Volume 18 — New York Miscellaneous Reports

Action for damages for the defendants’ alleged breach of a contract to pay for an advertisement of their business, “ in trade,” out of merchandise, or the avails of merchandise, “ to be sold ” by them “ for a proposed new hotel other than has been estimated or contracted for; ” the defenses being a denial of any breach, and that the contract was induced by material misrepresentations upon the plaintiff’s part.

Appeal by the defendant from an affirmance by the General Term of the City Court.of a judgment in plaintiff’s favor, entered upon the verdict of a jury for $1,000, and $45 interest, in an action on two promissory notes.

Appeal by the defendant from a judgment of the City Court of Hew York, at General Term, which affirmed a judgment for the plaintiff at Trial Term, upon a verdict in his favor. Action to recover damages for personal injuries alleged to have been sustained in a collision with one.of the defendant’^ cable cars through the neglect of an employee in control of the car to give warning of the latter’s approach.

<p>Appeal from affirmance by tbe General Term of the City Court of Rew York of a judgment rendered by the Court at Trial Term-without a jury, in favor of the plaintiff, In an action brought to foreclose a mechanic’s lien.</p>

<p>Appeal from affirmance by the General Term of the City Court of ¡New York of a judgment rendered in favor of the plaintiff.</p>

<p>1. Master and servant — Extra compensation.</p> <p>A bookkeeper employed by a firm is under obligation to do whatever work upon the books or accounts may be required oí him by any of the partners, and no agreement for extra compensation .can be, implied where he is called upon to write up or examine the individual books or accounts of one of the partners.</p> <p>3. Same.</p> <p>An employee cannot by taking work home which ought to have been doné at the employer’s place of business during business hours, make out a claim for extra pay.</p> <p>3. Same — Declarations of agent.</p> <p>Where an agent has no authority to contract with another for extra compensation, his declarations in relation thereto are not admissible to charge the master.</p>

Action to recover damages for personal injury sustained by the plaintiff, while a passenger upon one of the defendant’s steamships, from the careless piling of baggage, upon a part of the deck to which the passengers were allowed access, by the officers and crew.

Appeal by the plaintiff from a judgment of the' General Term of the City Court of Hew York,, which affirmed a judgment for the defendants rendered at Trial Term- upon a verdict in their favor.

Appeal by the plaintiff from an affirmance by the General Term of the City Court of an order vacating an order in supplementary proceedings, permitting a third party, Alexander Wiley, to pay to the sheriff, on the plaintiff’s execution, the sum of $201.85, the amount of his indebtedness to the defendant, Robert A. Carrick, upon a judgment recovered by Carrick against him, and directing the plaintiff to repay to one Oswald N. Jacoby, as assignee of the said judgment, the sum…

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

Action upon a promissory note, by the indorsee against the makers, the defense being that the note was issued for the accommodation of one of the makers, the payee, and discounted at his request upon an usurious agreement with a prior holder.

<p>1. Corporations — Assumption of debts.</p> <p>As part of the plan of reorganization of a corporation upon the foreclosure of a mortgage upon its property it was provided that the bondholders who assented to the plan should be paid in bonds and stock of . the new company, and that the bonds undistributed might be sold to raise money to pay nonassenting bondholders the distributive share they might be entitled to out of the proceeds of the sale of the property of the old company. Subsequently, the new company desiring to acquire other property of the former company not covered by the foreclosure, a bill of sale thereof was executed in consideration of its . assumption of all debts and obligations of the Old company “ excepting the mortgage bonds of said party of the,first part,? which was, however, delivered on condition that the new company should, and after it had passed a resolution to assume all debts, obligations and liabilities “ in addition to the bonds and obligations mentioned in, the agreement of reorganization.” Held, that, such assumption included the bonds held by the nonassenting bondholders.</p> <p>2. Leave to sue — Agreement entered into after foreclosure.</p> <p>Section 1628 of the Code does not prevent an action to recover a deficiency based on an agreement made after foreclosure, and such action is maintainable without leave of court.</p>

<p>Money had and received — Promise to pay another — novation.</p> <p>Plaintiff, a contractor, being indebted to defendant and one R., drew á draft for the aggregate amount due to them in favor of the defendant, who agreed that when the same was collected he would pay R. therefrom the amount due to him. This he subsequently refused to do; and R. collected his claim from the plaintiff. Held, that the transaction did not constitute a novation, and that plaintiff was entitled to maintain an action for money had and received to recover the surplus thus received by defendant.</p>

Appeal by the plaintiff from a judgment of the justice of the Fourth District Court in her favor, in an action for wages other than as a domestic servant, in which judgment the justice has omitted to insert $5 additional costs.

