—Evidence.</p> <p>In an action by the assignee of the mortgagee to foreclose, where plaintiff makes out a prirma facie case by offering the bond, mortgage, and assignment, and defendant gives evidence that the mortgage had been diverted from its original purpose, it is then competent, within the pleadings, for plaintiff to introduce evidence to show the circumstances attending the ownership by the assignor of the mortgage, and the purposes for which it was taken and held; such evidence being admissible to overcome or explain the evidence offered by defendant.</p>

<p>Appeal from circuit court, Oneida county.</p> <p>Action by Robert Watkins against William P. Jones and David T. Jones on a promissory note. From a judgment entered on a verdict directed for plaintiff, defendant William P. Jones appeals.</p>

<p>Appeal from special term, Chenango county.</p> <p>Action by Mary B. Gilbert against PerLee B. Shaw and others. From a judgment entered dismissing the complaint, plaintiff appeals.</p> <p>This action is brought to foreclose a mortgage given by the defendants PerLee E. Shaw and Marium M., his wife, to the plaintiff, dated July 1,1884. At that date, in consideration of the sum of $2,821 received by the defendant PerLee B. Shaw from the plaintiff, which sum was made up of 21 shares of the capital stock of the Utica, Chenango & Susquehanna Valley Railroad Company, of the value of $2 300 in fact at the time, and as agreed upon by and between the plaintiff anu said Shaw, and $421 in cash, the said PerLee E. Shaw executed and delivered to plaintiff a bond dated July 1,1884, in the penal sum of $5,642, and having the following condition: “The condition of this obligation is such that, if the said PerLee E. Shaw, or his heirs, shall at his house, in the town of Norwich, aforesaid, furnish and provide the said Mary B. Gilbert with a room, board, fuel, and light during the term of her natural life, she to provide furniture for the said room, and the said PerLee B. Shaw or his heirs shall pay to the said Mary B. Gilbert annually, on the first day of July in each year, interest on the sum of twenty-eight hundred and twenty one dollars, at three per cent, per annum, during the term of her natural life, and shall make all the payments required to be made on a certain bond and mortgage given by the said PerLee E. Shaw to Delos Fowlston on or about the 10th day of January, 1884, to secure $5,000.00 and interest, both of interest and principal, without default or delay, promptly, according to the terms of the said bond and mortgage, then this obligation to be void, otherwise to remain in full force and virtue; and it is further provided that in case of default in any of the foregoing conditions, including the provisions in relation to payments on the Fowlston bond and mortgage, then and in that case there shall immediately become due to the said Mary E. Gilbert hereon the said sum of $2,821.00, together with interest thereon from the date of such default at six per cent, per annum, and all interest accruing before such default. In case no default occurs in the life-time of said Mary E. Gilbert, then the said principal sum is not to be paid. PerLee E. Shaw. [l. s.]” As collateral security for the payment of the said indebtedness, and the performance of all the conditions of the bond, Shaw and wife, upon the same day, executed and delivered to the plaintiff the mortgage in suit, being upon certain premises in the town of'Norwich. It was duly recorded July 5,1885. No payments have been made on the bond and "mortgage, except the interest on the sum of $2,821, at 3 per cent, per annum, paid to July 1, 1890. The bond and mortgage to Fowlston, referred to in the condition above set out, were dated January 10, 1884. The mortgage covered the same property as the mortgage to the plaintiff, and was recorded January 10, 1884; and its condition, as well as that of the accompanying bond, was for the payment of the sum of “ five thousand dollars ten years from date, the first day of April then next, with interest annually at five per cent, per annum from and after the said first day of April; $300 of said principal sum to be paid on the first day of April, 1887, and $300 thereof on the first day of April in each and every year thereafter.” On the days when the interest and payments of principal became due on the bond and mortgage to Fowlston for four years, Shaw did not pay the same, but such non-payment was with the consent and acquiescence of Fowlston, who then held the bond and mortgage, and with the understanding and agreement that, instead of paying such principal and interest to Fowlston at the times when due, he (Shaw) would put improvements upon the farm described in the mortgage, in building a hop-house and procuring hop-poles, or otherwise, and that Shaw did build a hop-house upon the farm, and did put hop-poles upon the farm, which became a part of the real estate, and were of the value of $1,200. Long before the commencement of this action, and before the giving of any notice by the plaintiff in any way that she intended to foreclose or should foreclose her mortgage, Shaw paid to Fowlston all payments of principal that had become due, and all accrued interest that had become due; and, at the time this action was brought, no principal or interest upon the Fowlston mortgage was due. The balance of the principal unpaid was $3,800. The payments were made in cash, and were not the improvements referred to. The interest going to the plaintiff on her bond and mortgage has been promptly paid. On-the 5 th September, 1890, she demanded of Shaw payment of the principal sum of $2,821, which was refused; and this action was commenced on the 15th September, 1890. The foregoing facts are admitted by the pleadings or conceded at the trial. The court also found that the plaintiff, with full knowledge of the facts, accepted the payments to her of interest; that the plaintiff’s security was not impaired by the failure to make payments to Fowlston as they became due; that the intent and purpose of the provision in the bond and mortgage to plaintiff that the sum of $2,821 should become due upon any default was to prevent injury to plaintiff’s security from the enforcement of the Fowlston mortgage, and to secure to plaintiff the prompt payment of her interest, and was intended as penalty or forfeiture. As conclusions of law it was held: “(1) That this court has the power, in the exercise of its equitable jurisdiction, to relieve the defendant PerLee E. Shaw from the default claimed to have occurred by the non-payment of the principal and interest due to Fowlston on the days when due by the terms of the mortgage. (2) That the plaintiff not having suffered any damage, and her security not having been impaired, but in fact increased, and prompt payment having been made at all times of the interest due to her, and she having accepted and received such interest, and all payments due to Fowlston, both of principal and interest, having been made long before the commencement of this action, and before any notice that the plaintiff claimed a default or claimed the right to foreclose her mortgage, equity demands that the defendant be relieved from such default. (3) That the acceptance of the interest due to the plaintiff by her, on the days when due, operated as a waiver of her right to claim the forfeiture of the $2,821. (4) The defendants are entitled to a judgment relieving them from the aforesaid default, and declaring that the principal sum of $2,821, secured by the plaintiff’s mortgage, is not due or payable. (5) The defendants are entitled to a judgment dismissing the complaint of the plaintiff. (6) That, under the circumstances of this case, it is inequitable to permit an enforcement of the penalty or forfeiture by permitting a foreclosure of the plaintiff’s mortgage for $2,821, and a judgment of foreclosure is therefore refused.”</p>

<p>Limitation op Actions—Running op the Statute—Stay op Proceedings.</p> <p>A stipulation to stay proceedings on a claim against an estate, given in pursuance of an order requiring it, is, in efiect, an order for a stay, under Code Civil Proc. § 406, providing that, where the commencement of an action has been stayed by an order, the time of the stay is not a part of the time limited for the commencement of an action, and the time of such stay should be excluded in computing the time within which an action must be commenced under section 1822, which bars a claim presented against an estate and rejected, unless action is brought thereon six months after rejection.</p>

<p>1. Injunction—Supplementary Proceedings—Contempt.</p> <p>A judgment debtor, before service on him of an injunction order in supplementary proceedings forbidding any transfer of his property, assigned all of his interest in an insurance policy on the life of a third person, deceased, to his wife. After service of such order he collected the insurance money, and paid the same over to his wife. Held no violation of the injunction order; title to the money not being in the debtor.</p> <p>2. Same—Costs.</p> <p>In proceedings by a judgment creditor against the debtor for contempt in disobeying an injunction order in supplementary proceedings, a rule to show cause and a reference being had on the creditor’s application, in both of which he failed, the court properly exercised its discretion in awarding costs against the creditor.</p>

Action by William H. DeMott against Francis M. Kendrick for an accounting. Judgment was directed by a referee in favor of defendant. On the 10th of April, 1891, the attorneys for defendant entered judgment and taxed costs without notice to the attorney for plaintiff.

Action by John D. Brunner against Francis W. Downs and Francis T. Newell. -From a judgment entered on a nonsuit, and from an order denying a new trial on the minutes, plaintiff appeals. This was an action for alleged false imprisonment.

