Volume 18 — New York Appellate Division Reports

Appeal by the defendants, William D. Palmer and Annie S. Hoffman, as .executors, etc., of. Arthur T. Hoffman,'deceased, from •an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of December, 1896, vacating a judgment in favor of the defendants entered in the action and granting the plaintiff’s motion for a new trial made on a case and exceptions.

Appeal by the petitioner, The Trustees of .the New York and Brooklyn Bridge, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of. the clerk of the county of Kings on the 20th day of January, 189Y, setting aside the report of commissioners of appraisal.

Appeal by the plaintiff, Angeline Odell, from a judgment, of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 2d day of January, 1897, upon the dismissal of the complaint directed by the court after á trial before' the court and a jury.

Appeal by the relator, Cornelia P. Trowbridge, from .an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 13th day of March, 1897, denying the relator’s motion for an order reducing an assessment levied upon her property by the respondents, and directing a reference to take proof of the value of the property.

Appeal by the defendant, The City of Brooklyn, from a final judgment of the Supreme Court in favor of' the plaintiffs, entered in the office of the clerk' of the county of Kings on the 20th day of July, 1896, upon the report of a referee, and also from an interlocutory judgment, entered in said clerk’s office on the 22d day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, John Murphy, from a judgment of the Supreme Court in favor of the plaintiff, entered in- the office of the clerk of the county of Kings on the 22d day of April, 1896, upon the report of a referee.

Appeal ■ by the plaintiff, Harry Allen, from a judgment of tlie Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 29th day of June, 1896, upon the decision of the court rendered after a trial at the' New York Special Term dismissing the complaint upon the merits. This appeal- was transferred from the first department to the second department..

Appeal by the plaintiff, Daniel A. Doran, from ■ a judgment of the City Court of Yonkers in favor of the defendant, entered in the office of the clerk of said court on the 24th day of November, 1896, upon the dismissal of the complaint directed by the court after a. trial before the court and a -jury.

<p>Mutual benefit associations — by-law giving a right, to cancel a certificate — until exercised it does not prevent a recovery thereon.</p> <p>A by-law of a mutual benefit association, providing that the association shall have power to call in and cancel a certificate upon certain terms, stated that “Until such power be exercised the certificate shall remain in force.”</p> <p>Held, that until the power to call in and cancel the certificate was actually exercised this by-law presented no obstacle to its enforcement.</p>

Appeal by the plaintiff,. May Isabel Miles, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of November, 1896^ upon the dismissal of the complaint directed by the court after a trial before the court and a jury. The action was brought to recover damages for personal injuries sustained by the plaintiff by reason of alleged negligence in the management of the defendants’ road.

Appeal by the defendant, Sylvester' H. Kneeland,. from a- judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1896, upon the verdict of a jury, and also from ap order entered in said clerk’s office on the Yth day of-May, .1896, denying the defendant’s motion for a new trial made upon the rnimites. This appeal was transferred from the first department to the second department. - ■ •

Appeal by the plaintiffs, Robert B. Hull and others, as executors, etc., of Joseph Wild, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 29th day of '.January, 1897, upon the decision of the court rendered after- a trial at the Kings County Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendant, Lewis Klein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th-day of January, 1897, .upon the decision of the court; rendered after a trial at the Westchester Special Term.</p>

<p>Appeal by the defendant, The Westchester Electric Railway Company, from a .judgment of the Supreme Court in favor' of the plaintiff, entered in the office of the cleric of the county of Westchester on the 21st day of October, 1896, upon the verdict of a jury, and also from an order bearing date the 31st day of October, 1896, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. .</p> <p>The action was based upon the defendant’s alleged negligence.</p> <p>The following diagram shows the position of the defendant’s tracks .on which the accident occurred:</p> <p> </p>

<p> Joint adventure in the purchase of real property—good faith demanded of the parties towards each, other—a sale without iwtice is improper. </p> <p>Where persons, although not partners in a strict legal sense, are associates in a real estate speculation, based upon an agreement partly oral and partly written, the principles of the law of partnership apply, and their position towards each other is fiduciary in its nature and calls for the mutual maintenance and exercise of the greatest good faith.</p> <p>Where one of two persons, who have bought certain real estate under an agreement that it is to be carried by their joint contributions and ultimately sold for their joint benefit, after considerable advances have been made thereon by his associate, without giving specific notice to the latter of the time and place of sale, procures the sale of such premises by a third party, in whose name the title is carried, without any effort to realize the market value of the property, he is guilty of a violation of his duty to his associate.</p> <p>Circumstances tending to show that a sale so made was not made in good faith, considered.</p>

<p>Appeal by the defendants, William E. Kells and another, as executors, etc., of Thomas Kells, deceased, from a judgment of the County Court of Kings county in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 5th day of January, 1897, overruling their answer as frivolous, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 24th day of December, 1896, ■ directing the entry of said" judgment.</p>

<p>Reformation of the description in a deed, of a street who is not a bona fide purchaser.</p> <p>Where a conveyance to a village of a street already opened describes, because of a mutual mistake, a piece of land other than that embraced in the street as actually opened, the deed will be reformed, on discovery of the mistake, after the lapse of six years, as against a party who, in the interval, has purchased of the grantor of the street land embraced within the street as actually opened, when the street, as opened, was clearly visible, and such purchaser was shown, at the time of his purchase, a diagram upon which it was laid out, and he at first began the construction of a building with reference to the street as actually located, although he changed the plan of the building when he learned what the description in the deed to the village was, and when notified that he was wrong and must not build there, responded: “ I know it, but' they tell me I can claim it there.”</p>

Appeal by the plaintiff, Elmer S. Van Aiken, from a judgment of the Supreme Court in favor of- the defendant, entered in the office of the clerk of the county of New York on the 16th day of November, 1896, upon the dismissal of the complaint, directed by the court at the close of the plaintiff’s evidence, after a trial before the court and a jury. This appeal was transferred from the first department to the second department. .