' Appeal by the defendant William Gubner ' from a judgment of the justice of the Third District Court, in favor of the plaintiff for the possession of personal property. ' The complaint was dismissed against the defendant Elizabeth Bayerle, administratrix of Henry Keller, deceased, btit no appeal is taken by the plaintiff from such dismissal.

<p>Married women — Liability — Agency.</p> <p>A married woman who employs an attorney in litigations which nominally affect her husband, but in which she is personally interested, is liable for his services, unless she discloses to him the fact that she is acting merely as the agent of her husband.</p>

Action by the assignee of the lessor, against the lessees, to recover a month’s rent for premises in the city of Hew York, the defendants having entered into possession of such premises, with the consent of the lessor, under an oral agreement of lease for more than a year at a monthly rental,.payable in advance, pending the execution of the lease in writing, and having vacated and abandoned the premises after the commencement of a subsequent month without having executed the…

<p>Appeal from judgment of the Sixth Judicial District Court, -rom dered by -the justice, without a- jury, in favor of the plaintiff. -</p>

<p>1. Stenographers — Liability of parties for fees of.</p> <p>A stenographer called in by a referee to take the testimony on a motion for alimony is not bound by an agreement between the parties as to a division of their liability for his fees which was not brought to his notice, but may hold them jointly liable therefor. ■</p> <p>8. Payment — Acceptance of part.</p> <p>Proof of the receipt by plaintiff of a check for half his claim accompanied by a letter refusing to pay more is not sufficient to establish a defense of payment, where the proof shows liability for the whole of the claim.</p>

<p>Negligence — Bicycles — Contributory.</p> <p>While plaintiffs were riding a tandem bicycle along Thirty-fourth street they attempted to cross the ear tracks at Madison avenue in front of a horse car which at the time was about ten feet distant, when the man on the front wheel was struck by one of the car horses. Held, that plaintiffs were guilty of contributory negligence and could not recover.</p>

<p>Motion to set aside an attachment.</p>

This action is brought by plaintiff to compel defendant to credit plaintiff with payment of a certain assessment on or about February 1, 1896, due upon each of two policies theretofore issued by it to-plaintiff, and in payment of which assessment it is claimed by it ■plaintiff has made default; and to compel defendant to recognize said policies and treat them as valid and binding, and to reinstate plaintiff in and to all of his rights as holder of said'policies, and as a…

<p>Arrest — Gaming. Lotteries.</p> <p>An action to recover twice the sum paid for a share, intérest or ticket in a lottery in pursuance of section 32 of part 1, chapter 20, title 8, article 4, of the Revised Statutes, is one for a penalty and will warrant the granting of an order of arrest under subdivision 1 of section 549 of the Code of Civil Procedure.</p>

<p>Application for a peremptory mandamus to compel the secretary of state to furnish relator with material for the printing of a compilation of the election laws and registration books.</p>

<p>Action to set aside an assignment for the benefit of creditors.</p>

Action for injunction to restrain defendants from selling liquor upon premises in violation of a covenant in a conveyance thereof from plaintiff to defendants’ grantor, of which defendant had notice.

<p>1. Fraudulent conveyances — Intent—Consideration.</p> <p>While the intent with which a conveyance was made is- the primary consideration to be regarded in determiniñg whether the conveyance is fraudulent as to creditors, the want of a valuable consideration is also a material circumstance, and a voluntary conveyance by one, who is at the time indebted, is presumptively fraudulent.</p> <p>8. Same — Creditor — Accommodation indorser as debtor.</p> <p>Where a bank has discounted a note, in part at least upon the faith of an accommodation indorsement, and the note is subsequently re newed with the same person as indorser or maker, the latter stands in the relation of a debtor to the bank, notwithstanding the fact that the liability of the indorser is merely contingent and dependent upon nonpayment -by the maker. The bank may, therefore, as a creditor, attack a conveyance, made by the accommodation indorser before his liability as such became actually fixed.</p> <p>3. Same — Actual fraud.</p> <p>Where the evidence in a case shows that the grantor made the-alleged fraudulent conveyance with the actual intent of placing the property transferred beyond the reach of his creditor, it is immaterial whether the debt counted upon was created before or after.the conveyance.</p>

<p>Morion to vacate injunction.</p>

<p>Fraudulent conveyances — Evidence.</p> <p>Where the evidence, in an action brought to set aside a conveyance made by a husband to a wife, tends to show that the wife, many years before the trial, made slight advances to her husband to assist him in his business; that these advances were never made the subject of a claim by the wife against the husband until he became embarrassed, and that they were then attempted to be made the basis of a demand note given by the husband to the wife, the transaction is fraudulent, and the conveyance predicated upon the note must be set aside.</p>

Motion by. defendant and Marcia Farr, a judgment creditor of the defendant, to vacate and set aside a warrant of attachment.