Action by Gilbert Griffin against Max T. Porawski to recover rent. Defendant rented premises of plaintiff for the term of one year, beginning May 1, 1890, paid a deposit thereon, and took possession May 1st. In April, 1890, plaintiff asked defendant’s wife if they were going to stay another year, to which she replied, “Tes; we are not going to move, unless you turn us out,” and that perhaps they would stay four or five years.

Action by Bridget Meyers against David Hunt, as executor of Harrison Hunt, upon a promissory note alleged to have been made by defendant’s testator, but which defendant claimed was a forgery. Judgment for plaintiff. Defendant appeals.

Action by William M. Martin, as trustee under the will of Francis WHutchins, deceased, against Bertrand Clover and others, to foreclose a mortgage on real estate. Judgment for plaintiff. Defendant Clover appeals.

<p>Appeal from circuit court, Queens county.</p> <p>Action by Henry Bedell against Benjamin C. Kirk for injuries to plaintiff’s sloop, alleged to have been caused by defendant removing an anchor by which it was moored, whereby it was driven ashore. Judgment for plaintiff. Defendant appeals.</p>

Action by Abram T. House against Silas B. Babcock upon a contract for the sale of goods. Plaintiff was ordered to make his complaint more definite and certain, and requiring him to set up separately and number the different causes of action stated therein.

Action by Charles E. Ogden against Elizabeth Alexander and others to foreclose a mechanic’s lien. Judgment for plaintiff on the report of a referee. Defendants appeal. Other parties were made defendants, but they did not appear before the referee, and do not appeal.

Action by William B. Mann against the city of Brooklyn upon water loan bonds. Defendant claimed that the bonds had been stolen from one Charles Jansen, who, on proving his loss, had been paid the amount of such bonds. Judgment for plaintiff. Defendant appeals.

Action by Harriet E. Quereau against Robert McCord, executor of Stephen Brown, and others. William L. Brown, one of the defendants, appeals from a final judgment entered upon an order overruling a demurrer, and allowing defendant to answer within20 days on payment of costs.

Action by Charles L. Wright against Henry E. Burritt and another on a check drawn on defendants by the Bheubottom & Theall Manufacturing Company at Weedsport, Cayuga county, H. Y„ where defendants, bankers, then resided. Plaintiff’s contention was that a special deposit had been made to meet the check, and he expected to rely on the testimony of Homer E. Rheubottom to show that fact.

Action by Philip Decker against David Hammond on an alleged agreement by defendant to pay a claim of plaintiff against one Luke Wyneoop.

<p>Appeal from circuit court, Queens county.</p> <p>Action by Anna M. Arnold against the Norfolk & New Brunswick Hosiery Company. Prom ajudgmentforplaintiff, defendant appeals.</p>

Action by Thomas Watts, receiver, against Horatio R. Wilcox and others. From an order denying a motion to vacate an order for the examination of defendants before trial, they appeal.

Action by Patrick S. Boylan, assignee of Thomas Shevlin, against Charles A. Brown and another to recover damages for the loss of a horse and cart caused by a fall from defendants’ dumping dock, which was insufficiently provided with means to prevent dumping carts from going over; the string-piece intended for that purpose having been worn down so low as to be no longer safe. From a judgment for defendants, plaintiff appeals.

Action by William E. Lawrence and James Y. Lawrence against Alvin W. Harrington. Motion by plaintiffs to punish Joseph H. Harrington and Alvin W. Harrington, Jr., for contempt, in giving an insufficient undertaking on appeal by defendant from a judgment for plaintiffs, and falsely justifying as to their responsibility. Plaintiffs appeal from an order denying the motion.

Action by Richard Cronin and others against William M. Tebo. From an order severing the causes of action, and permitting plaintiffs to enter judgment for the sum claimed in one, defendant appeals.

Action by Jane Ann Conklin against the Hew York Central & Hudson River Railroad Company to recover damages for personal injuries. Plaintiff was struck by defendant’s hand-car while she was crossing the railroad tracks at Tappan for the purpose of taking a train not then due. From a judgment for plaintiff, defendant appeals.

Action by Josephine Vandewater, administratrix of William P. Vandewater, deceased, against the Uew York & New England Railroad Company to recover damages for the death of the intestate. Erom a judgment for ’plaintiff, defendant appeals.

<p>Appeal—Matters not Apparent on Record.</p> <p>Where a party moves for a new trial on the minutes of the court without specifying the grounds of his motion, and the case on appeal does not contain the order denying such motion and showing the grounds therefor, the judgment below must be affirmed.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Sarah A. Swift, by Moses Swift, her guardian ad litem,against the Staten Island Rapid Transit Railroad Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from surrogate’s court, Dutchess county.</p> <p>Final accounting of Bichará A. Kenworthy and Alanson H. Saxton, executors of Thomas Kenvvorthy. Martha J. Kenworthy, executrix, appeals from a decree disallowing her commissions, authorizing the executors as trustees to retain commissions on the trust fund in advance, and apportioning a tax assessed on “the estate of Thomas Ken worthy” upon a trust fund in the executor’s hands and the balance of the estate.</p>

Action by Halcyon Skinner against Sophia H. White upon a bond. Plaintiff appeals from an order allowing defendant to amend an answer to the amended complaint after the ease had been partially tried before a referee.

Action by Gerald McMurray, assignee, against Andrew McMurray and others, children of a deceased mortgagor, to forclose a mortgage assigned after the mortgagor’s decease. The assignor was asked at the trial whether he had ever been paid the consideration of the mortgage, and whether he had ever received any money on account of the same, which questions were excluded.

<p>Appeal from special term. Queens county.</p> <p>Action by Fanny B. Holland against Arthur Brown to reform a deed of real property. Judgment for plaintiff. Defendant appeals.</p>

Action by Susan Walters, executrix of Samuel B. Walters, deceased, against Albert B. Kraemer, to recover a debt. Plaintiff caused a notice of pendency of action to be filed, and obtained a warrant of attachment. The property described in the notice when the same was filed, belonged to Fredericka Kraemer, who subsequently conveyed the premises to a third party.

Application by Frederick Wood for a peremptory mandamus to cancel an entry on the record of taxes. The mandamus was issued, and John C. McGuire, registrar of arrears of the city of Brooklyn, and Alden S. Swan, collector of taxes of said city, appeal.

<p>Appeal from circuit court, Westchester county.</p> <p>Action by the Anchor Brewing Company against Charlotte McDonald and another on a promissory note. From a nonsuit, plaintiff appeals.</p>

<p>Appeal from special term, Westchester county.</p> <p>Petition by the Pocantico Water-Works Company to acquire riparian rights in the Pocantico river, in Westchester county, under Laws H. Y. 1876, c. 415, which provides, among other things, that “before entering upon, taking, or using any land for the purposes of the above-recited act, the said company shall cause a survey and map to be made of. the lands intended to be taken or entered upon for any of the purposes of the said act, by and on which the-lands of each owner or occupant shall be designated,” etc. From a decree confirming the report of commissioners appointed to ascertain the compensation to be made to proprietors, Jacob Brombacher’s Sons appeal, and assign as error, among other things, the insufficiency of the map to show the nature and location of petitioner’s works, but principally the exclusion of evidence tending to show the insolvency of petitioner.</p>

Action by the Prentiss Tool & Supply Company against Frank G. Schirmer, sheriff, for the conversion of certain goods levied on as the property of Cora E. Florance, claimed by plaintiff under a bill of sale from her, though there was never any transfer of possession. From a judgment for plaintiff, defendant appeals.

Action by Elizabeth Goram, w'idow of James Goram, against Hanford R. Cable, under the “civil damage law,” for causing the death of her husband by furnishing him with the means of intoxication. There was evidence that deceased and a companion, after consuming a pint of whisky before reaching defendant’s place at Glenmere lake, on arriving there drank three glasses of beer each, obtained from defendant, after which they got into a boat, to go fishing.