Appeal by the plaintiff, Stephen A, Riley, from a judgment of the Süpréme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 8th day of February, 1897, upon the dismissal of the complaint upon the merits directed by the court at the close of the plaintiffs case after a trial before the court and a jury.

Appeal by the defendants, Mendel Samuel and others, comprising the firm of M. Samuel •& Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of October, 1896, upon the verdict of a jury, and also from an order bearing date the 28th day of October, 1896, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, John L.' Dailey and George M. Finney, Jr., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 9th day of April, 1897, granting an injunction restraining the defendants from the performance of a duty devolved .upon them by chapter 108 of the Laws of 1897.

<p>Justice’s judgment—power of the County Court over it — a receipt given under a misunderstanding —■ a ratification by one cannot affect the vested rights of others — it must be made with fiM knowledge of the facts.</p> <p>If there is any evidence to support' the judgment of a justice of the peace, the ■ County Court has no authority to reverse the judgment as being against the weight'of evidence.</p> <p>A receipt in full for the amount of a debt given upon the occasion of a partial payment thereon by the wife of the creditor, who is acting under a power of attorney for her husband and is unable to understand English, but signs it at the request of her husband’s foreman without comprehending the nature of the transaction, does not discharge the debtor from his obligation to pay the balance of the debt.</p> <p>A principal cannot ratify the acts of his agent to the detriment of persons whose rights have accrued and have become vested before the time of such ratification.</p> <p>Ratification presumes that the person ratifying has knowledge of all the facts.</p>

Appeal by William G. Camp from so much of a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 19th day of December, 1896, as modifies the report of a referee. Also, an appeal by Kelson Cross, as executor’, etc., of Calvin B. Camp, deceased, from the said decree, except from so much thereof as modifies the referee’s report.

Appeal by the defendant, Anne Claffey, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 5tli day of July, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of May, 1896j denying. the defendant’s motion for a new trial made upon the minutes

Appeal by the defendant, Albert F. Gesoheidt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office •of the clerk of the county of Westchester on the 26th day of May, 1896, upon the verdict of a jury directed by the court.

Appeal by the plaintiff, Eobert D. Buchanan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 31st day of - October, 1896, upon the dismissal of the complaint directed by the court after a trial before the court and a jury.

Appeal by the defendants, Loftus B. Hatton and others, from a judgment of the Supreme -Court in-favor pf -the plaintiff, entered in. the office of the clerk of the county of Kings on the 2d day of February, 1897, upon a summary application to the court, and also from an order entered in said clerk’s office on the 1st day of February, 1897, denying the defendants’ motion to stay proceedings on such judgment.

<p> Technical accuracy is not required in the specification of charges, made by a police commissioner against a patrolman. </p> <p>Where a’patrolman pleads guilty to a specification, which charges him with being in a liquor- saloon during “ his tour on patrol,” hut does not negative the exception contained in the police rule, and state that he 'was not there “ in the performance of police duty,” his conviction will not he reversed. ... Technical accuracy is not required in proceedings of this character taken hy ■ a police commissioner.</p> <p>CeRtiorari issued .out of the Supreme Court and. attested on.the 6th day of March, 1896, directed to Leonard R. Welles, commissioner of police and excise-of the city of Brooklyn, commanding him’to certify and return to the office of the clerk of the county of’ Kings all and singular his proceedings in regard to the removal of ’ the relator from membership'in the police;department of the .city of Brooklyn.</p>

Appeal by the defendant, The Brooklyn and Rockaway Beach Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on. the 5th day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>:Assault by a earner— rights of' a passenger where aca/r is too crowded for his entry— - effect of a city ordinance forbidding his standing upon the platform—effect of the acceptance by the company of his transfer ticket —a passenger should not board a crowded car. .....</p> <p>In an action for assault'brought against a company maintaining a street railroad, in a city, an ordinance of which provided that no person except motormen, conductors or police officers in uniform should be allowed on the front platform of a street car in operation, it appeared that a passenger having a transfer ticket from one of the defendant’s lines boarded one of its cars by its front platform and surrendered his transfer ticket, after which he was directed by officials of -the road who were riding on the front platform to. enter the car; finding this to he impossible, he refused to leave the platform, and was thereupon ejected from the car. by force.</p> <p>Held, that the court properly charged the jury that if the plaintiff's ticket had been taken from him by the conductor and there Was not sufficient room in the body of theear to permit him to enter, 'his.-cjéction- was.'illegal, but: that-if there was room in the car he was bound to enter it, his removal from the car was lawful and the defendant was entitled to a verdict unless excessive force was employed. . - -</p> <p>A railroad corporation which has accepted a passenger’s transfer ticket cannot remove him from its car -until it has either returned, or tendered a return- of," .'the ticket to him. .</p> <p>A transferred passenger has not necessarily the right to board the first car that ' approaches him on the line, regardless of- whether there is accommodation for him, and to force himself into a dangerous or improper position upon the car; his duty is to wait until a car approaches in proper condition to receive Mm, and should no such car appear, he can maintain an action"against the. corporation for .its'breach.of its contract to carry him.</p>