• An action to foreclose a ■ mortgage made and executed by the defendant George O. Miller to the defendant'Albert W. Story. This mortgage was given to secure the payment of two notes made by the mortgagor, for $500 each, payable to the order of the mortgagee, as is recited in his bond accompanying the mortgage, all of the said instruments bearing date October 1, 1892.

<p>Action for partition. The opinion states the facts;</p>

This action is brought by plaintiff as stockholder in and of said Central National Bank of Rome in behalf of himself and such other stockholders as may elect to properly unite with him in the action to secure money relief for damages claimed to have resulted to said Central National Bank and the stockholders thereof through the alleged improper acts and omissions to act of. the individual defendants and one Henry Johnson, deceased, and represented herein by his executrix, as…

<p>1. Negligence.</p> <p>In an action predicated upon negligence, it appeared that the plain- • tiff, a driver of a street car owned by the Second Avenue Railroad Company, was driving his car late at night up the Bowery, upon a track used jointly by his company and by the defendant. He approached Grand street and prepared to turn easterly upon the tracks on that street, when a Grand street car approached upon the. intersecting track which he intended to use, and caused him to come to a stop when on a spur connecting the Bowery track with the Grand street track. The Grand street car passed in front of him, stopped, and received and discharged many passengers. The plaintiff’s car was delayed about half a minute, during which time the rear of his car overhung the Bowery track. At this moment the defendant’s trolley car came up the Bowery track, struck the rear platform of the plaintiff’s car, and he was injured. Held, that as the driver of the trolley car should reasonably have expected that cars in front of him might stop, the plaintiff was not guilty of contributory negligence as matter of law, because, when he stopped his own car, he allowed it to project over the Bowery track.</p> <p>2. Same — Measure of damages.</p> <p>The Appellate Term of the Supreme Court has no power to review the decision of the General Term of the City Court of New York, as to the question whether or not a verdict is excessive.</p> <p>3. Same — Permanent, injuries.</p> <p>Where the complaint in such an action contains ample general averments of injuries, but does not contain any special allegation of permanent injuries, it is still sufficient to enable the jury to make an award for such permanent injuries. .</p> <p>4. Same — The charge — Credibility of witnesses.</p> <p>A request that the jury be charged that they are not bound to belleve the testimony of any of the witnesses who had presented their testimony at the trial, is properly refused where several disinterested witnesses have been sworn whose testimony was uncontradicted arid was not questionable through inherent improbability. ..-</p>

<p>1. Sale — Executory—Measure of damages;</p> <p>Where a vendor refuses- to deliver goods sold upon an executory contract, the general rule is that the vendee is entitled to recover, as damages the difference in the price on the day fixed by the contract for delivery, and this principle is based upon the assumption that the vendee, immediately upon the breach, can buy other goods of a similar quantity and quality. Where, however, the goods are to be delivered to a carrier in another State, and knowledge that the goods were not delivered as agreed, was not transmitted to the vendee until several days later, he is entitled to recover damages as of the date when he first learned of the failure to deliver.</p> <p>2. Agency — Disclosed principal.</p> <p>Where a contract of sale reads, “ Bought of L. H, Quinn Company,” without any reference to an agency for any other party, and where, in the correspondence relating to the sale, there is no suggestion of any other agency, the vendor, upon a failure to deliver, furnishes no defense by showing that a Mr. Quinn, who was a member of the L. H. Quinn Company, was the agent for the receiver of another company which, in fact, manufactured the goods, and that the vendees knew the fact.</p>

<p>Leave to intervene — Terms may be imposed.</p> <p>Where persons who claim to own certain goods, levied upon by the sheriff under executions, begin an action of replevin against the sheriff to replevy the goods, and the debtors in the execution apply to the court, under section 452 of the Code of Civil Procedure, for leave to intervene and defend, the court, while .bound to grant the application, has power to impose terms. The right of the judgment debtors to intervene as persons, not parties to the action but having an interest in its subject-matter, is not an absolute right, which they may exercise without any terms or conditions.</p>

