Volume 170 — New York Reports

This action is in replevin, for the recovery of ten bonds claimed to be the property of the plaintiff and to be wrongfully detained by the defendant. The answer set up, as an affirmative defense, that the bonds were negotiable securities and had been pledged to the defendant as collateral security for a loan of money. The bonds were part of a series issued by the city of Yonkers, in this state, under authority of chapter 297 of the Laws of 1875.

Trial Term subject t.o the opinion of the Appellate Division. The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to sustain the burden of proving the genuineness of the indorsement of the payee of the draft, and without such proof it could not recover. (Mead v. Young, 4 T. R. 28; Palm v. Watt, 7 Hun, 317; A. I. Co. v. Federal Bank, 45 U. C. Q. B. 215; Dodge v. Nat. E. Bank, 30 Ohio St. 2; U. S. v. O, C. Sav.

<p>Appeal — Correction of Order Failing to Comply with Direction of Appellate Division. Where the Appellate Division has directed that a peremptory writ of mandamus should he granted requiring a board of supervisors to allow claims for services rendered ón a quantum meruit “ at such sums as are proper,” an order entered thereon requiring their allowance at a specified amount is erroneous, and, upon an appeal therefrom, will be corrected so as to conform to the direction of the Appellate Division.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The subject of reinsurance was the plaintiffs terminal risk on naval stores without regard to the manner of the storage of such naval stores. (Jackson v. S. P. F. & M. Ins. Co., 90 N. Y. 124.) In the construction of any contract or instrument whatever, intention controls and overrides mere forms of expression in case of antagonism. (Tillit v. Mann, 104 Fed.

<p>Constitutional Law — Validity of Chapter 89, Laws of 1901, Appointing Commissioners to Erect Court House in the City of Utica. Chapter 89 of the Laws of 1901, 'appointing specified residents of the county of Oneida a board of commissioners to erect a court house in the city of Utica, is not in violation of either section 2, article 10 of the Constitution, providing for the election or appointment of county officers, or of section 27, article 3, relating to local legislative powers, since the legislature has power to appoint persons to carry out a local improvement who are not thereby constituted county officers, but become the agents of the state, although the power to make such improvements is at the time vested in local authorities elected by the people.</p>

Rogers, deceased. On the 18th of August, 1884, Carlton H. Rogers, a resident of the village of Palmyra, died leaving him surviving a married daughter and her three sons, who were then infants, but are now of age. These four persons are the appellants in this proceeding, while the respondents are the executors of the will of Mr. Rogers, whereby he created five trusts.

The nature of the action and the facts, so far as material, are stated in the opinion. The limit of responsibility undertaken by the defendant as a carrier of the goods in question is defined by the bill of lading, under which in no event could plaintiffs recover in excess of fifty dollars, the agreed value of the goods.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The court has jurisdiction upon this appeal to review the determination of the Appellate Division.

The nature of the action and the facts, so far as material, are stated in the dissenting opinion. The defendants were erroneously allowed to put in evidence as res adj'udicatet the whole of the record of a former 'suit between these parties. (Genet v. D. & H. C. Co., 122 N. Y. 600; 163 N. Y. 177.) The judgment in the former action was upon the merits and the judgment record was properly admitted in evidence.

granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinions. The plaintiffs are entitled to an injunction by comparison of their equities with those of the defendants. (People v. Gillson, 109 N. Y. 389; Slaughterhouse Cases, 16 Wall. 116; Matter of Jacobs, 33 Hun, 377; 98 N. Y. 98; Davis v. Zimmerman, 91 Hun, 489; C. d'A. Co. v. Miners' Union, 51 Fed. Rep. 260; Penal Code, § 168; Cumberland v. Glass Blowers, 46 Atl.

The facts, so far as material, are stated in the opinion. The will itself and thé surrounding circumstances clearly show it was the intention of the testator to devise and bequeath all her property to her daughter Elizabeth F. Ametrano.

<p>Negligence—Erroneous Charge as to the Veracity oe Witness. An instruction upon the tiial of an action for negligence that a witness as to an important fact had either perjured himself or had told the truth, thus forcing the jury to find one way or the other upon the issue, without any opportunity for finding that he might have been mistaken, constitutes reversible error.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The state of the proof was such that the admission of any illegal evidence upon the issue of delivery, or the rejection of any legal evidence upon the question of intent, demands a reversal of the judgment. (Heinemann v. Heard, 62 N. Y. 448; Conklin v. Conklin, 30 Hun, 278; Jones v. Perkins, 29 App.

The facts, so far as material, are stated in the opinion. The order of the Appellate Division directing the appointment of commissioners herein, and the order of <that court affirming the order of the Special Term appointing commissioners pursuant to such direction, are not reviewable by this court. (Code Civ. Pro. §§ 190,1316, 1317, 1350, 1358; Matter of Comrs. of Central Park, 50 N. Y. 493.)

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 19, 1900, which affirmed a judgment of a Trial Term reforming a contract of purchase and sale of land.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 9, 1899, reversing a judgment in favor of defendants entered upon the report of a referee and granting a new trial.</p>

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 21, 1901, which reversed a judgment in favor of plaintiff, entered upon a verdict, and an order denying a motion for a new trial and granted a new trial. The motion was made upon the ground that the appeal is from an order granting a new trial upon the facts and upon the law, which order is not appealable to the Court of Appeals.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 20, 1901, which reversed, vacated and set aside a decision of the common council of the city of Niagara Falls to open an extension of Nineteenth street in said city across the tracks and right of way of the respondents herein.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 14, 1900, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial.</p>

Supreme Court in the fourth judicial department, entered November 21, 1900, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court and an order denying a motion for a new trial.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 16, 1900, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on tidal at Special Term and granting a new trial.</p>

19, 1901, affirming a judgment in favor of plaintiff entered upon a- verdict and an order denying a motion tor a new trial.

<p>Appeal from a judgmént of the Appellate Division of the Supreme Court in the first judicial department, entered March Y, 1901, modifying, and affirming as modified, a judgment in favor of plaintiff entered upon the report of a referee.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 8, 1901, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 6, 1901, reversing a judgment in favor of plaintiffs entered upon the report of a referee and granting a new trial.</p>