<p>Appeal from circuit court, Bichmond county.</p> <p>Action by Thomas Foley against Theodore H. Schiedemantel and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Contracts not to Engage in Trade—Breach—Evidence.</p> <p>A covenant with an ice-dealer not to “engage, directly or indirectly, or concern himself, in carrying on or conducting the ice business, either as principal or agent, within ten miles ” of a particular place, will be violated by riding on an ice-cart, and delivering ice, and soliciting customers,.for a rival dealer, within the specified limits.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Frank Lyons against John P. Jube and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from special term, Westchester county.</p> <p>Action by David G. Burton against Thomas W. Ringrose and Harriet R. Rockwell to enforce a mechanic’s lien. From a judgment for plaintiff, defendant Rockwell appeals.</p>

Proceedings for the probate and construction of the will of Robert J. Walker, deceased. Testator, in his life-time, from his own means, deposited various sums in bank, in trust for his several children, intending to provide for them in that way. By his will he bequeathed these funds respectively to his several children. During his life-time he withdrew from the trust-account of his daughter Catherine É.

<p>Appeal from circuit court, Rockland county.</p> <p>Action by David Gurnee against Louis H. Hutton on an order. From a judgment for plaintiff, defendant appeals.</p>

Proceedings by Christian D. Bernsee and another for the probate of the will of Adeline D. Bernsee, deceased. Code Civil Proc. 27.

Action by Harriet S. Rumsey and others against the New York & New England Railroad Company for damages to real property of plaintiffs from the obstruction of access therefrom to the Hudson river by the construction of defendant’s railroad. Judgment for plaintiffs. Defendant appeals.

<p>Appeal from surrogate’s court, Kings county.</p> <p>Application by Anna M. Tienken to compel Anna Seebeck, surviving executrix and trustee of John H. Seebeck, deceased, to pay over to applicant, individually or as executrix of Hénry M. Tienken, deceased, certain funds. From a decree in favor of applicant, John H. Tienken and others appeal.</p>

Action by Effa Brown against Elizabeth King, John Swezy, and others for partition. A referee in the case was directed to pay certain proceeds of sale in his hands to the county treasurer for unknown heirs, but died without obeying the orders. Parties interested filed a petition in the cause against his executor, seeking payment of such proceeds, and from an order directing such payment the executor appeals.

Action of ejectment by Elizabeth D. De Lancey against Henry Piepgras, John Hunter, and others. Judgment for plaintiff, and order denying new trial. Defendant Piepgras appeals.

Probate was contested by Mary Gordon and others, on the ground, among others, of incapacity of testatrix to execute a will by reason of advanced age and impaired faculties. From a decree admitting the will to probate contestants appeal.

Motion to resettle order of general term. Action by James 0. Held: in general term, following the case of Bridge Co. v. Wagner, (Sup.) 10 27. Y. Supp. 840, involving the' same questions, that the appropriation was valid, and that the commissioner of highways had the right to make the contract in question, thereby reversing the decision of special term.

Action by Henry J. Sprague against Robert L. Gibson. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial made upon the minutes, defendant appeals. The action was brought to recover damages for malicious prosecution, and for trespass in the execution of a search-warrant upon the person and premises of the plaintiff.

Action by Frederick Stearns & Co. against Ella A. Eaton. From an order of the county judge denying plaintiff’s motion to punish defendant for an alleged contempt, and for an order to compel her to pay over certain money in her possession to the receiver appointed in supplementary proceedings against her, plaintiff appeals.

Action by Loren Doing, as administrator of Robert P. Hare, deceased, against the New York, Ontario & Western Railway Company for damages for negligently causing the death of plaintiff’s intestate. Verdict for plaintiff for $4,000. Prom an order granting a new trial plaintiff appeals.

Action by Jennie C. Griffith against the Utica & Mohawk Railroad Company for personal injuries. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals.

Action by Alfred Higgins against Jacob Crouse to rescind a contract of sale of corporate stock, and to recover damages, on the ground of fraud. From a judgment for plaintiff entered on the decision of the court after trial at special term, defendant appeals. This action was commenced July 3, 1889.

Action by James R. Schermerhorn and Abram M. Schermerhorn, as surviving administrators of James A. Schermerhorn, deceased, against Edward H. Brewer for an accounting. From a judgment for plaintiffs entered on the report of a referee, defendant appeals.

<p>Ejectment—Evidence op Plaintiff's Title.</p> <p>In ejectment, it appeared that the original owner gave a mortgage of a tract including the land in question, and that the mortgagee released the strip in dispute to the mortgagor. Subsequent conveyances by the mortgagor, through which plaintiff claimed, did not embrace the disputed land, but it appeared to have been conveyed by the deeds under which defendants claimed title. Held, that a finding in defendants’ favor was justified bv the evidence.</p>

Action by John Scott and Edward H. Foster, executors of Lewis Scott, against Daniel S. Havens. Verdict and judgment for defendant, and order denying motion for a new trial. Plaintiffs appeal.

Action by George V. Brower, as receiver of the Ridgewood Ice Company, against William A. Husted, the Brooklyn Trust Company, as trustee, etc., and others, to set aside mortgages of real estate. Defendant Husted appeals from an order changing the place of trial from Westchester county to Kings county.

Reference of a claim by Isaiah Washburn, executor of Mary F. Mathews,' against the estate of Joseph Mathews. The claimant appeals from a judgment confirming the report of a referee allowing the claim.

<p>Notes Payable on Demand—^Condition Imposed by Maker.</p> <p>Notes given on á purchase of the payee’s interest in a business were payable on demand, but the maker stated, in a letter inclosing the notes, that they were to be payable when he procured a partner. He had, however, previously disposed of the business. Held, that the notes were payable according to their terms.</p>

Action by Watson Van Benthuysen against the Central New England & Western Railroad Company, the Fidelity Insurance, Trust & Safe-Deposit Company of Pennsylvania, trustee, and another, to foreclose a mortgage by the defendant railroad company to the defendant trustee. Plaintiff appeals from an order denying a motion for the appointment of a temporary receiver.

Action by George H. Martin against Thomas Graham to recover rent, due plaintiff from a third person, held by defendant. Judgment for defendant. Plaintiff appeals.

Action by Maria Arnott against the Prudential Insurance Company of America upon a policy of life insurance. Defendant appeals from a judgment of the county court affirming a judgment of a justice of the peace in favor of plaintiff.

<p>Dedication of Land fob Public Stbeet—Revocation.</p> <p>A dedication of land by designating it on a map as a public street is revoked by the owner’s acceptance of an award for a portion of it taken by highway commissioners for a new street, and by her removing a fence from the line of such old street to the new one; and her subsequent grantee of a lot of land bounded “along the side” of such new street cannot compel the removal of a structure erected upon the old street by a prior grantee of a lot bounded on the street as originally dedicated.</p>

Action by William H. Vanderhoof, individually, and as an executor of Emiline R. Vanderhoof, against William B. Lane, individually, and as an executor of. said testatrix, and others, for the construction of her will. Judgment for plaintiff. Defendants Lane and others appeal.

Action by Daniel D. Cox against James Dwyer for moneys alleged to have been fraudulently obtained from plaintiff. Plaintiff appeals from an order vacating an order of arrest against defendant.

Action by Athenais Von Hoffman against George H. Kendall to recover treble damages, under Pen. Code, § 654, for cutting trees from plaintiff’s land. Defendant appeals from a judgment sustaining a demurrer to an affirmative defense in the answer.

Action by Thomas Curnan against the Delaware & Otsego Bailroad Company upon a contract for construction of a railway. Defendant appeals from a judgment in plaintiff’s favor, rendered by a judge at circuit without a jury. The contract provided that defendant might dissolve the contract upon five days’ notice, whereupon plaintiff would become entitled to the value of work performed and to $3,000 as liquidated damages.

Kings county. Action by James H. Mullarky, trustee, against James Sullivan and others for the construction of the will of James Sullivan, deceased. From a judgment in favor of certain defendants, plaintiff and Mary Ann Mullarky and James E. Mullarky, defendants, appeal.

Action by Isidore J. Beaudrias against Ambrose Walck on certain “promissory notes” given for the price of goods, and containing a reservation of title to the payee. Defendant demurred to the complaint on the ground that the instruments in question were not negotiable promissory notes, or instruments for the payment of money only, but ‘.‘contracts for property,” and that a sale and delivery should have been averred. From a judgment for plaintiff, defendant appeals.