<p>1. Sale and return.</p> <p>Contracts of sale made on condition that the property may be returned at. the option of the buyer, carry the title to the buyer.. The act of -returning the goods is a condition subsequent which may, if performed, defeat the title already vested. If the right of return is not duly exercised and the property is retained, the right is forfeited and the sale becomes absolute. Where the contract prescribes the time within which a return must be made, that time controls; and, if no time is stated, then the vendee must. return the goods within a reasonable time; and what constitutes a reasonable time is to be determined by the jury.</p> <p>2. Same — Evidence.</p> <p>Evidence of the course of dealing between the parties, prior do the . contract in question, is competent for the purpose of explaining their acts and communications with each other in reference to the transactions in controversy.</p> <p>3. Evidence.</p> <p>A general objection to proof that it is incompetent and irrelevant is unavailing, if the evidence is admissible for any purpose.</p> <p>4. Consideration.</p> <p>The consideration paid by an assignee to an assignor for an assignment .of a claim, executed in due form, cannot be inquired into.</p>

<p>1. Pledge.</p> <p>A pledgee acquires, merely a limited property in the pledge, and the title remains in the owner. The purpose of the pledge Is to put it in the power of the pledgee to reimburse himself for the money advanced when it becomes due and remains unpaid.</p> <p>2. Same — "Use.</p> <p>The weight of. authority is that the pledgee of jewels has no right to use them and certainly none to change the setting, of diamond rings. Nor has the donee or assignee of the'pledgee a right to the possession or use of the rings as reset.</p> <p>3. Same — Conversion.</p> <p>Where the pledgee of diamond rings has them reset and then presents them to another at a time when there was no default on the part of the pledgor, there is a conversion of the rings upon the part of both the pledgee and his donee, and both become tort-feasors as to the pledgor.</p> <p>4. Same — Sale.'</p> <p>Where the pledgor is in default the pledgee cannot extinguish his title except by sale of the pledge after due notice.</p> <p>5. Same — Transfer of pledge.</p> <p>A transfer of the property pledged will not generally carry with it the "debt for which the pledge is made. And the possession of the pledge alone upon the part of another party does not furnish any conclusive evidence of the ownership of the debt secured by the pledge.</p> <p>.6. Same — Tender.</p> <p>Where the pledgee has voluntarily discharged himself from returning the things pledged, a tender of the amount due is unnecessary, for the law does not require vain and nugatory acts.</p> <p>7. Conversion — Bight of possession.</p> <p>Where a pledgee wrongfully terminates the pledge bailment as, for example, by gift of the pledged property, the right of possession by the pledgor is given to him by the very act of conversion, and he is immediately placed in a position which will enable him to sustain an action for the conversion.</p>

Appeal by defendant, from order granting a new trial made by the justice of the Eleventh District Court, after verdict, in favor of defendant. ' '

<p>Appeal by the defendant from a judgment in favor of the plaintiff for $100 upon a check dated June 15, 1896, given by the defendant to the plaintiff, payment upon which was stopped.</p>

<p>1. Hegligence.</p> <p>Where .'grocerymen, who have for many, years employed others to roast coffee for them, send to these persons a bag of coffee which contains a stone weighing • twenty-six pounds, and this, passing through the coffee roasting machine, breaks and damages it, the persons owning the machine cannot recover of the grocerymen, in the absence .of any proof of a similar occurrence, or that the grocerymen knew of the existence of the stone in the bag; the bag having been purchsed fromv a coffee broker and having remained untouched as sent to the grocerymen by him.</p> <p>8. Bailments — Degree of care.</p> <p>Bailors who hire the performance of work are bound merely to ordinary care, and, in the absence of knowledge or notice of the defect, they are not bound to inspect the contents of a bag of coffee, a thing which is not, in its nature, dangerous in any aspect.</p> <p>3. Evidence.</p> <p>The fact that the bailors demanded of the broker that they be allowed the difference in the price of the bag which arose from the weight of the 'stone, is not sufficient in any manner to charge the bailors with negligence for the presence, in the bag, of the stone; the transaction constituting merely a natural adjustment of the rights arising under the sale.</p>

