Volume 18 — Bedell

Also appeal from an order of said Appellate Division affirming an order which granted defendants an extra allowance of costs. The nature of the action and the facts, so far as material, are stated in the opinion.

The order appealed from recites that “ the facts were examined and no error found therein.” The facts, so far as material, are stated in the opinion. This appeal to the Court of Appeals lies from the order of reversal of the Appellate Division. (Code Civ.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 6, 1904, which modified and confirmed as modified a determination of the defendant imposing a franchise tax upon the relator, a domestic corporation. »</p> <p>The certificate of relator’s incorporation reads in part as follows:</p> <p>“ Certificate of Incorporation</p> <p>of</p> <p>“ S. Cohn Co.</p> <p>“ State of New York, “ County of New York, ss. :</p> <p>“ We, the undersigned, all being’persons of full age, and at least two-thirds of us being citizens of the United States, and at least one of us a resident of the State of New Ybrk, desiring to form a stock corporation pursuant to the provisions of the Business Corporation Laws of the State of New York, do hereby make, sign, acknowledge and file this certificate for the said purposes as follows: * * *</p> <p>“ Third: The amount of the capital stock of the said corporation is one hundred and fifty thousand dollars ($150,000), of which one hundred thousand dollars shall be preferred debenture stock, being obligations of the' company as to dividends and capital and entitled to cumulative dividends at the rate of six per cent (6%) per annum; and the remaining fifty thousand dollars ($50,000) shall consist of common stock.</p> <p>“ Fo-urth: That the number of shares of which the said capital stock shall consist is one thousand five hundred (1,500) of the par value of one hundred dollars ($100) each, and the amount of capital with which said corporation shall begin business is fifty thousand dollars ($50,000). * * *</p> <p>“ Sixth: Its duration is to be perpetual. * * *</p> <p> “In Witness Whereofc&c.” </p> <p>The relator’s certificate of preferred stock, so-called, reads:</p> <p>“No. 50. Shares.</p> <p>“ S. Cohn & Co.</p> <p>“Capital Stock, $150,000. Par Value, $100 Each.</p> <p>“ This is to oebtify that..................is the owner</p> <p>of .................. preferred debenture shares of the capital stock of S. Cohn & Co., transferable only on the books of the company by the holder thereof in person or by attorneys on surrender of this certificate. Said preferred debenture stock shall entitle the holder thereof to receive out of the net earnings, and the company shall be bound to pay, a fixed yearly cumulative dividend of six per centum, but no more, payable semi-annually, before any dividend shall be set apart or paid on the common stock. The holders of this preferred stock shall, in case of the liquidation or dissolution of the company, be entitled to be paid in full, both the principal of their preferred debenture shares and the accrued dividends charged, before any amount shall be paid to the holders of the common stock.</p> <p>“ Be it further known, that for value received the company hereby agrees to pay to the registered holder of this certificate the par value of ............dollars, the face value thereof, in gold coin of the United States of America, of the present weight and fineness, or its equivalent, on the first day of July, one thousand nine hundred and twelve. All payments of dividends and principal will be made by the company at its office, No. 11 Maiden Lane, New York City.</p> <p>“ Be it further known, that the terms and conditions governing the payment) of this certificate and the payment of dividends hereon are endorsed on the back hereof and are hereby expressly made a part of this certificate, as much so as if they were fully written on the face hereof.</p> <p>“ In Witness Whereof, the said company has caused its corporate seal to be fixed hereto and this certificate to be signed by its president and treasurer.”</p> <p>The further material facts are stated in the opinion.</p> <p>The comptroller is not authorized to compute the franchise tax upon the par value of the capital stock nor to speculate as to what rule would apply if the facts were different, but must ascertain the amount of the assessable capital by deducting the liabilities from the value of the assets. (People ex rel. v. Knight, 173 N. Y. 255 ; People ex rel. v. Roberts, 168 N. Y. 14; People ex rel. v. Roberts, 154 N. Y. 101; People ex rel. v. Wemple, 138 N. Y. 588.) The company’s sealed agreement to pay $100,000 in gold coin on the 1st day of July, 1912, is a liability. (Corcoran v. U. S. 157 U. S. 296 ; People ex rel. v. Roberts, 154 N. Y. 101; People ex rel. v. Coleman, 126 N. Y. 433; People ex rel. v. Barker, 139 N. Y. 55.) The certificates for $100,000 are to be regarded as certificates of indebtedness and not as certificates of stock. The question is not what the incorporators call the certificates but what the facts and circumstances require the court to call them. (Matter of Bronson, 150 N. Y. 8 ; Burrell v. B. R. R. Co., 75 N. Y. 211; L. & I. Ins. Co. v. Massachusetts, 10 Wall. 566 ; Jackson v. Myers, 3 Johns. 387; Post v. Weil, 115 N. Y. 361; Burt v. Rattle, 31 Ohio St. 116; Helter v. Marine Bank, 89 Md. 602; Matter of I. L. Co., L. R. [11 Eq.] 478 ; Matter of Gen. Estates Co., L. R. [3 Ch.] 758; Edmonds v. B. F. Co., L. E. [36 Ch. Div.] 220.)</p> <p>The amount of relator’s capital stock employed within this state for the year in question was a question of fact, and the comptroller’s finding having been unanimously affirmed by the Appellate Division, is not reviewable here. (People ex rel. v. Morgan, 178 N. Y. 433.) The preferred debenture stock issued by the relator is capital stock liable to taxation, within the meaning of section 182 of the Tax Law. (Kent v. Q. M. Co., 78 N. Y. 159 ; People v. U. Ins. Co., 15 Johns. 382; City Bank v. Bruce, 17 N. Y. 507; Carpenter v. B. M. Co., 65 N. Y. 43.)</p>