<p>Appeal by the defendant, James C. Truman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 19th day of August, 1896, upon the-decision of the court rendered after a trial at the Westchester Special Term.</p>

<p>■' Appeal by. the defendant, George E. Hager man, from "an order, of the Supreme Court, made at the Queens County Special Term, bearing date the 13th day of March, 1897, and entered in the office . of the clerk.of; the county of ■ Queens striking out certain j3ortions of the defendant’s answer.</p>

Appeal by the plaintiff, Charles H. Duryea, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 20th day of July, 1896, upon the report of a referee.

Appeal by the defendant, John Claffy, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Kings on the 11th day of January, 1897, denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence.

Appeal by the defendant, Loda Y. Sanford, from an order of the Supreme Court, made at the Kings County Special Term and entered in the. office of the clerk of the county of Kings on the 5th day of March, 1897, adjudging the said defendant guilty of a contempt of court and imposing a fine upon him.

Appeal by the defendant, Robert J. H. Young, from a judgment' of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of -the county of. Queens on the 18th day of February, 1897, upon the verdict of a jury convicting him of the crime of grand larceny.

‘ Appeal by the plaintiff, Horace IT. Chittenden, as assignee, etc., of Alfrederick S. Hatch and another, from so much of an interlocu-' tory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the ■20th day of January, 1897,, upon the decision of the court rendered after a trial at the Kings County Special Term, as finds that the plaintiff and the defendant Collis P. Huntington are tenants in common of the…

Appeal by the defendant, the Bell & Bogart Soap Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of December, 1896, upon the decision of the court rendered after a trial at the Kings Special Term sustaining the plaintiffs demurrer to the second defense contained in the answer of the defendant.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of November, 1896, upon the verdict of a jury for $8,000, and also from.an order entered in said clerk’s office on the 29th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendánt, the Steinway Railway Company of Long Island City, from a judgment of the Cjounty Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 24th day of September, 1896, upon the verdict of a jury, and also from an order bearing date the 18th day of September, 1896, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louisa Iiaffner, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the_ county of Kings on the 7th day of January, 1897, upon the decision of the court rendered after a trial at the Kings Special Term, adjudging that certain persons, not parties to the action, have no interest in the premises described in the complaint. The action was brought to partition, certain real' property.

Appeab by the defendant, the Union Railway Company of Hew York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the’29th day of December, 1896, upon. the verdict of a jury, and also from an order entered- in said clerk’s office on the 19th day of January, 1897, denying the defendant’s motion for a new trial made ripon the minutes. The jury rendered a verdict in favor of the plaintiff for $7,500.

Appeal by the defendants, Mary E. Baker and others, frpm an interlocutory judgment of partition and sale of the Supreme Court in .favor of the plaintiffs,, entered in the office of the clerk of the county of King's on the 1st day of March, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.

- Appeal, by William R. Smith and others from an appraisal -and report of commissioners appointed in condemnation proceedings, under chapter 189 of the Laws of 1893, to acquire certain real estate for the purpose of providing for the sanitaiy protection of the sources of the water supply of the city of Hew York, - which report' bears date the 18 th .day of J une, 1895, and was filed in the.' office of the clerk of the county of Westchester on the 24th day of June, 1895, and…

<p>Appeal by the defendants, Adolph Simis, Jr., and others, as commissioners of charities and corrections of the city of Brooklyn, from an order of the Supreme Court, made at the Kings county Trial Term, upon the trial of issues arising on the return of an alternative writ of mandamus, entered in the office of the clerk of the county of Kings on the 30th day of January, 1897, directing that a peremptory writ of mandamus issue to the defendants, commanding them to restore the relator to his position as a tinsmith in the department under their charge, and also from an order entered in said clerk’s office on the 30th day of January, 1897, denying the defendants’, motion for a new trial made upon the minutes. .</p>

<p>Appeal by the plaintiffs, William Dempsey and another, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendants,, éntered in the office of the clerk of said court on the 6th day of November, 1896, upon the decision of the court rendered after a trial at an Equity Term thereof, which judgment dismissed the action on the merits with costs in favor of the defendants Gilbert, Kiley and Dumb.</p> <p>This appeal was transferred from the first department to the -second department.</p>

■ Appeal by the defendant,. The Brooklyn Heights Railroad Company from a judgment of theSupreme Court in favor of the plain- , tiff, entered in .the office of the clerk of the. county of Kings on the 10th day of- October, 1896, upon the verdict of a jury,' and also from an order entered-in said clerk’s office on the 27th day of October, 1896, denying the. defendant’s motion for a new trial made ■upon the minutes.

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

Appeal bj George Macculloch Miller and another,, as trustees, -etc., of Levin R. Marshall, deceased, from a decree of the Surrogate’s Court of Westchester county, entered in the office of said Surrogate’s Court on the 30th day of December, 1896, upon the decision of the court in the proceedings instituted by the appellants, •trustees, for a voluntary accounting.