<p>1. Form of action — Waiver.</p> <p>Where a workman brings an action to foreclose. a lien for work done upon goods, and, when the cause comes to trial, the justice instructs the plaintiff to deliver the goods to the defendant, and this is' done, and the summons and complaint are amended so as to claim for work, labor and services, and the trial proceeds, the defendant cannot subsequently object that as the plaintiff has surrendered the goods he cannot foreclose his lien upon them. The rule is, that where a party, by not objecting, consents to litigating questions not technically within the issues, he cannot insist, upon an appeal, that the recovery was not had upon a cause of action specifically alleged in the complaint.</p> <p>2. Practice — Objection too general.</p> <p>It is not a ground for the dismissal Of a complaint that the plaintiff has failed to prove the cause of action alleged, for such an objection is too general and fails to point out any specific defect in the proofs.</p> <p>3. Same — Motion to dismiss.</p> <p>Where no motion is made to dismiss upon the close of the case, the defendant cannot allege, on appeal, that the judgment was without evidence, or that it wa's against the weight of evidence.</p> <p>4. Bailment — Loss of thing.</p> <p>The rule is that if, while work is being done upon a thing belonging to the employer, the thing perishes by internal defect or inevitable accident, without any default of the workman, the latter is entitled to compensation to the extent of his labor actually performed upon the thing; for the maxim is that the thing perishes to the master.</p> <p>5. Bailments — Lien.</p> <p>A workman has a lien for his work and may detain the things upon which he has worked until the lien is discharged by payment or tender.</p>

<p>Appeal by the plaintiff from a judgment in its favor which was rendered by the District Court in the city of New York for the third judicial district upon an agreed state of facts.</p> <p>Action to recover upon a policy of fire insurance issued by the defendant and his associates as underwriters or insurers, each of such underwriters or insurers having individually assumed to pay a specified proportion of the insurance.</p>

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

<p>Appeal from judgment of the Seventh Judicial District Court in favor of the defendant.</p>

■ Appeal from a judgment of the District Court in the city of Hew York for the first judicial district, rendered by the justice, without a jury, in favor of the plaintiff. Action for damages for fraud and deceit.

<p>1. Bills and notes — Action upon the original debt.</p> <p>Where attorneys accept an indorsed note as a conditional payment for their services, and fail to present it for payment at maturity at the place where it is made payable, although the money for its payment is at the place designated, they cannot subsequently bring an action for their services, upon its trial offer to surrender the note and recover of the maker of the note its face and costs.</p> <p>2. Same — Tender.</p> <p>Where the money requisite to the payment of a note is at' the place of payment upon the proper day, the effect is to prevent the holder of the note from recovering interest or costs, and, if the tender is kept good, it is erroneous for the court to allow the holder to recover in a subsequent action brought upon the original debt.</p>

Appeal by the defendant from a judgment of the justice of the Eighth District Court, in plaintiff’s favor, in an action for the rent. of the premises in an. apartment-house for January and February, the defense being the eviction by reason of plaintiff’s failure to supply the apartment with heat sufficient to make it fit for occupancy as a dwelling place, and to prevent the continuance of loud noises caused by steam pipes in the building.

Appeal by the plaintiff from a judgment of the Eleventh District Court, in favor of the defendant, in an action for three months’ rent of an apartment in the house Ho. 324 West Fifty-seventh street, in this city. The months sued for are March, April and May, 1896.

Appeal by defendant from a judgment of -the Ninth District Court in favor of the plaintiff, for $44.66 for commissions on certain accounts given to the plaintiff by the defendant for collection.

<p>1. Funeral expenses — Original promise of a debtor of the deceased.</p> <p>Where the employer of a person who dies, tells the undertaker who ■ wishes to know who will pay the expenses of burial, that, he has $325 of the deceased, of which he has spent $25, and also states that the deceased was insured for $125, which would go to his son, and that the undertaker ought to try and get the bill from the son, and specifically says to the undertaker that if the son does not pay him, the defendant will, the. promise is original arid the Statute of Frauds has no application.</p> <p>3. Same — Executor de son tort.</p> <p>In such a situation the defendant is liable a,s an executor de son tort to the legal representatives of his employee for the money of the latter. And had the son paid the funeral expenses he could have recovered them from the legal administrator, who would in turn have had his remedy against the'defendant. .</p> <p>3. Burial.</p> <p>The Individual under whose roof a poor person dies is bound to carry the body, decently covered, to the place of burial.</p> <p>4. Statute of frauds — Must be pleaded.</p> <p>Unless the Statute of Frauds is pleaded the defense is waived.</p>

<p>Life insurance — Soliciting agent — Commissions.</p> <p>Where a soliciting agent induces a person to make an application for a policy in his company for $5,000, and subsequently another agent of the same .company induces the applicant to withdraw from that contract and to substitute an application for, and actually receive, a policy for $10,000, in the same company, the first agent is only entitled to commissions on $5,000, notwithstanding the fact that he was the person who introduced the insured to the company and, probably, was the indirect means of bringing about the additional $5,000 worth of insurance.</p>

Appeal by the tenant from final orders of the justice of the Eleventh District Court removing him from .the premises Ho. 125 Amsterdam avenue, which he claimed to hold under lease from the father of the plaintiff.