The facts, so far as material, are stated in the opinion. The state in its sovereign capacity must be deemed to be in actual occupancy of land owned by it. (L. 1900, ch. 20 ; People ex rel. v. Turner, 145 N. Y. 451; People v. Campbell, 152 N. Y. 51.) The theory that the state, through the forest, fish and game commission, is in the actual occupancy of all lands within the Forest Preserve is erroneous. (Embury v. Burnett, 11 Pet. 52; Latta v. Clifford, 59 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. Mr. Hoagland was entitled to. credit for the money in the solicitors’ hands. The referee erred in striking out this credit. (Hood-Barrs v. Heriot, L. R. [1 Q. B.] 610.) The judgment appealed from erroneously makes Mr. Hoagland’s estate responsible for a judgment after February first.

The nature of the action and the facts, so far as material, are stated in the opinion. In order to succeed in this action and to have this particular remedy, the burden of proof is upon the plaintiff to show that the tax was duly imposed. (Black on Tax Titles, § 45 ; City of New York v. McLean, 57 App.

The nature of the action and the facts, so far as material,, are stated in the opinion. The use of one of the principal public thoroughfares of the American metropolis on the occasion in question for the exhibition of the dangerous fireworks display constituted, in and of itself, a public nuisance.

The facts, so far as material, are stated in the opinion. The misconduct of the district attorney in persisting in offering evidence of other fires .constitutes reversible error. (People v. Smith, 162 N. Y. 520; People v. Sharp, 107 N. Y. 427; Barton v. Bruely, 96 N. W. Rep. 85; Fossdahl v. State, 89 Wis. 482; Paulson v. State, 94 M. W. Rep. 771; Buel v. State, 104 Wis. 132; McNamara v. McNamara, 108 Wis. 613; Goodwin v. State, 114 Wis. 318; People v. Milks, 55 App.

The facts, so far as material, are stated in the opinion. The burden is upon the relator to show that it has been aggrieved by the assessment made. (People ex rel. v. Barker, 66 Hun, 21; 137 N. Y. 544 ; People ex rel. v. Feitner, 54 App. Div. 214; 165 N. Y. 645 ; People ex rel. v. Feitner, 60 App. Div. 282.) In making .the assessment the commissioners were required to include the actual value of the relator’s real estate and to deduct merely the assessed value.

<p>Appeal •— Taxation of Costs and Insertion of Specified Amount in Interlocutory Judgment Does Not Make it Final. A judgment entered upon the report of a referee directing a final accounting of the affairs of a dissolved corporation by the trustees thereof and for such sums as may be found due by them from the sale of goods to any one or more of themselves, and for sums improperly paid to them for services in tlie performance of their trust, and that the plaintiff have judgment with costs, is not final, but interlocutory; the fact that a provision was inserted in the judgment that the plaintiff recover the costs, which were taxed, and have execution therefor, does not make it final and reviewable by the Court of Appeals, since that procedure was irregular ’ and should have' been corrected not by appeal hut by a motion to strike out.</p>

Warren Newcomb died August 28, 1866, leaving a widow and a daughter, an only child, him surviving.

a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. If plaintiff’s testimony as to his contract of employment established a new contract for five years the trial court erred in denying the defendant’s motion to dismiss the complaint on the ground that the contract proved was invalid under the Statute of Frauds. (Reed v. McConnell, 133 N. Y. 425 ; Southwick v. F. Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to refuse to permit the defendant to read portions of the plaintiff’s cross-examination of one of the defendant’s witnesses taken under an open commission, which cross-examination the plaintiff had declined to read. (Code Civ. Pro. §911.) .