Appeal by the defendant, The New England Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 16th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes. . ;

Appeal by the defendant, Adolphus Doncourt, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of December, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Henry Poulsen, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of December, 1896, upon the dismissal of his complaint upon the merits, by direction of-the court, after a trial before the court a,nd a jnry- The action was brought to recover damages for the loss of the services of the plaintiff’s infant child who was injured by-the alleged negligence…

Appeal by the defendants,. William M. Levering and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of November, 1896, denying the defendants’ 'motion for a new trial made upon the minutes.

-' ■ Appeal by the defendant, William M. Halsted, from a judgment 'of the County Court of Kings county- in -favor' of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1897, lipón the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by tbe defendants, George H. Huber and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the. 20th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the '7th day of December, 1896, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Charles E. McDonnell, from an interlocutory judgment of the Supreme Court in favor of-the plaintiff, entered in the office of the clerk of the county of Kings on the 2étli day of December, 1896, upon the decision -of the court, rendered after a trial at the Kings Special Term, sustaining the plaintiff’s demurrer to the third separate and affirmative defense set, up in the defendant’s answer. . ■ .

<p> Lease of premises foi'immoral purposes—no rent can be recovered therefor—parol evidence of the knowledge of the landlord—proof of the use by the lessor of other houses for the same purpose. </p> <p>Knowledge by a lessor when he makes a lease that the premises are to be used as a bawdy house will defeat an action upon the lease for rent.</p> <p>Notwithstanding the fact that the lease is in writing and states that the premises . are “ to be used for a furnish-room house only,” the tenant may show, as bearing .upon the question of. the knowledge of the lessor when the lease was made, that the lease was a renewal lease, and that when, the lessor made the former lease he intended and understood that the premises were to be used for immoral purposes, and was afterwards advised that they were being so used.</p> <p>Evidence that the lessor had other houses in the vicinity in which he, through a housekeeper,- conducted an unlawful business of the same character, while not competent in support of- the charge of the lessor’s knowledge of the use to • which the tenant was to devote the particular premises in question in the suit, nor of his consent to such use, is competent as bearing upon the question of his intent in that respect, to be considered only when the- facts pertinent in . chief are found to have been established by other evidence:</p>

Appeal by the plaintiff, William Watts, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 27th day of January, 1897, upon the dismissal of his complaint by direction of the court, after a trial at the Kings county Trial Term, and also from an order entered in said clerk’s office on the 12th day of January, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Bankers’ Life Insurance Company of the city of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of December, 1896, upon the verdict of a jury.

Appeal by the defendants in the first above-entitled action,. Wü- . liam R. Lamb and Benjamin R. , Lamb, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of March, 1897, upon the decision of the court, rendered after a- trial at the Kings Special Term, directing the conveyance of real estate by the defendants to the plaintiff, and for rents of said premises.

Appeal by the defendant, the Village of Sea Cliff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 30th day of October, 1896, upon the verdict of a jury,' and also from an order entered in said clerk’s office on the 4th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Farmers’ Fire Insurance Company of York, Pennsylvania, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of February, 1897, conditionally setting aside the verdict of a jury in favor of the defendant and granting a new trial, and also from an order entered in said clerk’s office on the 20th day of February, 1897, denying the defendant’s' motion…

Appeal by the defendant, the Union. Railway Company of New York city, from a judgment of - the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings-on the 21st day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.

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

<p>Right of a tenant to remove trade fixtures and, machinery—- under what lease it exists — it. must be exercised before the expiration' Of his term, — the right of a-mortgagee of tile fixtures is similarly limited.'</p> <p>Macninefy or other appliances, placed by a tenant upon.leased premises for- the purposes of trade Or manufacture, do hot become a part of the freehold, but' remain personal property and may be removed by him before the expiration of his term.</p> <p>A lease, executed by the owner of certain premises of all the iron ore thereon and the right to mine the same, in which the lessee covenants among other things to timber the shafts, “which timbering shall, at the termination of this lease, or any renewal thereof, be regarded by the parties as fixtures,” and which further contains covenants providing that; in the event of a surrender of the lease, the lessee will permit a re-entry by the lessor, twenty days before actual surrender, for the purpose of enabling the lessor to install pumping machinery to keep the mine from filling with water, and that the lessee will, if the lessor so desires, at the expiration of the lease, or of any renewal lease, “sell to the lessor all the mining machinery, buildings and other erections” upon the premises at a valuation, and that if such purchase is not made, the lessee shall have sixty days from the actual termination of the lease, or that of any extension lease, in which to remove such machinery, buildings or other erections, indicates an intention that the mining plant to be erected by the lessee shall remain personal property, and that the lessee shall have a right to remove it, provided he exercises that right before the term expires, or in any event before yielding up possession of the leased premises; and a mortgagee of the machinery and trade fixtures acquires the right to remove them under the same circumstances. Where the lessee, however, fails to exercise such right, either, before or at the time of his ejection from the premises for non-payment of rent, and ncoaction to foreclose the mortgage is brought by the mortgagee until four months after such ejection, the-right of the mortgagee to remove the fixtures is lost. Goodrich, P. J., dissented,</p>

<p>Appeal by the plaintiff, Charles Luger, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of February, 1897, upon the decision of the court rendered after a trial at the Kings Special Term.</p>