<p>1. Court — Judicial notice.</p> <p>Courts may take judicial notice of the fact that it is not usual, upon the execution of an executory contract for the sale of real estate, to take an affidavit from the vendor as to the actual condition of the incumbrances upon the property, nor to deposit the earnest money in a trust company to await the result of the examination of the title.</p> <p>2. Negligence — Attorney.</p> <p>Negligence is not to be presumed upon the part of an attorney, and must always be proved, in order to negative the presumption which exists that every person does his duty. -</p> <p>3. Assignment — Consideration.</p> <p>Where a claim has been assigned in due form by an instrument under seal, the adverse party is not entitled to inquire into the consideration nor to show, by the assignor, that he is still interested in the claim:</p> <p>4. Witness '— Credibility.</p> <p>Nor can the consideration of an assignment be inquired into with a view to affect the credibility of the assignor as a witness.</p> <p>5. Same — Interest.</p> <p>The interest of a witness does not disqualify him from testifying, nor can it be said, as a matter of law, that more weight should be given to the testimony of one witness than to that of another, because one of them is interested while the other is not. The fact of the interest of the witness may, however, affect the weight of his testimony.</p>

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

<p>Evidence — Custom.</p> <p>Where an actor sues for his wrongful discharge, and the defendants’ claiming that a theatrical contract is terminable upon two weeks notice from either party," asks the plaintiff, upon cross-examination, what meaning, in theatrical circles, the expression “ subject to all rules and regulations of the company ” had when used in such con-, tracts, and the court .excludes the answer, but the witness subsequently testifies that there is no custom with respect to notice being given or received under such a contract, the exclusion of the evidence is not erroneous, because it is clear that the answer of ’the plaintiff would not have assisted the defendants.</p>

<p>Appeal by the plaintiff- from a judgment dismissing the complaint rendered by the Ninth District Oourt.</p>

<p>Action for judicial settlement of accounts.</p> <p>The opinion states the facts.</p>

This action was brought by the plaintiff as a property owner upon the line of Whitesboro street in the city of Etica, to restrain defendant from constructing, maintaining and operating an electric street railroad in said street between its junction with Lafayette street upon the east and Saratoga street upon the west. A preliminary injunction, pending suit, was granted to accompany the summons, and this motion is now made by defendant to vacate said injunction order.

<p>Application - for judgment in an action' -brought to' procure a construction of a will.</p>

<p>Action upon contract. The opinion states the facts.</p>

<p>1,. Administrators — Authorized-only to prosecute a claim — Satisfaction of judgment by their attorney.</p> <p>Where the attorney of administrators who have been appointed pur- , . . suant to section 2664 of the Code of Civil Procedure, and empowered merely to prosecute a claim for the negligent killing of an infant child, assumes to satisfy a judgment, recovered by the administrators, and - gives a release which is forged, upon the payment of a sum less than the amount named in the judgment, the satisfaction is void and does not affect the rights of the administrators.</p> <p>,2.‘ Same — Estoppel.</p> <p>Where the complaint in such an action alleged generally that letters of administration were issued to the plaintiffs, and the trial was conducted upon the assumption that the letters were of that character. Held, that in view of the fact that- an attorney has a right to receive part payment upon a judgment, the defendant who had in good faith made a part payment to the attorney in satisfaction of the judgment, should be allowed the benefit of the payment as one made to that extent upon the judgment.</p>

Final accounting of committee of person and estate of a lunatic. Proceedings to charge committee with moneys alleged to-have been improperly expended.