Action by Peter Schmerenbeck against Hugo Funke for wrongful discharge. There was judgment for plaintiff for $754, and defendant appeals.

Exceptions from circuit court, Kings county. Action by the J. M. Horton Ice-Cream Company against Edward P. Merritt and another. The complaint was dismissed, and plaintiff moves for a new trial on exceptions ordered to be heard in the first instance.

<p>Appeal from Dutchess county court.</p> <p>Action by Edwin Somerville against the City Railroad Company of Poughkeepsie. From a judgment for plaintiff, defendant appeals.</p>

Action by Don A. Gaylord and others against John D. Karst, Jr. From a judgment of the general term of the city court affirming a judgment for plaintiff at the trial term, defendant appeals..

Action by Charles Ulrich against Edward Ulrich, as executor of Barbara Ulrich, deceased. Verdict and judgment for defendant. Plaintiff appeals from the judgment and order denying a motion for a new trial.

Action by Pasqual Antonia Biche against Lawrence Martin. The complaint alleges: “Fil-st. That defendant made a promissory note to the order of the plaintiff, dated ‘New York, March 25, 1891,’ and delivered the same to the.plaintiff, and thereby promised to pay the sum of $612, 30 days after said cíate, at the Twenty-Third Ward Bank in the city of New York. Second.

<p>Statute of Frauds—Original Undertaking—Evidence.</p> <p>On the question whether defendant’s verbal promise to pay the debt of another was a collateral or original undertaking, there was evidence that defendant had said he would “see the bill paidbut there was also evidence that defendant had personally paid to plaintiffs a part of the bill on account, and received a receipt in his own name. Held, that the court erred in dismissing the complaint.</p>

Action by Sigmund Hirschfelder against the Locey Mining & Manufacturing Company and another. A demurrer to the complaint was overruled, and defendant company appeals.

<p>Judgment—Opening Default—Laches of Defendant.</p> <p>Action was begun against defendant November 8, 1883, judgment recovered by default September 30, 1885, and execution issued April 3,1886, and returned unsatisfled. Nothing was done by defendant until April 16,1891, when he moved to open the default; he having in the meanwhile inherited means wherewith to pay the judgment. Held, that the motion was properly denied on account of defendant’s loches and indifference.</p>

<p>Appeal from special term.</p> <p>Action by Elizabeth Meyers against the United Life Insurance Association. From a judgment sustaining a demurrer to the complaint plaintiff appeals.</p>

<p>Sale—Action fob Pbice—Expiration of Credit.</p> <p>In an action for goods sold and delivered, defendant and his witnesses testified that he was to have one year’s time in which to pay for the goods, and that the credit had not expired, which testimony was uncontradicted. Held, that the court erred in withdrawing the question of the existence of a credit from the jury, and in directing a verdict for plaintiff.</p>

Exceptions from trial term. Action by Allen B. Pharo and. others against Beadleston & Woerz to recover damages for failure to accept goods sold. The court directed a verdict for plaintiffs, and defendants move for a new trial on exceptions ordered to be heard in the first instance.

Action by the Nassau Bank against Joseph Campbell and others, executors of William Campbell, deceased, upon promissory notes. Judgment for plaintiff upon verdict directed by the court. Defendants appeal.

Action by Anne A. Morss against Edward Burns and others to foreclose a mortgage. A prior mortgage existed in favor of one Hawley D. Clapp, but he had released the same in plaintiff’s favor as to the premises covered by her mortgage. From a judgment for defendants, plaintiff appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Charles Sperry against Samuel L. Fox and another.' From an order denying a motion to vacate an attachment, defendants appeal.</p>

Action by Edward Burnes, Jr., by guardian ad litem, against the Staten Island Rapid Transit Railroad Company, to recover damages for personal injuries inflicted on plaintiff in attempting to rescue a child four years old on defendant’s track. There was no evidence that defendant’s engineer, in rounding a curve, could have seen the child on the track at a greater distance than 400 feet. From a judgment for defendant, plaintiff appeals.

<p>Mortgages—Payment—Services Performed by Mortgagor.</p> <p>A contract that the mortgagor shall pay the interest on the mortgage, and attend to and take care of the mortgagee when she shall be sick, in the future, and that when she dies the mortgage shall be the property of the mortgagor, is valid, and, being performed, operates as a satisfaction of the mortgage. Rhodes v. Rhodes, 3 Sandf. Ch. 279, followed.</p>

Action by Louis T. Duryea and others against William C. Yosburgh to recover $6,000 alleged by, plaintiffs to have been improperly charged them by defendant as an advance on an interest in a firm which he was employed to purchase for them, of which defendant was a member. From a judgment for defendant, plaintiffs appeal.

<p>Appeal from court of oyer and terminer, Rockland county.</p> <p>Indictment against Denton Fowler and another for maintaining a common nuisance. From a conviction, defendants appeal.</p>

<p>1. Condemnation Proceedings—Commissioners—Disqualification by Interest.</p> <p>Under the provision of the act to incorporate the city of Middletown, (Laws 1888, c. 535, tit. 6,17,) for the appointment of three disinterested freeholders as commissioners to open and lay out streets in the city, a commissioner is not disqualified by the fact that he is brother-in-law to one "of a firm owning lands affected by condemnation' proceedings.</p> <p>2. Same—Disqualification by Relationship.</p> <p>Code Civil Proc. § 46, providing that a judge shall not act in a cause or matter if he is related by consanguinity or affinity to any party to the controversy, does not apply to such a commissioner.</p>

Action by Frank F. Wood against Michael O’Brien, trustee, and William F. Croft, executor of Frances A. Croft, deceased, to foreclose a mortgage. The defense was that the bond to secure which the mortgage was given was without consideration, having been executed by a trustee at the procurement of the husband of the cestui que trust to enable the husband, who was engaged in stock speculations, to obtain credit with a firm of stock-brokers.

Proceedings for the opening and extension of Brownell street, in the village of Edgewater. From so much of an order sending back the report of commissioners of estimate and assessment, on the application of the Marine Society of the city of Hew York, as imposes on said society the payment of costs as a condition of recommittal, it appeals.

<p>1. Slander—Want of Chastity—Damages.</p> <p>The sum of $3,500 is not excessive damages for slander in imputing unchastity to a woman.</p> <p>3. Witness—Credibility—Contradictory Statements.</p> <p>Where a witness testified that she was induced by fear to withdraw a charge of assault, on the ground that the charge was made through fear, and the withdrawal was put in evidence to impeach the testimony of the witness, the court properly called the attention of the jury to the fact that the withdrawal contained no denial of any of the facts stated in it, or shown in the present trial, or sworn to before the justice before whom the charge was made.</p> <p>8. Action for Slander—Arguments of Counsel—Propriety of Comment.</p> <p>In an action for slander there was evidence tending to show that defendant had turned his mother-in-law out of his house, and he was cross-examined touching that fact, without objection. His own evidence left it uncertain whether she had left the house voluntarily or had been turned out, and it was afterwards shown that she was at plaintiff’s house after midnight on the night of the alleged eviction. Held, that a judgment for plaintiff should not be reversed because her counsel stated to the jury that defendant had turned his mother-in-law out of doors.</p>

Action by Walter M. Wheeler and others against Elizabeth A. Britton for failing to accept ice sold. Plaintiffs’ proposition of sale was as follows; “I will deliver you not less than three thousand and five hundred tons of ice, and four thousand if it holds out that much, along-side of dock at Staten island, * * * at three dollars per ton.” Plaintiffs’ ice was contained in ice-houses near Troy.

Action by Isabel S. Tripler against the mayor, aldermen, and commonalty of the city of Hew York to recover back moneys paid on an illegal assessment. Defendant-appeals from a judgment for plaintiff entered upon a verdict, and from an order denying a motion for a new trial.