<p>1. Evidence — Presumption of Innocence Not Indulged in Civil Action. In an action tj recover damages for an assault, a refusal by tlie trial court to charge “ that the defendant is presumed innocent until he is proven guilty” presents no error, since the presumption of innocence is not indulged in a civil action, and, even where the defendant is charged incidentally with a crime, the plaintiff is required to sustain his case only by a preponderance of evidence.</p> <p>2. Appeal — When Appellate Division, in Granting Leave to Appeal, Need Not Certify Questions. Under the provisions of subdivision 2 of section 191 of the Code of Civil Procedure a certificate of the Appellate Division that in its opinion a question of law is involved which ought to he reviewed by the Court of Appeals is sufficient, without specifying the question for review, it being only under subdivision 2 of section 190 of the Code of Civil Procedure that questions are required to be certified.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The decision of the court below is propeidy re view able in this court.

The nature of the action and the facts, so far as material, are stated in the opinion. Eva S. F. Rosseau, the mother of the plaintiff, was a person interested in the event of the action, and an incompetent witness. (Embler v. H. B. Ins. Co., 158 N. Y. 431; Durnherr v. Rau, 135 N. Y. 219; Vrooman v. Turner, 69 N. Y. 280; Connelly v. O'Cormor, 117 N. Y. 91; Eisenlord v. Clum, 126 N. Y. 552 ; Munz v. Colvin, 35 App.

<p>1. Murder—Sufficiency of Evidence.</p> <p>The evidence upon the trial of an indictment for homicide reviewed and held sufficient to warrant a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>2. Appeal—Controversy Between Counsel.</p> <p>An exception taken to the remarks of the prosecuting, officer, made in the course of a dispute with defendant’s counsel, presents no reversible error where the jury is instructed to the effect that the discussion was not material.</p> <p>3. Charge—Circumstantial Evidence.</p> <p>An instruction to the jury in a capital case resting upon circumstantial evidence, to the effect that if from the “ established facts ” the jury is satisfied of defendant’s guilt, its judgment rests upon as secure and reliable foundations as though it rested upon the testimony of eye witnesses, presents no reversible error.</p> <p>4. Same—Recital of Facts.</p> <p>Where a charge is full and fair, deals only with facts in evidence and submits the question of defendant’s innocence or guilt to the jury, the narration of the facts constituting the defense in substantially defendant’s own language does not make it erroneous for the trial court to bring them to the attention of the jury because his story seems unreasonable or incredible.</p>

February 15, 1904, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. The question whether there was any intention on the part of Sarah Ann Eoof to transfer title to the fund in the bank was one of fact, and should have been submitted to the jury.

<p>False Representations — When False Statement by Which Personal Property Is Obtained Need Not Be in Writing to Support an Indictment for Grand Larceny. A false representation made by a purchaser that he had an order from a well-known mercantile corporation of strong financial standing for a large number of garments to be made frpm certain material, and requiring a specified number of yards, by which he induces the delivery to him of a certain quantity of the goods, does not relate to his financial ability, but is a false statement as to an existing fact, inducing a sale or parting with the possession.of personal property and is, therefore, criminal although not in writing and signed by the party to be charged thereby as required by section 544 of the Penal Code.</p>

The facts, so far as material, are stated in the opinion. The evidence in the case is insufficient to sustain the judgment of conviction of murder in the first degree.

The facts, as far as material, are stated in the opinion. The verdict was against the evidence, and justice requires that a new trial be granted. (People v. Barberi, 149 N. Y. 256; People v. Beckwith, 103 N. Y. 360 ; People v. Conroy, 97 N. Y. 62.) There is not evidence to support a verdict of murder in the first degree. There is a want of premeditation, deliberation and an intent to kill.