<p>Liquor Tax Law — Transfer of certificate.</p> <p>A.county treasurer is not justified in refusing to allow a person who holds a liquor tax certificate to transfer it to another, upon the ground that a verbal complaint has been made against the holder of the certificate that he was carrying on the liquor business in a room which connected with his grocery, such an act being a violation, of section 22 of the liquor tax law.</p>

<p>Motion to strike cause from calendar. -</p>

<p>Insurance — Territorial limitation of liability.</p> <p>A farmers’ mutual insurance company, organized under article 10 of chapter 690 of the Laws of 1892, and limited to do business in Niagara and Orleans counties, insured- a farmer in the county of Niagara, “ on live stock in and near said barns (on the farm), against fire, and elsewhere in Orleans and Niagara counties against lightning.” And in pursuance of a by-law. of the company directing that fancy stock should be especially designated and a valuation placed upon each one insured, the horse, in question was specially designated and a valuation placed upon it. The animal, which was a trotting horse, was taken to the Buffalo Driving Park, in the county of Erie, and was there burned to death. Held, that while the Insurance Law forbid the company to write policies on farm buildings and live stock outside the counties of Niagara and Orleans, it contemplated that the company should furnish adequate insurance to farmers residing in those two counties against the destruction of their property by fire, and that as there was no special restriction clearly stated, as to the territory where the property must be destroyed in order to render the company liable, the protection of the policy would, in the case of a trotting horse, be extended to the horse while he was away from the farm and upon a track in the county of Erie, to which he had been taken temporarily for the purpose of being trained.</p>

<p>Motion by plaintiff to set aside judgment and for leave to amend •complaint.</p>

<p>Application to review the decision of the board of police of the city of New York in détermining that the certificate of nomination filed on behalf of Lawrence E. BroWn for the nomination as ", member. of assembly in the twenty-ninth assembly district be accepted and that' his name' be ordered printed as the regular '. nominee of the Republican party for said office, and that the. Certificate.ofSamuel GL French for the same office' be rejected.</p>

Application to review the decision of the secretary of state in determining that James S. Sherman was entitled to have his name printed upon the official ballot as the regular Republican nominee' from the- twenty-fifth congressional district in this state, and that Seth Gr. Heacock was not so entitled.

Actioet of ejectment to recover the northeast quarter of. Township. 38, Totten & Crossfield’s ..purchase, Hamilton county, except 1,000 acres. The plaintiffs claimed title under the original patent to Alexander Macomb. The defendant claimed title under the tax sale of 1843, the comptroller’s deed based thereon to the people of the state of New York, the title so acquired by the state having passed by ■mesne conveyances to the defendant.

<p>1. Chattel mortgage — Leasehold interest.</p> <p>. The act relative to chattel mortgages and known as' chapter ,279. of the Laws of 1833, does not extend to leasehold interests in real estate or “ chattels real,”' as they are elsewhere called in the statute law of the state.</p> <p>3. Same — Same.</p> <p>Where a mortgage, given by a company to a corporation as trustee, to secure the payment of its bonds, covers leasehold premises owned by the.company, and- also chattels constituting a theatrical equipment, the mortgage need not, so far as relates to the leasehold, be réfiled annually. . |</p> <p>3. Same — Same.</p> <p>This view of the law has been taken for many years, and considering the first section of the Statutory Construction Law, being chapter 677 of the Laws of 1892, providing that the provisions of that law shall be applicable to every statute unless, its general object, or the context of the language construed, or other provisions of law, indicate that a different meaning or application was intended from that required to be given by that chapter, it must be held that there is nothing in sections 3 and 4 of the Statutory Construction Law, defining real and personal property, which require any construction bringing mortgages on leaseholds within the scope of the act relative to chattel mortgages passed in 1833.</p>

<p>Action for an accounting.</p>

<p>Motion by plaintiff to modify a judgment of absolute divorce.</p>

. Action to recover the sum of $934.67, with interest, being amount of payments made by the plaintiff’s assignor,. Horatio- G-., Gibson, to the defendant, under calls for annual dues and assessments upon policy of insurance numbered 25,375, issued by the defendant to Gibson on or about September 10, 1889.

<p>Excise — Consent of owners of neighboring dwellings — Exception.</p> <p>An abandonment of premises by the person who carried on a liquor business thereon at the time the Liquor Tax Law took effect' deprives the premises of their privileged character under the exception in subdivision 8 of section 17 of said act, and a subsequent applicant for a certificate must obtain the consents of two-thirds of the owners of dwellings situated within 200 feet.</p>

Ceetiobabi to review the determination of John 0. Lammerts, as county treasurer of the county of Niagara, in refusing to issue a liquor tax certificate to relator.