<p>Judicial Sale—Objection bt Purchaser to Title.</p> <p>A purchaser at a partition sale, in 1891, objected to the title upon the ground that a map of a road of a turnpike company, on file in the register’s office of the county, showed that a portion of the premises formed part of such road. It did not appear by whom the map was filed, or whether it was authentic, or had any official character. The road had been discontinued prior to 1810, and the attorney for the turnpike company orally disclaimed any interest on the part of the company. There was no vestige of such a road in the vicinity of the premises, the official city maps failed to show it, and the property was assessed irrespective of any map. About 1859 a division of the tract in which the premises were located had been made and lots laid out and conveyed without mention of the road, and the property had been held by the grantees from that time. Held, that the objection was too shadowy and contingent to justify the purchaser in refusing to complete.</p>

<p>Appeal from circuit court, Mew York county.</p> <p>Action by Michael Bowen, heir at law of Mary Teresa Hatton, deceased, for partition, against Michael Sweeney and others, devisees of said decedent, and Thomas Bowen, John Moran, and others, also heirs at law of said decedent. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants Michael Sweeney, Catherine Gallagher, and Francis Gallagher appeal.</p>

Action by Barbara Scholl against the Broadway Railroad Company of Brooklyn to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals.

<p>1. Life Insurance—Construction of Policy.</p> <p>A life insurance policy, after providing for the payment, on the assured’s death, of a fixed sum to his children, in consideration of annual premiums, declared that, after full payment of two or more premiums, “this policy becomes a paid-up non-forfeiture for an amount equal to a sum of one-tenth of that hereby insured for each and every premium which shall have been so paid, requiring no further payment of premiums, subject to no assessments, but entitled to its apportionment of the surplus accumulation in the ratio of its contribution thereto. ” Held, that there was no agreement to issue a paid-up policy at any time, and there was no right of action, before the assured’s death, to determine the rights of his children in the policy.</p> <p>2. Same.</p> <p>Nor did the non-payment of premiuns entitle the company to ask for the surrender and cancellation of the policy by way of affirmative relief. There was no right of action by either party until the death of the assured.</p> <p>8. Same—Judgment.</p> <p>The only proper judgment was the dismissal of the case, and it was improper to incorporate therein findings showing the reasons for the judgment.</p>

<p>Appeal from special term, Hew York county.</p> <p>Action by Albert M. Crouter against Annie E. Crouter and others for partition. There was judgment of partition, and a sale thereunder, at which Ascher Weinstein and Sarah E. MacDonald were the purchasers. A motion to compel them to complete the purchase was sustained by the court, and from the order made in that behalf they appeal.</p>

<p>Beceivers—Leave to Sue—Liens.</p> <p>Certain tailors received from a firm a large number of coats to be made up, under an agreement that they should have a general lien thereon for the work to be done, and also for money due for prior work. The firm failed, and on suit by other creditors a receiver was appointed. The tailors thereupon petitioned for leave to sue the receiver in foreclosure. Helcl, that their claim, being of equitable cognizance, could be determined in the receivership suit, and it was within the discretion of the court to deny the petition. Van Brunt, P. J., dissenting.</p>

Action by Carroll S. Page against Joseph Krekey on a guaranty. Plaintiff was a dealer in green calfskins at Hyde Park, Vt. Bernard A. Thinnes was a drum-head manufacturer in Brooklyn, who, in order to obtain skins from plaintiff, procured from defendant, an illiterate man, by misrepresentations, a guaranty of payment therefor. Prom a judgment for plaintiff, defendant appeals.

Action by Eliza M. Sloane against the New York Elevated Railroad Company and the Manhattan Railway Company for an injunction. Defendants appeal from a judgment for plaintiff rendered on trial by the court without a jury.

Accounting of Luke A. Lockwood and Oliver B. Van Beuren, as executors and trustees under the will of Gerardus A. C. Van Beuren. John Van Beuren, one of the residuary legatees, appeals from a portion of the surrogate’s decree directing the retention and investment of a portion of the residuary estate for the purpose of paying taxes and expenses.

Action by Henry A. Go wing and others against Marcus Levy and Morris Levy for goods sold and delivered. Defendants appeal from an order denying a motion to review a taxation of costs by the clerk.

Action by Homer D. Mix against Orrin G. Staples for breach of warranty. Defendant appeals from a judgment for plaintiff entered upon a verdict, and from an order denying a motion for a new trial.

Action by the Panama Bailroad Company against Bichard L. Johnson to recover moneys alleged to have been embezzled. Plaintiff appeals from a judgment for defendant entered upon a verdict, and from an order denying a motion for a new trial.

Petition of the New York Elevated Railroad Company to acquire title to certain real estate in the city of New York. William N. Cole and others, owners of real estate sought to be acquired, appeal from an order appointing commissioners of appraisal.

Petition by Adelaide O. Moderno, as assignee of claims against Antonio J. Moderno, deceased, for payment of the same by the temporary administrator of said decedent. Petitioner appeals from an order denying the petition.

Action by Charles Wood against William Mitchell and others to set aside judgments by confession, upon the ground that defendant Mitchell had obtained from plaintiff an extension of time in an action then pending, and thereafter confessed the judgments in question. Plaintiff appeals from a judgment for defendants, rendered on trial by the court without a jury.

Exceptions from circuit court, Hew York county. Action by Austen G. Fox, as receiver of the property of the Madrid Apartment Association, against James Jennings McComb and Jose F. De Havarro, to recover subscriptions to stock. Plaintiff moves for a new trial on exceptions ordered to be heard in the first instance at general term.

Actions by Dr. Jaeger’s Sanitary Woolen System Company against George Le Boutillier, and by the same plaintiff against Frederick Loeser and another, to restrain infringements of a trade-mark. The plaintiff appeals from orders in both cases appointing a referee to take testimony as to the value of the trade-mark, with a view to granting an additional allowance of costs to defendants.

Petition by John L. Lawrence for a writ of certiorari to the commissioners of taxes and assessments of Hew York city to review an assessment for taxation of personal estate. Assessments confirmed. Relator appeals. The relator sought to have the assessment vacated on the ground that he was not a resident of Hew York city. The evidence showed that he lives most of the time at Lawrence, L. I., where he has a half interest with his sister in about 150 acres of land.

Action by the Hong-Kong & Shanghai Banking Corporation against Joseph M. Emanuel and others to recover a balance due on a bill of exchange drawn against a shipment of oil to Japan. The bill was for £6,678, drawn by Albert A. Meyer at Hew York on Meyer & Co. of Hiogo, Japan, and indorsed by defendant Emanuel. Meyer and Emanuel were jointly interested in the cargo of oil, procured the bill to be discounted by plaintiff, and transferred to it the bill of lading as security.

<p>Appeal from special term, Hew York county.</p> <p>Petition by Robert A. Chesebrough to reduce an assessment for sewers in Eighth avenue, between 105tli and 114th streets. Motion to reduce denied. Petitioner appeals.</p>

Action by Francis Higgins, as receiver of the firm of T. A. Anglim, against John J. Curtis and said Anglim, to set aside an alleged fraudulent conveyance of a stock of goods. Judgment for plaintiff. Defendant Curtis appeals.

Exceptions from circuit court, New York county. Action by Walter S. Brewster against John C. Short. A verdict for plaintiff was directed at circuit, and defendant moves for a new trial on exceptions ordered to be heard in the first instance.

<p>Appeal from special term, New York county.</p> <p>Action by Charles C. Fritz against Emil W. Fritz for partition. From a judgment for plaintiff, defendant appeals.</p>

<p>Exceptions from circuit court, Hew York county.</p> <p>Action by Lillie Burleigh Reid, executrix of William Johnson Reid, deceased, against the Hew York, Hew Haven & Hartford Railroad Company, to recover damages for the death of her testator. Verdict was directed for plaintiff at circuit, and defendant moves for a new trial on exceptions ordered to be heard in the first instance.</p>

Action by August N. Kiep against the Metropolitan Elevated Railway Company and another, to recover damages to the fee value of plaintiff’s premises. The conclusion of law and findings of fact by the referees; referred to in the ■opinion, were as follows: “Sixteenth.