<p> Duty of a trustee to show that his expenditures were necessa/i'y, and to keep accurate accounts. </p> <p>Where three persons enter upon the construction of certain houses, and agree that one of them shall act as treasurer, pay all bills and render an account to the others, he must show that the account which he renders and the expenditures which he claims to have made were correct, just and necessary, and if he fails to keep clear and accurate accounts all obscurities and doubts are to be resolved adversely to him.</p> <p>When such'a trustee is not entitled to commissions, or to costs in an action brought to compel him to account, considered.</p>

Appeal by the defendants, Henry H. Jackson and others, composing the firm of Peter A. H. Jackson’s Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of January, 1897, upon the verdict of a jury rendered by direction of the court, the jury having previously answered a certain question submitted to them, and also from an order bearing date the 30th day of December, 1896, and entered in…

Appeal try Erastus Van Houten, as executor of Edward G. Van Houten, deceased, from a decree of the Surrogate’s Court of the county of Rockland, entered in the office of said Surrogate’s Court on the 4th day of January,-1897, settling and adjusting his accounts as such executor.

Appeal by Erastus Van Houten from an order of the Surrogate’s Court of Rockland county, entered in the office bf said Surrogate’s Court on the 3d day of February, 1897, adjudging him guilty of contempt and fining him $3,134.94.

Appeal by Erastus Van Houten from an order of the Surrogate’s Court of the county of Rockland* entered in the office of said Surrogate’s Court on the 18th day of January, 1897, revoking the letters testamentary theretofore issued to him upon the estate of Edward G. Van Houten, deceased.

Appeal by the defendants, Sanford A. Purdy and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of November, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the plaintiff and by the defendants, Mary Ann Weelts and othersj judgment creditors, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of April, 1891, vacating and setting aside a judgment in their favor, entered in said clerk’s office on the 19th day of March, 1891, upon the report of a referee, and vacating and setting aside said referee?s report.

Appeal by the plaintiff, Julie C. Stivers, the mother of Harold Milton Wise, an infant, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the cleric of the county of Westchester on the 19th day of April, 1897, directing her to pay to' the defendant counsel fees and alimony pendente lite.

<p> Village- timstees-—duty of, to furnish a police justice a room for trials. </p> <p>.No statutory authority exists under which the board of trustees of the village of Nyack can be compelled to provide a police justice of that village with a permanent court room for the trial of police court actions arising before him. , •</p> <p>.Semble,- that, under circumstances which required an extended and important trial with many witnesses for a considerable period of time, the justice might be justified in procuring at the expense of the village a suitable room for that special occasion.’</p>

Appeal by the petitioner, Maude E. Kimball, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 8th day of March, 1897, denying-her application for letters of administration upon the' estate of Edward 0. Kimball, deceased, and for the revocation of the letters of administration issued upon said decedent’s estate to Harriet A. Kimball and John S.. James.

<p>Appeal by the defendants, Theodore Cocheu and others, as Trustees of the Methodist Protestant Church of the Village of Williatnsburgh, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of May, ,1897, directing the issuance of a .peremptory writ of mandamus.</p>

Appeal by the defendants, Louis Mesier and another, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 26th day of October, 1896, upon the report of a referee. •

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

Appeal by the relator, Owen J. Kavanagh, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 12th day of March, 1896, -denying his motion for a peremptory .writ of mandamus requiring, the respondents to- recognize him as a patrolman in their service and employment, and to restore him to the position of patrolman on the police force -of Long Island City.

Motion by the defendant, the Nassau Electric Railroad Company, for a reargument of an appeal by it from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, Michael J. Dady, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the. county of Kings on the 12th day of March, 1897, denying his application for a peremptory writ of mandamus commanding the defendants, as members of the commission constituted by chapter 639' of the Laws of 1895, to pay the amount alleged to be due to the relator upon a contract for constructing and grading Neptune…

<p>Probationary appointee of the Brooklyn police force — not entitled to a hearing when dropped at the end of his probationary term.</p> <p>The provisions of the charter of the city of Brooklyn (§ 7, tit. 11, chap. 583, Laws of 1888, as amended by chap. 695, Laws of 1893) enacting that all appointments of patrolmen on the police force shall be made for a probationary period " of six months, and that at the expiration of such probationary period the commissioner of police shall appoint to a permanent position all persons whom, during such probationary period, he shall ascertain to be competent to fill the position of'patrolmen, do not entitle one who has been appointed a probationary patrolman, and has been dropped from the rolls at the termination of his probationary term, to a trial or hearing upon the question whether he should have been dropped, or upon the question of his competency or incompetency. Where such an appointee has been found guilty of intoxication while upon his post during his probationary term of service, and has been fined therefor, the police commissioner is justified in refusing to appoint him to a permanent position.</p>

Appeal by the plaintiff, V^alter R. Smith, from a judgment of the Supreme Court in fav^r/of the defendant, entered in the office of the clerk of the county of Queen's on the 24th day of February, 1897, upon the dismissal of his complaint by direction of the court after a trial at the Queens County Trial Term.