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement of February 19, 1887, whereby the parties agreed to distribute the trust property is absolutely void. (N. Y. L. Ins. & Trust Co. v. Hoyt, 161 N. Y. 1; Hone v. Schaick, 7 Paige, 234; L'Amoureux v. Van Rensselaer, 1 Barb.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff, as a receiver in supplementary proceedings, cannot maintain this action. (Sheldon v. Wickham, 161 N. Y. 500; Stephens v. M. B. Co., 160 N. Y. 178 ; Castleman v. Pryor, 55 App. Div. 515 ; Stewart v. Cole, 43 Hun, 164.) Neither the trustee’s pleading nor the findings in liis favor supports a recovery upon either of the three causes of action he sets out in his answer.

The action was brought to set aside nine deeds of trust made by Joseph H. Brown, and in the event of their being set aside, plaintiff asks for a judicial construction of the residuary clause of said Brown’s will, determining whether the funds specified in the trusts passed under that clause of the will, or passed to the widow and next of kin as in case of intestacy.

The nature of the action and the facts, so far as material, are stated in the opinion. The action is properly brought to recover damages on the law side of the court instead of for equitable relief. (Marvin v. Brooks, 94 N. Y. 80; Dykman v. Keeney, 150 N. Y. 483; O'Brien v. Fitzgerald, 6 App.

The nature of the action and the facts, so far as material, are stated in the opinion.

entered upon a verdict directed by the court and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The verdict directed by the learned trial justice is against the evidence and contrary to law.

The nature of the action and the facts, so far as material, are stated in the opinion. It does not appear in the. order of the Appellate Division reversing the judgment of the trial court and granting a new trial that such reversal was upon the facts, and, therefore, it must be presumed that the reversal was for some error of law only. (Code Civ. Pro. § 1338; Whitman v. Foley, 125 N. Y. 651; Hannigan v. Allen, 127 N. Y. 639; Nat.

Appeal, by permission, from a judgment of. the Appellate Division of the Supreme Court in the fourth judicial department, entered August 7, 1903, which reversed a judgment of Special Term sustaining demurrers to the complaint and overruled such demurrers. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. No errors were committed upon the trial in the admission or exclusion of evidence. (Clift v. Moses, 112 N. Y. 426; Tooley v. Bacon, 70 N. Y. 34; People v. Wilkinson, 14 N. Y. Supp. 827; Daniels v. Patterson, 3 N. Y. 47; Matter of Bateman, 145 N. Y. 623; Smethurst v. Proprietors, 148 Mass. 261; Kern v. Bridwell, 119 Ind. 226 ; Abbott’s Trial Brief [2d ed.], 228 ; Ellicott on App.

Motion to compel acceptance of a notice of appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 24, 1904, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.

Cross-appeals from a judgment entered March 20, 1904, upon an order of the Appellate Division of the SupremCourt in the first judicial department, which reversed an order of Special Term denying a motion to confirm the report of a referee appointed, after the entry of an interlocutory judgment granting the plaintiff an injunction, for the purpose of determining the plaintiff’s damages, and after modifying the amount awarded, directed final judgment accordingly.

Clinch, deceased. The facts, so far as material, are stated .in the opinion. The right of Robert T. Clinch, at the time of his death, to an accounting by his father’s executors for his father’s personal estate, was a mere cliose in action, and hence not property within the state of New York. (Matter of Bronson, 150 N. Y. 1; Matter of Preston, 75 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered Hovember 28, 1904, which affirmed an order of Special Term restraining the defendants from acting as members of the municipal improvements commission of the city of Troy under the provisions of chapter 629 of the Laws of 1904, and also restraining the issuance of bonds thereunder. The following questions were certified : “ First-.

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement made at the time of settlement and as a consideration for the execution of the release was a separate and independent agreement not embodied in the release nor inconsistent with its terms.

<p>Contributory Negligence. Where, in an action for personal injuries sustained by the plaintiff, who, passing behind the rear of a car and stepping on to an adjoining track, was struck by a car approaching from the opposite direction, it appears that he failed to exercise ordinary caution in ascertaining whether or not the track was clear, he is chargeable with contributory negligence as matter of law.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The water commissioners of the water district of Blue Mountain lake are the officers, agents and servants of the town of Indian Lake. (L. 1900, ch. 451, § 1; Fleming v. Village of Suspension Bridge, 92 N. Y. 372; King v. Village of Randolph, 28 App. Div. 28.) A town is a municipal corporation and can sue and be sued upon a contract.