Action by Sophia Brown individually, and as executrix of Edward H. Brown, deceased, her husband, against Lafayette J. Finch, for the appointment of a receiver of the advertising business carried on by him under the name of Brown & Bulverman. A receiver was appointed and an injunction granted. Defendant appeals.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by James Hedges against William H. Payne and others. From a judgment for plaintiff, defendant Payne appeals.</p>

<p>Appeal from eirsuit court, Hew York county.</p> <p>Action by Mary Bloom against the Manhattan Elevated Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Action by John E. Fischer against Gertrude Boecher, Adam Boecher, and Frederick Bollwage, to establish a trust. Plaintiff appeals from a judgment entered upon an order dismissing the complaint at the opening of the 0trial upon the ground that it did not state facts sufficient to constitute a cause of action.

Action by Luiz Diaz Govin against Luciana Govin de Miranda and others, to recover dower in her husband’s real estate. Plaintiff appeals from an order denying a motion to vacate an order for her examination before answer,

Action by William M. House against John L. Lockwood and Juliet R. Lockwood, his wife. From a judgment dismissing the complaint on the merits and granting affirmative relief to defendants, and also from an order denying a motion for a new trial on the minutes, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Augustus F. Holly, executor of Nathaniel Thurston, deceased, against Kaufman Hirsch. From a judgment for defendant, plaintiff appeals.</p>

Action by Paul F. O’Neill against Emory M. Van Tassell to recover $500 paid on execution of a contract of sale of real estate, and $200 expenses of examination of title.

Exceptions from circuit court, Hew York county. Action by the Fifth Avenue Bank of New York against the Forty-Second Street & Grand Street Ferry Railroad Company for damages because of its refusal to transfer on its books certain stock to plaintiff, or to recognize plaintiff. Defendant excepts. Plaintiff bank became possessed of the certificates of stock by taking them from Ferdinand W. Hofele as security for a loan.

<p>Appeal from special term, Hew York county.</p> <p>Action by the Consolidated Gas Company against the mayor, aldermen, and •commonalty of the city of Hew York and others. From an order continuing an injunction, defendants appeal.</p>

Proceedings by the Southern Boulevard Railroad Company to acquire the right to construct its road in the Southern boulevard, in- the city of Hew York. The company applied to discontinue its proceedings, and the application was resisted by Paul Spofford’s devisees, E. Woodbury, Paulina S. Pearsall, and others.

■Appeal from special term, New York county. Action by Nicholas W. Walsh, as sole acting executor and trustee under the will of Hugh Waldron, deceased, against Marie, Ellen, James, William, Hugh, and Daniel Waldron, and Flavius J. Allen, to obtain a construction ■of the will. Will adjudged to be void. Defendants appeal.

Action by John Harmans Fisher and another against George H. Holler to recover the sum of $880.20, with interest from November 19, 1890, being a balance claimed to be due plaintiffs upon the purchase and sale of certain securities for the defendant’s account. From a judgment for plaintiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Herman Schuler against the Third-A venue Bailroad Company to recover damages alleged to have been sustained by plaintiff while a passenger on one of the cars of defendant’s road. The jury rendered their verdict in favor of plaintiff in the sum of $300, and defendant appeals.</p> <p>The complaint alleges that on the 22d day of August, 1888, he was a passenger on one of the cars of defendant’s road, then in the care of defendant’s servants, viz., a conductor and driver, who had the management and control thereof; that, while plaintiff was in the act of alighting from the car, said defendant and its servant, the driver, so carelessly and negligently managed the said car that the handle of the brake of said car forcibly struck the plaintiff, “whereby the said plaintiff was greatly injured, to-wit, * * * whereby said eye became closed, and for several weeks remained wholly or partly closed, and wholly useless; and that by reason thereof the said plaintiff suffered intense pain, and is still suffering pain, and for a period of three weeks since the said 22d day of August, 1888, was sick and disabled, and injured in health, was prevented from attending to his business, and was subjected to expense in attempting to cure himself; to his damage, as he is informed and believes, in the sum of five hundred dollars. Wherefore plaintiff demands judgment for the wrong and injury aforesaid, and that it pay damages to plaintiff to the amount of five hundred dollars, besides costs and disbursements.” Defendant in its answer, admitting its incorporation, denies, upon information and belief, that plaintiff, on the 22d day of August, 1888, received any injury, etc., by, through, or on account of the negligence or carelessness of the defendant, its agents or servants, each, every, or all of them.</p>

<p>Appeal from trial term.</p> <p>Action by Jennie Fisher against Robert B. Monroe and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Practice—Effect of Motion to Dismiss—Nonsuit.</p> <p>Where defendants move to dismiss the complaint without resting their case they will be entitled to a nonsuit, and not to a dismissal on the merits, so that, on appeal, the evidence must be construed most favorably for plaintiff.</p> <p>2. Mechanic’s Lien—Unfinished Work—Acts of Owner.</p> <p>A carpenter who, having nearly finished a building contract, is reproached for being a swindler, knocked down by the owner, and ordered never to come into the building again, may enforce his lien for the work already done without completing the same, though notified so to do by the owner.</p>

<p>Opening Judgment^Reaugument of Motion—Estoppel of Plaintiff.</p> <p>Plaintiff’s right to a reargument and resettlement of an order opening a judgment by default will not be lost by their acceptance of costs ordered to be paid by defendant, receiving his answer, and excepting to the sufficiency of sureties to the undertaking for the opening, under Code Civil Proc. § 734, which provides that the court may “in its discretion” relieve a party from an “order” taken against him through his mistake, inadvertence, surprise, ” etc.</p>

<p>Appeal from special term.</p> <p>Action by Edward Duffy against William W. Byer on an account stated. From an order denying a motion for a bill of particulars, defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by Hans E. C. Felix against Mary L. Vanslooten. From an order allowing plaintiff to discontinue his first cause of action, defendant appeals.</p>

Action of replevin by Jacob Klee and others against Hugh J. Grant, sheriff, etc. The complaint was dismissed and plaintiffs appeal.

<p>Assignment—Collateral Security—Rights op Assignor.</p> <p>Plaintiff assigned a claim against the city of New York to defendant bank, to be collected, and applied to plaintiff’s indebtedness to the bank and others, and the balance, if any, returned to plaintiff. The bank in turn assigned the claim to its attorney, for collection, and he, on collection thereof, retained §1,000 as compensation. Held, that the bank was liable to plaintiff for the sum so retained.</p>

<p>Appeal from trial term.</p> <p>Action by John Bell and another against James McNiece and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from special term.</p> <p>Action by Martin Simons against Arthur A. Hearn and others. From an order substituting the sheriff as defendant, plaintiff appeals.</p>

Action by Elizabeth F. Floyd, administratrix, etc., of David Van Horne Floyd, deceased, against Edwin Clark and another. Motion to confirm the referee’s report distributing a surplus arising on a foreclosure sale of land under a mortgage.

<p>Appeal from judgment on report of referee.</p> <p>Action by Cornelius W. H. Biting against Charles W. Dayton. From a judgment for plaintiff, defendant appeals.</p>

Action by Isaac Fromme against Abraham Lisner to recover commissions for the sale of real estate. The court granted an order allowing defendant an inspection of an alleged copy of a contract referred to in the complaint. Plaintiff appeals therefrom.

Exceptions from circuit court, New York county. Action by Bridget Healey, as administratrix of Patrick Healey, against James B. Smith, to recover damages for wrongful death. The trial court dismissed the complaint on the evidence. Plaintiff excepts.

Petition by William A. Poste, deputy attorney general of New York, for an order restraining the Globe Mutual Benefit Association from carrying on business, and for other relief. ' Order granted restraining the company from continuing to insure minors. The company appeals.

Action by Fannie Grossman against Cortland H. Dodd, as treasurer of Dodd & Childs’ Express, for damages to baggage delivered to defendant for transportation. Defendant appeals from a judgment for plaintiff, entered upon the report of a referee.

Action by Adolph Kaempfer against John J. Gorman, as sheriff, etc., for conversion. Defendant appeals from part of an order denying a motion for an open commission.