<p>Brooklyn—.a, contractor applying for a pen'rnit to drive carts-over a sidewalk— cannot he required to sprinkle the street.</p> <p>'The ordinance oí the city of Brooklyn providing that the commissioner of city works may, in his discretion, grant permits “ allowing persons to drive or hack carts or other vehicles across sidewalks for the purpose of filling in or digging down vacant lots,” does not authorize such commissioner to impose upon a contractor, who has complied with all the other requirements of the ordinance requisite to a .permit, the further condition that the contractor shall agree to sprinkle the streets through which he carries the earth. '</p>

Appeal by the defendant, Marshall T. Davidson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 19th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes,

<p>Partnership accounting — reference opened to admit proof inadvertently omitted.</p> <p>Where,- in an action brought to procure an accounting between partners, the defendant, through inadvertence, fails to prove before the referee thé amount collected by the plaintiff on outstanding firm accounts, and the latter, availing himself of the provisions of the judgment entered therein, subsequently pays but a small part of such collections to the receiver of the firm property, the court has power, in the interests of justice, to vacate the judgment as entered, and, allowing the testimony already taken to stand, to permit either party to-the action to give further testimony before the referee.</p>

<p>A legacy overpaid by mistake — the surrogate’s decree on the executor’s accounting is not conclusive as to the right to recover the overpayment.</p> <p>A decree of a Surrogate’s Court, entered upon an executor’s accounting, is not conclusive in favor of the executor’s right to have money, paid by him in excess of the amount due upon a legacy, repaid by the legatee.</p>

<p> Attorney and client—power of the court to compel attorneys to act equitably—consideration for the extension of a mortgage. </p> <p>. A firm of attorneys who had instructions from one of their clients to procure for^ her extensions of the time of payment of all her matured mortgages, agreed to procure an extension of one of them for the mortgagor in consideration of a. fee of fifteen dollars. Subsequently, on March first, they notified him that they had procured the extension, to which he, on March fifth, replied, in effect, that he then had no money but was doing his best to collect some and would call at their office the next week. He called on March seventeenth, hut found no one there. On March twenty-second the attorneys, by direction of the mortgagee, who had canceled the extension, began a foreclosure of the mortgage and. refused to deliver, on demand, the extension of time in return for a payment of fifteen dollars, stating that they would make a settlement for that sum plus, certain costs of foreclosure and expenses of freeing the property from certain judgments. No consideration was paid by the mortgagor for the extension,, but, so far as appeared, he was ready to make that instrument mutual by executing it upon his part.</p> <p>Held, that although there might not have been a sufficient consideration for the extension, and the instrument of extension executed by the mortgagee might, therefore, have had no legal force at the time of the commencement of the foreclosure suit, yet the facts indicated an intention upon the part of the attorneys to realize from the mortgagor, from whom they had accepted the employment of procuring the extension, more than they were fairly entitled to receive for that service, and "that the court, by virtue of its general power over its officers could and would compel the attorneys to deliver the extension to the mortgagor upon his payment to them of the sum of fifteen dollars. ■</p>

Appeal by the plaintiff, Frederick Tiedemann, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 2d day of June, 1897, and entered in the office of the clerk of the county of Richmond, denying his motion for an injunction pendente lite restraining the defendant from constructing, operating and maintaining a street surface railway upon Hyatt street, in the village of New Brighton, Richmond county.

Appeal by George D. Beattys, as special guardian of Jeremiah Johnson and Herbert Brightwell Johnson, from an order of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 20th day of May, 1897, granting the application of Remsen Johnson, a creditor of the estate of Jeremiah B., Johnson, deceased, for authority to mortgage, lease or sell the real estate of the decedent for the payment of his debts.

Appeal by the defendant, Virginia W. Post, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the' county of Kings on the 29th day of January, 1897, Upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, The Trustees of the New York and Brooklyn Bridge, from an order of the Supreme Court, made at. the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of May, 1897, denying its. motion to amend its answer.

Appeal by the defendant, William H. McCord, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day. of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s' office on the 29th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James Jourdan, as receiver of the Kings County Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the applicant, Frank W. Shapter, from an order of the Supreme Court, made at the Kings County Special Term and. entered in the office of the clerk of the county of Queens on the 6th day of April, 1897, denying his motion to require the defendant to furnish separate ballots for the use of electors within the villages of College Point, Flushing and Whitestone, which separate ballots' should omit the proposition, contained in the ballots furnished to the other…

Appeal by the defendants, Arthur S. Rose and others, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of January, 1897, as denies their motion to vacate and set aside an alleged levy under an attachment upon an indebtedness due the defendants from the Mutual Fire Insurance Company, under a policy of fire insurance issued by said company to'said defendants.

Appeal by the defendant, Julia Rafferty, from an order of the Supreme Court, made at the Kings County Special Term and. entered in the office of the clerk of the county of Westchester on the 8th day of April, 1897, denying her motion to change the place. of trial of the action from the county of Westchester to the county of New York. •

Appeal by the defendant, George C. Dobson, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of February, 1897, which order continues in force dui'ing the pendency of the action a preliminary injunction restraining the defendant from continuing to publish or circulate certain articles or advertisements alleged in the complaint to be false and defamatory publications of and…

Appeal by the plaintiff, Anthony S. Wood's, from an order of the Supreme Court, made at the Queens County Special- Term and entered in the office of the clerk of the county of Queens on the 1st day of December, 1896, granting the defendant’s motion to set aside the verdict of a jury rendered in the action and granting a new- trial.