<p>Will — When Survivors Take Distributively — When Lapsed Devise Becomes Part of Residuum. Under a will creating a trust and providing that after the death of the beneficiary the corpus should pass to testator’s sister and two brothers to be equally divided between them, and that “after” setting aside the trust fund, “then” the residue should go to his executors in trust for the benefit of his father and mother during their lives, and thereafter to his brothers and sister, the share of a brother who predeceased the testator does not pass to the survivors as a class but lapses; and the provisions creating a residuary estate being deemed to speak as of the date of his death include all property that had not been effectually devised or bequeathed to others, including the legacy which had lapsed, the words quoted being considered to be words of description rather than of exclusion and limitation.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The statute under which this action is brought is a penal statute and must be strictly construed. (Bishop on. St at. Crimes, § 199 ; Sutherland on Stat. Const. 436; Kent’s Comm. 465.) Strictly construed the statute in question does not include bootblacks. (People v. Richards, 108 N. Y. 137; People v. N. Y. & M. B. Ry.

The nature of the actión and the facts, so far as material, are stated in the opinion. The trial judge erred in directing a verdict for the plaintiff at the close of the testimony. (Higgins v. Eagleton, 155 N. Y. 466 ; Whitaker v. S. I. M. R. R. Co., 72 App. Div. 468;. Williams v. Brown, 53 App. Div. 486; Martin v. H. Bank, 160 N. Y. 190 ; Thompson v. S. F. Nat. Bank, 150 U. S. 231; A. C. Bank v. P. I. Co., 92 App. Div. 47 ; Smith v. E. W. Bank, 31 App.

The nature of the action and the facts, so far as material, are stated in the opinion. This court has jurisdiction to review the order of the Appellate Division. (O’Brien v. Fleckenstein, 177 N. Y. 554.) It was error for the Appellate Division to reverse on the facts, since no material disputed question of fact was before that court for review. (Otten v. M. Ry.

<p>1. Chattel Mortgage—When Given by Two Mortgagors Residing in Different Places, Mortgage Is Void under the Statute (L. 1833, Ch. 279, § 1) Unless Piled in Both Places. Where a chattel mortgage to secure part of the purchase price of the mortgaged property is given by the members of a- firm, who reside in different places and the mortgage is filed in the town and county where the property is situated and one of the partners resides, hut is not filed in the city and county where the other partner resides, the mortgage is thereby rendered void, under the statute (L. 1833, oh. 279, § 1), as against the creditors of the mortgagors, and as against subsequent purchasers and mortgagees in good faith; and the fact that the mortgagee, acting upon the erroneous assumption that the mortgage was due, when it was not, took possession of the property, but not under the safety clause, sold it under an attempted foreclosure and bid it in himself, gives him no title to the property as against existing creditors of the mortgagors lawfully claiming the same.</p> <p>2. Same — Rights of Subsequent Mortgagees Holding Mortgage on Same Property as Security for Guaranteeing Note Made by Mortgagors. Where the guarantors of a note made by such mortgagors, in pursuance of an agreement made at the time of guaranty, subsequently take a mortgage, due on the date the note became due, upon the same property as security for their liability as guarantors, and thereafter, and upon the default of the makers, pay the note, they are, even assuming that they are not mortgagees in good faith, creditors of the mortgagors holding an instrument, which, as the contract of the parties, entitles them to take possession of the mortgaged property, and they are not liable to the first mortgagee as for a conversion of the property.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. A conveyance of property bounded by a street or by a stream carries title to the center, when the grantor owns so far.

<p>Accord and Satisfaction — Acceptance of Check Accompanying Statement Marked “to Check in Full.” The mere retention and use by vendors of checks accompanying an account giving the amount of goods delivered, and the price therefor, at the foot of which appeared the words “to check in full,” does not constitute an accord and satisfaction where it appears that they had a valid contract by which the vendee was bound to accept the goods at a specified price, and although the latter repudiated it, it continued to receive the goods after notification that they were delivered solely under the contract and at the price stipulated therein, and if it sent any checks it would receive for them nothing but credit on account.</p>

. Appeal from a judgment of the Appellate Division oE the Supreme Court in the first judicial department, entered February 11, 1904, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for anew trial. The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in refusing to charge defendant’s request. (Armstrong v. M. S. Ry. Co., 36 App.