Appeals from judgment on report of referee. Three actions by Mary A. Caraher, as executrix of Patrick Caraher, deceased, and others, against the Royal Insurance Company of Liverpool, the Home Insurance Company, and the Springfield Fire & Marine Insurance Company, respectively, and three actions by Mary A. Caraher, as executrix of Patrick Oaraher, deceased, against the Standard Fire Insurance Company, the Newark Fire Insurance Company, and the American Central Insurance…

Action by Sarah E. Mellen against Abner Mellen and others for partition. Plaintiff appeals from an order denying a motion for a bill of particulars of a claim of $2,000, made by A. C. & M. H. Ellis, as former attorneys for plaintiff in the action.

Action of replevin by Ezra C. Dillingham against James A. Flack, sheriff of the city and county of Mew York, and Hugo Meyer. Plaintiff appeals from an order denying a motion fora new trial, upon the grounds of surprise and newly-discovered evidence.

■ Proceedings for the opening of Lexington avenue. The Hew York Elevated Bail way Company appeals from an order denying a motion to vacate and set aside the report of commissioners of estimate and assessment and the proceedings for opening.

<p>1. Condemnation Proceedings—Measure of Damages.</p> <p>In taking land for a street opening, the measure of damage to a building thereon, a part of which is taken, is the difference between the value of the building before the taking and the value of the remaining portion after the street is opened, and in making awards for land the benefit should be assessed on the land benefited, and not considered with reference to the land taken.</p> <p>2. Same—Award—When Allowed.</p> <p>Property owners should not be allowed an award from the time of confirmation of the commissioners’ report, but from the time of filing, where the delay has been occasioned by their conduct.</p>

In the matter of opening Lexington avenue from 97th to 102d street. In re Stephen H. Thayer. The executors of Stephen H. Thayer appeal from an order of commissioners of estimate and assessment.

Action by Sarah E. Mortimer against Mary Ann Chambers, William F. Chambers, and William F. Fardon to charge real estate devised by Louisa F. Fardon with her debts. From a judgment In plaintiff’s favor, by the court sitting without a jury, defendants appeal.

Replevin by Ezra C. Dillingham against James A. Flack,, sheriff of the city and county of Hew York, and Hugo Meyer. Plaintiff appeals from a judgment for defendants entered upon a verdict directed by the court.

<p>Right to Jurt Trial—How Waived—Joinder of Causes of Action.</p> <p>Where plaintiff includes in his complaint a cause of action of which he is not entitled to jury trial as well as one of which he is so entitled, he cannot, as a matter of right, demand a jury trial.</p>

Action by Samuel Louis and another against Julia Belgard, Eugene Fishel, Willard P. Reid, and others, to set aside alleged fraudulent transfers made by Simon Belgard, deceased, in his life-time, and to compel defendants to account for the proceeds of such transfers. Plaintiffs appeal from an order and interlocutory judgment sustaining a demurrer to the complaint.

<p>1. Divorce—Proof of Marriage—Cohabitation and Acknowledgment.</p> <p>Plaintiff sought a divorce from his wife on the ground of a prior existing marriage on her part. The defense was the invalidity of such prior marriage, in that the husband, at the time thereof, had been previously married in Sweden, which marriage was in force at the time of defendant’s second marriage. There was no record evidence of the marriage in Sweden, but it was shown that the alleged husband cohabited with a woman there as his wife, held her out to the world as such, that she was publicly recognized as such, and that unless such the law would not have allowed their cohabitation. Held sufficient to impose on plaintiff the burden of rebutting the presumption of marriage arising from those facts.</p> <p>0. Same—Foreign Laws.</p> <p>In such case, there being no allegation in the pleadings and no proof offered showing that the law of Sweden and that of New York as to the solemnization of marriages was different, the referee erred in assuming, from testimony showing the custom in Sweden of entering marriages in a parish register, that the law of Sweden required such entry, and in holding that, for want of proof of such entry, the marriage was not shown. ^</p>

<p>Appeal from special term, Mew York county.</p> <p>Action by Anna B. Stewart against the Union Mutual Life Insurance Company on a life policy. A demurrer to complaint was overruled, and defendant appeals.</p>

Action by Henry George Dunstan against Cecil C. Higgins on a judgment of an English court. The court denied a motion for a commission to take testimony, and rendered judgment for plaintiff. Defendant appeals.

<p>Fraudulent Conveyances—Rights oe Creditors—Commercial Agencies.</p> <p>A mother gave to her sou a letter, addressed to whom it might concern, stating that she had loaned him 810,000, “to be paid back at his option, and leave same to him at the risk of his business for five years. ” This letter was shown to the commercial agencies, and, through them, to one who sold the son a large amount of goods on the faith thereof. In less than one year the son became insolvent, confessed judgment in his mother’s favor for the amount of the loan, and his goods were sold on execution. Held, that such judgment was a fraud on the creditor, and he was entitled to recover the amount of his claim from the mother, to be paid out of the proceeds of the sale.</p>

Action by William B. Perry and another against Albert D. Boomhauer. From an order denying a motion to change the place of trial, defendant appeals.

<p>Deposition—Appointment of Commissioner—Suggestion by Witness.</p> <p>The mere fact that the suggestion of the name of a certain person in a foreign country to take testimony as comissioner was made by the person there whose testimony was to be taken, will not, of itself, invalidate the appointment of such commissioner.</p>

Action by Francisco Roca and another against Anna D. Byrne, administratrix of Daniel Byrne, deceased, and another. From an order continuing pendente lite an injunction restraining the Corn Exchange Bank from paying out certain moneys on deposit with the bank, defendant Byrne appeals.

<p>Appeal from special term, New York county.</p> <p>Action by John McOlave against Simon Sterne and another. From a judgment for plaintiff, defendant Sterne appeals.</p>

<p>1. Master and Servant—Injuries—Negligence oe Co-Servant.</p> <p>In an action against a railroad owner by an employe to recover damages for personal injuries, it appeared that plaintiff’s injuries resulted from defects in a handcar on which he was returning from work. The car, when originally furnished, was fit for service, but got out of repair. Meld, that the failure of those using the car—plaintiff’s fellow-servants—to report its condition, and to request defendant to put it in order, constituted negligence on their part affecting plaintiff.</p> <p>2. Same—Instructions.</p> <p>In such case the court erred in virtually instructing the jury that plaintiff was entitled to recover if he had not personal knowledge of the condition of the car, nO' matter how negligent his fellow-servants may have been in using the car, or in placing it in front instead of the rear of a moving train of similar cars.</p>

Action by Edward J. King, Jr., and another against Albert Jacobson arid others, to recover a lot of sealskins obtained from plaintiffs under false representations. From a judgment for plaintiffs, defendants appeal.

Action by the First national Bank of Bondout against Jose F. Havarro and others. From an order denying a motion for an injunction, Samuel G. Met-calf, receiver, appeals.

<p>Claim against Decedent’s Estate—Sufficiency of Evidence.</p> <p>Where evidence to support the finding of a referee in respect to a claim against a decedent’s estate for conversion of personal property is insufficient, unsatisfactory, and slight in its nature, and consists largely of testimony by plaintiff as to personal transactions between himself and defendant’s testator, concerning the ownership of the property which was in decedent’s possession for years prior to his death, a judgment thereon should be reversed.</p>

Action by the Sixth-Avenue Railroad Company against the mayor, aider-men, and commonalty of the city of New York to have an assessment declared not a lien upon plaintiff’s property, and to restrain proceedings to enforce or collect the same. Defendant appeals from an order continuing an injunction.

<p>Appeal from circuit court, Hew York county.</p> <p>Ejectment by Evan Jones against Morgan Jones and Ann, his wife. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Elevated Railroads—Benefits to Property—Findings—Inferences.</p> <p>A referee found that defendants’ elevated railway station brought a great number of people into the street opposite plaintiff’s premises, and increased the traffic there, but refused to find that those facts were of special benefit to plaintiff. Meld, no error, the referee not being bound to find inferences from his findings of fact.</p> <p>i. Same—Insufficient Objection to Testimony.</p> <p>Where part of the answer of a witness was responsive and part not so, the court properly overruled a motion to strike out the whole answer.</p> <p>8. Same—Evidence.</p> <p>The referee properly allowed one of plaintiff’s witnesses to state the reasons why he (witness) changed his building in the same street into an hotel, both being affected by defendants’ road, and the reasons given tending to corroborate plaintiff’s evidence as to the manner in which her premises were injured.</p>

Petition by Paul Gantert, a creditor, to obtain a sale of the real estate of William A. Juch, deceased, for the payment of debts. From an order refusing the application petitioner appeals.