Appeal by the defendant, John W. Hendrickson, from a judgment of the County' Court of Queens county, rendered on -the 19th day of March, 1897, convicting him of the crime of grand larceny in the second degree, and also from an order, bearing date the 11th day of March, 1897, and entered in' said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, William Booth and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings upon the 23d day of January, 1897, upon the report of a referee, and also from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of January, 1897, continuing the report of the- referee upon which said…

Appeal by the defendant, the Edison Electric Illuminating Company of Brooklyn, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of Flay,. 1897, as'denies its motion for a trial; of the equitable issues in the action at a Special; Term, or before the trial of the' remaining issues, without prejudice to the renewal of the motion at Trial Term before the trial…

Appeal by the relator, Thomas J. Linnekin, from au order of the City Court of Brooklyn, made at a Special Term thereof and entered in the office of the clerk of .said court on the 19th day of November, 1886, denying his application for a peremptory. writ of mandamus, requiring the defendant'to restore the relator to his position as. pilot in the fire department of the city of Brooklyn.

Appeal by the -petitioner, Delbert A. Adams, as executor, etc.,, of Lydia M. Wilcox, deceased, from an order of the County Court of Monroe county, entered in the office of the clerk of the county of ■Monroe on the 21st day of January, 189J,; denying his motion for an order directing the hoard of supervisors of Monroe county to refund certain taxes to him, under the provisions of section 16 of chapter 686 of the Laws of 1892. ; The petitioner resides at Brockport and is the…

. Appeal by the defendant., The New York Central. and Hudson River Railroad Company, from a judgment of the Supreme Court. in favor of ■ the plaintiff, entered in the office of the clerk of the county of Niagara on the 29th day of February, 1896, Upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of' November, 1896, denying the defendant’s motion for a new trial upon a case' containing exceptions.

Cross-appeals by the plaintiffs and the defendants, The Merchants and Farmers’ National Bank of Dansville, New York, Frank Campbell, and The Manufacturers and Traders’ Bank of Buffalo* from a judgment of the Supreme Court, entered in the office of the clerk of the county of Steub.en on the 28th day of March, 1896, upon the decision of the court rendered after a trial at the Steuben Equity Term.

Appeal by the plaintiffs, Charles S. Lane and. others; from a. judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Allegany on the 16th day of June, 1896, upon the verdict of a jury.

Appeal by the defendant, The Auburn Gas Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 9tli day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of November, 1896, denying the defendant’s motion for a new trial, made upon the minutes. The jury rendered a verdict in favor of the plaintiff for the sum of $2,000.

Motion by the plaintiff, Della Vahue, for a new trial upon a case ' containing exceptions, ordered to be heard at the Appellate Division in the first ,instance upon a nonsuit granted by the court after a trial at the Monroe Trial Term.

Appeal by the defendant, The Village of Randolph, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 10th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of June, 1896, denying' the defendant’s motion for a new trial made upon' the minutes. . .

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

<p> Will—effect of a hequest of “ ail" a testators real estate upon property not mentioned in the will. </p> <p>A testator who died seized in equal shares with Ms sister of a lot in Rochester, subject to the life estate of their mother, left a will which did not mention this lot, but stated that he owned two lots in Buffalo, one of which had been conveyed to him by Adams & Clark, and the other by Hector McDonald; and. in its second clause contained a devise to his wife of “all” his real estate and property during her life, “ or so long as she shall remain unmarried, and after the death of my said wife to the four sons of my sister Julia Wilson,” equally. The third clause of his will directed that' “ in case my said wife shall marry, it is my purpose and will, and I hereby devise and bequeath to her the premises and real estate deeded to me by Adams & Clark, above mentioned, in fee, her heirs and assigns forever. And all her right and interest in the other piece of real estate shall thereupon cease and determine. And my said nephews shall then become the owners in fee and entitled to the possession' thereof immediately, subject, however,” to existing incumbrances. By the fourth clause he bequeathed all “ the residue of” his estate to his wife.</p> <p>The mother of the testator died and his widow married again, and thereafter brought an action of partition, in which it was</p> <p>Held, that the right of the widow to the use of the testator’s estate, with the exception of the Adams & Clark lot, of which she then took the fee,' terminated upon her remarriage, and that at that time the fee of all the remainder of the testator’s realty, including the Rochester lot, passed to the children of his sister, Julia Wilson.</p> <p>Adams and Creen, JJ., dissented.</p>

■ Appeal by the defendants, Sarah Dahlman and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 29th day of July, 1896, upon the decision of the court rendered after a trial at the Erie Special Term, separately stating the facts found and the conclusions of law, and adjudging that the defendants were- not entitled.to damages against the plaintiffs for retaining possession of leased…

Motion by the defendant, Agricultural Insurance Company, of Watertown, N. Y., for a new trial on a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the Cayuga Trial Term.

Appeal by the defendant, The Supreme Tent of the Knights of the Maccabees of the World, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Ontario on the 13th day of July, 1896, upon the verdict of a-jury rendered by direction of the court after a trial at the Ontario Circuit on the 16th day of May, 1895, and also from an order entered in said clerk’s office on the 31st day of December, 1895, denying the…

Appeal by the plaintiff, Edward 0. Johnson, as committee, etc., of Anna A. 0. Fries, a lunatic, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 4th day of November, 1896, upon the dismissal of his complaint after a trial at Chambers, without a jury, pursuant to a stipulation.

Motion by the plaintiff, Reed & Barton, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Trial Term.

Appeal by tlie defendant, the Rochester Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Jefferson on the 11th day of May, 1896, upon the verdict of a jury, and also from an order entered in said cleric’s office on the 7th day of May,, 1896, denying the defendant’s motion for. a new trial' made upon the' minut.es.