The nature of the action and the facts, so far as material, are stated in the opinion. By the main and principal obligation of the policy of reinsurance defendant obligated itself to pay the plaintiffs the full amount of their loss, which is less than $5,000. The pro rata words of the reinsurance rider do not aid the defendant at all. (Hand v. W. F. Ins. Co., 57 N. Y. 41; L. A. Corp. v. Thompson, 170 N. Y. 94; Ins. Co. of N. A. v. H. Ins. Co., 140 U. S. 565 ; C. Ins.

<p>1. Appeal — When Affirmance Assumed Kot to Have Been Unanimous. If it does not appear from the order or judgment that an affirmance by the Appellate Division was unanimous, the Court of Appeals will assume that it was not, and will determine whether the evidence was sufficient to warrant the submission of the case to the jury, where the defendant has moved for a dismissal of the complaint.</p> <p>2. Negligence — When Facts Proven Do Not Show That Plaintiff's Intestate Was Free from Contributory Negligence. Where in an action for negligence it appeared that the plaintiff's intestate was injured while diagonally crossing a street in which there was no vehicle and no obstruction to prevent him from seeing an approaching team by which he was struck, and there is no fact in evidence to show that he used reasonable care, and the facts proven not only do not permit of the slightest inference that any care was exercised, but are such that the occurrence is inexplicable, except upon the inference that he consciously took the risk of crossing in front of the team, or, being unconscious and unobservant of the situation, that he walked into the team, such evidence, however negligent the driver of the team may have been, fails to meet the burden imposed by law upon the plaintiff of showing that the deceased was free from fault, and it is reversible error to submit the case to the jury.</p>

The facts, so far as material, are stated in the opinion. The relator does not have title to the roadway described in the assessment, and that is apparent on the face of the return. (Trevivan v. Lawrence, 2 Smith L. C. 510; Bigelow on Estoppel, ch. 1.) It is improper to sustain the assessment actually made by assuming, first, that the relator has other real estate than that described, and, second, that that has been assessed.

<p>Murder—Evidence Necessary to Establish Premeditation and Deliberation.</p> <p>The evidence upon the trial of an indictment for homicide, reviewed and held insufficient upon which to base a finding of the premeditation and deliberation necessary to sustain a verdict convicting the defendant of the crime of murder in the first degree.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The courts below committed a fatal error in assuming that plaintiffs had obtained a valid title to the trade mark “El Falcon” by assignment of the same from the Lichtenstein corporation.

, entered January 7, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the court on tidal at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division disposed of the appeal upon an erroneous theory of the action. First.

<p>1. Murder—Insanity as Defense—Sufficiency of Evidence to Warrant Conviction.</p> <p>The evidence upon the trial of an indictment for murder in which insanity was interposed as a defense reviewed, and held sufficient to sustain a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>2. Trial—When Challenge to Panel of Trial Jurors on Ground of Unconstitutionality of Special Jury Act Insufficient.</p> <p>A written challenge interposed to a panel of trial jurors upon the _ ground that the act under which they were drawn (L. 1892, ch. 491; amd. L. 1893, ch. 269) was unconstitutional (Const, art. 3, § 18), which fails to allege (§ 23) that the act was not reported to the Legislature by the commissioners of statutory revision, and which was duly excepted to by the prosecution, is insufficient to warrant the conclusion that the act was invalid, and is properly overruled.</p> <p>3. When Defendant on Trial for Murder Not Prejudiced by Drawing and Return of Trial Jurors Under Unconstitutional Act.</p> <p>Assuming, however, the invalidity of the act where, in accordance therewith, the jurors were taken from the body of the county and possessed the same qualifications in substance as those provided for by the Code of Civil Procedure, and each was separately examined by each side, and each side expressed satisfaction with each juror before he was sworn to try the case, it is not apparent how the defendant could have been prejudiced in respect to the drawing and return of the jurors and no right guaranteed to him by the Constitution is thereby invaded.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff has failed to establish a cause of action against the defendant, and the motion for nonsuit made by defendant should have been granted, and also the motion for a new trial should have been granted.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 24, 1903, sustaining defendant’s exceptions, ordered to be heard in the first instance by the Appellate Division, and granting a motion for a new trial.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 12, 1904, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer. The following question was certified: “ Does the complaint state facts sufficient to constitute a cause of action % ”