Action by George F. Hodgman against Stephen T. Barker. Plaintiff was an attaching creditor, and the National Bank also issued an attachment against the property of the same defendant. Daniel E. Sickles, as sheriff, had collected a sum of money under plaintiff’s attachment and execution.

<p>Appeal from special term, Hew York county.</p> <p>Action by Marx Ottinger and another against the Hew York Elevated Railroad Company and another. From a judgment for plaintiffs, defendants appeal.</p>

Separate actions by Somerville P. Tuck, William W. Wilshire, Jr., as ancillary administrator of William W. Wilshire, and Henry Amy, against Jerome F. Manning. The plaintiffs Wilshire and Amy, in their respective actions, appeal from an order obtained by plaintiff Tuck, in his suit, requiring Hugh J. Grant, sheriff, to take an attachment and execution from the flies of the county clerk, cancel the returns thereon, and proceed thereunder according to law.

Proceedings for the opening of 181st street, between Tenth and Eleventh avenues. Levi P. Morton and George Bliss appeal from an order confirming the report of commissioners of estimate and assessment in said matter.

Action by the Holland Trust Company of Hew York, trustee, etc., against Isabella V. Hogan and others, to foreclose a mortgage. From an order denying a motion to set aside a foreclosure sale, defendants appeal.

Proceeding by the people, on the relation of Henry Day, against the tax ■commissioners, to vacate an assessment on personal property.

Action by Gabriel Schwab and another against Thomas F. Kaughran and another to set aside an assignment for the benefit of creditors. Judgment for plaintiffs.

Action by Henry B. Blanchard and another, executors of Theodore A-Blanchard, deceased, against Susan Jefferson in her own right and as executrix of John J. Jefferson, deceased.' From an order requiring the complaint to be made more definite, plaintiffs appeal.

Action by Benjamin L. Conde, administrator of Hannah Ham, deceased, against Hiram Wiltsie and another, executors of Ambrose Wiltsie, Jr., deceased. From a judgment for plaintiff, defendants appeal.

Action by Frank D. Schuyler against Josephine M. Schlicht, impleaded with Paul J. Schlicht and others, to determine the ownership of certain stock. Defendant Josephine M. Schlicht appeals from an order and interlocutory judgment overruling a demurrer to a supplemental complaint.

Action by Emma Stanley against the New York Elevated Railroad Company and another to restrain the maintenance and operation of a railway. Judgment for plaintiff. Defendants appeal.

Proceedings for the opening of Alexander avenue in the city of Hew York between Third avenue and Harlem river. From an order confirming the report of commissioners of estimate and assessment the Harlem River & Portchescer Railway Company appeals.

Action by Joseph Marrone against the New York Jockey Club to recover for breach of a contract for blasting and excavation. Defendant appeals from an order denying a motion to strike out certain allegations of the complaint as irrelevant.

Application by Grove Webster for a writ of habeas corpus to review the commitment of the relator to the custody of William T. Van Tassel, sheriff of the county of Ulster, under a warrant issued by the recorder of the city of Kingston charging relator with a refusal to obey a summons issued by a committee of the common council of said city.

Action by John Fitzpatrick against the New York Elevated Railroad Company and the Manhattan Railway Company to recover damages for the erection and maintenance of defendant’s elevated railroad in the street in front of plaintiff’s premises, and for an injunction.

<p>Appeal from special term, New York county.</p> <p>Action by Gilbert M. Husted against Augustus Cruikshank, trustee, etc. From an order vacating an order for security for costs, and from an order denying a motion to vacate an order for the examination of defendant, defendant appeals.</p>

Appeals from special term, Hew York county. Actions by Francis E. Johnson, individually, and as executor and trustee of Stephen Johnson, deceased, Margaret Johnson, and Catharine Baylis, against the Hew York Elevated Railroad Company and the Manhattan Railway Company, to enjoin the running of trains in front of their premises.

Appeals from special term, Hew York county. Certiorari on the relation of Henry Day, as trustee of Edwin D. Morgan, as trustee of Caroline E. Bates, as trustee of H. H. Henry, as trustee of 0. M. Henry, and .as trustee of A. K. Waterman, five cases, against Edward P. Barker, Thomas L. Feitner, and Edward L. Parris, as commissioners of taxes and assessments of the city of Hew York, to review their proceedings in assessing certain personal property for the purposes of taxation.

<p>Appeal from special term, Hew York county.</p> <p>Application for a writ of mandamus on the relation of Robert B. McCully against the commissioners of excise of Hew York city.</p>

Appeals from judgment on report of referee. Actions by Lewis Seasongood and others, executors of Jacob Seasongood, deceased, against the New York Elevated Railroad Company and another.

<p>Appeal from special term, Dutchess county.</p> <p>Action by James Kent, Edwin C. Kent, and William Kent, as executors of James Kent, against the Church of St. Michael, for specific performance of a contract to sell land.</p>

<p>On motion for reargument.</p>

<p>On motion for reargument.</p>

<p>Appeal from city court, general term.</p> <p>Action by Mary A. Hall against Thomas Canary.</p>

Action by Jacob Bookman against the New York Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from maintaining and operating an elevated railroad.

<p>Appeal from judgment on report of referee.</p> <p>Action by Margaret Arnold" against the Metropolitan Elevated Railroad Company and the Manhattan Railway Company for an injunction to restrain the maintenance and operation of defendants’ elevated railway in the street abutting plaintiff’s premises, and for damages. Defendants appeal from a judgment entered upon the report of a referee in favor of plaintiff.</p>

Action by Dedrick H. Bultman against the Yew York Elevated Railroad Company and the Manhattan Railway Company for an injunction to restrain the maintenance and operation of defendants’ elevated railroad in the street ab.utting plaintiff’s premises, and for damages.

Action by Frederick Esper against the Yew York Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from maintaining and operating their railway in front of plaintiff’s premises.

Action by Joseph A. Leinkauf and another against Josiah Lombard and others to recover for goods lost while in defendants’ care under a contract for shipment.

<p>Appeal from special term.</p> <p>Action by Benjamin B. Johnston against the Hew York Elevated Bailroad Company, the Manhattan Bailway Company, and the Metropolitan Elevated Bailroad Company, to restrain defendants from maintaining their railroad in front of plaintiff’s premises.</p>

<p>Appeal from jury term.</p> <p>Action by Julia Menike against the Manhattan Railway Company for personal injuries. Verdict and judgment for plaintiff.</p>

Action by Katharine Nueman against the New York Elevated Railroad Company and the Manhattan Railway Company for an injunction to restrain the maintenance and operation of defendants’ elevated railroad in the street abutting plaintiff’s premises, and for damages.

<p>Appeal from jury term.</p> <p>Action by William B. Norman against Solomon Johnson for breach of a contract to employ him as an auctioneer.</p>

Action by Emerson A. Phelps against the Metropolitan Elevated Railroad Company and the Manhattan Railway Company to-restrain the maintenance and operation of defendants’ elevated railroad in the street abutting plaintiff’s premises.

Action by Thomas G. Patterson against William McIlroy for an assault. Verdict and judgment for defendant, and order denying motion for a new trial.

<p>Appeal from trial term.</p> <p>Action by Frederick Zimmerman against the Broadway & Seventh Avenue Railroad Company, for personal injuries. Verdict and judgment for plaintiff.</p>

Action by James H. Shady against the Metropolitan Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from maintaining and operating an elevated railroad in front of plaintiff’s premises.

Action by Annie C. Sperb against the Metropolitan Elevated Railway Company and the Manhattan Hail way Company. The judgment awards plaintiff $1,457, with interest from January 21, 1891, to date of judgment, for past damages sustained by her on account of the operation and maintenance of defendants’ elevated railroad in front of premises No. 924 Sixth avenue, besides $130.18, her costs, and $150, granted as an extra allowance.

<p>Concurring opinion.</p>

<p>Appeal from trial term.</p> <p>Action by Mary J. Rudolph against James McCaldin, for injuries to personal property. Verdict and judgment for plaintiff.</p>