Appeal by the defendant, The Genesee Paper Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk, of the county of Monroe on the 8d day of August, 1896, upon the decision of the court rendered after a trial at the Monroe Special Term. •

Appeal by the defendant, The Town of Ellisburgh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 23d day of December, 1893, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes, and also from an order. of the Supreme Court, made at the Onondaga Special Term and…

Appeal by the defendant,. Howard Thomas, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 10th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Railroad company — traffic arrangement by, with one of two rival steamboat companies— exclusive use given to one of the two rival companies of the terminal facilities of the railroad company.</p> <p>A railroad company, whose railroad terminates at a point at which the boats of two rival steamboat companies touch, may enter into an agreement with one of said steamboat companies, permitting it to enjoy the use of said railroad c.ompany’s terminal facilities, without thereby- becoming obliged to permit the other steamboat company to use.and enjoy its terminal facilities.</p> <p>Neither section 7 of chapter 564 of the Laws of 1890, providing that “No stock corporation shall combine .with any other corporation for the prevention of competition,” nor section 7 of chapter 688 of the Laws of 1892, providing that “ no stock corporation shall combine with any other corporation or person for the creation of a monopoly or the unlawful restraint of' trade, or for the prevention of competition in any necessary of life,” can be invoked to compel a ■ railroad company which, for a valuable consideration, has concluded a traffic contract with a-steamboat company, by which each becomes the agent of the other for the transportation of passengers and freight, to enter into a similar arrangement with a rival steamboat company and afford it the same facilities.</p> <p>The refusal of the railroad company to thus become in effect the. agent of the, rival steamboat company for the transportation of passengers. and freight, is not a violation of section 47 of chapter 565 of the Laws of 1890, requiring a railroad company, when supplied by a steamboat company with the latter’s tickets and checks, to sell the tickets and account for the proceeds thereof, and . to make use of such checks.</p> <p>The provisions of section 84 of chapter. 676 of the Laws of-1892, that “No preference for the transaction .of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be granted by any railroad corporation to any one of two or more persons, associations or corporations competing in the same business, or in the business of transporting property for themselves or others,” do not- authorize a rival steamboat company to occupy the terminal facilities of -a railroad company upon the same terms as those enjoyed by another steamboat company with which the railroad company has contractual relations.</p> <p>Semble, that such a traffic arrangement is not obnoxious to section 8 of the Interstate Commerce Act, as the last clause of that section provides “but this shall not be construed as requiring any such common carrier to give the use of its - tracks or terminal facilities to .another carrier engaged in like business.”</p>

Appeal by the defendant, James Compton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 11th day of January, 1897, after a tidal at the Niagara Trial Term, and also from an order made at the Niagara Trial Term, and entered in the office of the clerk of the county of Niagara, denying the defendant’s motion to set aside the verdict, assessment and finding of the jury.

Appeal by the plaintiff, Joseph A? Bradburn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on' the 31st day of October^ 1896, upon, a nonsuit granted by the court after a trial at the Onondaga Trial Term. . - The defendant is a domestic corporation which was organized in the year 1878, with a capital of $1,500,000, and is engaged in manufacturing ■ and selling a product known as “ soda ash,” at…

Appeal by the plaintiffs, Amos M. Buker and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 18th day of September, 1896, upon the'decision of the court, rendered after a trial at-the Monroe Special Term, dismissing the plaintiffs’ complaint upon the merits, with costs.

Appeal by the defendant, Hattie S. Fisher, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 6.th day of February, 1897, suspending the operation of the judgment entered in the action, and reviving an injunction granted therein which had been vacated, until after the determination of the plaintiff’s appeal from said judgment to the Court of Appeals.

<p>Action for trespass in a Justice’s Court — counterclaim of an independent trespass on the same land, not good — neio trial in a County Court.</p> <p>In an action brought in the court of a justice of the peace to recover damages in the sum of forty-five dollars for an alleged trespass upon lands, an answer alleging that the defendant had a right to use the premises as a highway, and demanding one hundred dollars damages for the plaintiff’s interference with that right, does not constitute a proper counterclaim and entitle the plaintiff, who is defeated in the justice’s Court, to a new trial in the County' Court, under section 3068 of the Code of Civil Procedure.</p>

Appeal by the Hew York Central and Hudson River Railroad Company and another, from an order of the County Court of Herkimer county, entered in the office of the clerk of the county of Herkimer on the 1st day of March, 1897, appointing commissioners to assess the damages caused by the extension of Folts street, .and taking lands therefor in the village of Herkimer, as provided by chapter 291 of the Laws of 1870, as amended.

Appeal by the defendant, the Hanover Fire Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 25th day of January, 1897, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 25th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and. Hudson River Railroad Company, from a judgment of the Supreme Court ip favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 29th day of April, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day .of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Philip D. Armour and others, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the 23d day. of ¡November, Í896, denying their motion to vacate seven orders for. the examination by the plaintiff of several persons not parties to the action.

Appeal by the defendants, Frank White and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of O’neida on the 14th day of November, 1896, upon the decision, of the court rendered after a trial at the Oneida Special Term overruling said defendants’ demurrers to the complaint. The plaintiff was a stockholder in the Central National Bank of Rome.

Appeal by the defendant, The Mutual Life Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of Oswego on the 28th day of April, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Frederick Henry Norman, as treasurer of the Sun Fire Office, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 8th day of February, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the'defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, The People of the State of New York, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a non-suit granted by the court after a trial at the Livingston Trial Term.