<p>Negligence — Constructive notice.</p> <p>Where an action by a saleswoman is predicated upon the negligence of her employers, in that she was injured because a basket fell from a cash-carrying machine operated in the store of the defendant, testimony is admissible showing that within a reasonable time before the accident similar baskets fell from the same machine; Such testimony tends to prove the dangerous condition of the machine and. inferentially that, because of the lapse of time and the frequency of these events, the defendants had constructive notice of the condition of the machine.</p>

<p>Appeal from an order vacating a warrant of attachment.</p>

<p>Appeal from a judgment entered in favor of the plaintiff.</p> <p>Action for conversion.</p>

<p>Bill of particulars.</p> <p>It is not the office of a bill of particulars to apprise the opposite party of the names of witnesses likely to be produced upon the trial; nor should such a bill, in an action for goods sold, require the plaintiffs to state the dates of orders upon them sent by the defendants, and whether any and all the goods were returned to the plaintiff, with the date of such return. A party must have better knowledge of his own acts than his adversary can have.</p>

<p>Prosecuting as a poor person — Cause of action.</p> <p>Although section 460 of the Code of Civil Procedure provides that leave may be given to a poor person to prosecute as such, and that the court, it satisfied of the truth of the facts alleged, and that the applicant has a good cause of action, may make an order permitting such prosecution, yet where the plaintiff’s only proof of a cause of action predicated upon negligence was its statement, in general terms, and upon information and belief, and the defendant submitted affidavits in rebuttal, made upon knowledge, by two of the witnesses of the accident out of which the plaintiff’s- cause of action was alleged to have' arisen, and the plaintiff failed to make any. reply to these affidavits. Held, that the fact that the alleged poor person had a good.cause of action was not made out.</p>

Appeal by defendant from so much of order opening its default as requires it to stipulate that in case plaintiff’s wife, a witness, dies before this cause is tried, the plaintiff may enter final judgment upon the decision and findings of. the jury on the inquest already taken upon such default.

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

<p>Appeal by defendant from interlocutory judgment overruling his demurrer to the complaint.</p>

Appeal by plaintiff from judgment on dismissal of complaint on the merits, after refusing plaintiff’s request to be allowed to go to the jury on certain questions specified by his counsel.

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

<p>Brokers — Commissions.</p> <p>In an action brought by brokers for commissions in exchanging the property of the defendant for a house in Willett street, owned by ona Grunwald, the defendant alleged that the plaintiffs made representations in regard to the Willett street property which were false. The parties made a written agreement, and when, later in the day, a more formal con tract was to be drawn up, the defendant refused to sign it upon the ground that the plaintiffs 'had stated that the Willett street property rented for $3,500 annually, when, in fact, the rent did not exceed $3,200. The defendant . admitted by his testimony that before he signed the informal agreement he went and saw the property in Willett street and inquired of the tenants about the rent they were paying, but he did not testify to the amount of that rent. Held, that the plaintiffs were entitled to recover, ,as the defendant apparently relied upon his own knowledge of the Willett street property, and in any view had not made out his defense that the rental did not exceed $3,200.</p>

<p>Contract — Custom.</p> <p>Where an actress alleges a special agreement engaging her services to play an inferior part, for the theatrical season, at a salary named, the defendant has a right to prove a uniform custom in such cases that the parties shall execute a contract in writing containing a clause reserving the right to either party to terminate the contract on two weeks’ notice. Such evidence is not competent nor admissible to change the contract, but is admissible as proof of what the contract was and as bearing upon the probabilities. '</p>

<p>Appeal from an order setting aside the service of an order in supplementary proceedings.</p>

<p>Lease — Damages.</p> <p>Where a lease, among other things, provides that if the tenant does not pay his rent or makes default in any manner, the landlord may re-enter and relet the premises as agent of the tenant and hold the tenant for any deficiency and for any damage that may be caused by or through such entry or reletting, and the tenant abandons unjustifiably, and the landlord relets, the latter is entitled to recover as damages for the breach, by the tenant, of the covenants in the lease, as much as the rent stipulated in the lease. And where the landlord does his best in securing a new tenant the former tenant must pay any deficiency.</p>

<p>1. Contract — When severable.</p> <p>Where a contract provides for deliveries of certain clasps monthly, and-contemplates monthly payments for the same, the contract is severable and not entire.</p> <p>3. Same — Bar.</p> <p>The rule that when several demands under one contract have accrued and judgment is recovered upon one of them such 'a recovery constitutes a bar does not apply when the cause of action at bar had not accrued when the former action for the judgment, so recovered was commenced.</p>

Appeal by defendant from judgment rendered against it in favor of plaintiff for the value of certain baggage, claimed to have been lost by it.

<p>Assignee for creditors — Counterclaim.</p> <p>Where a person gives her notes to a firm for their accommodation, and the firm subsequently makes a general assignment and then have a claim against her for. goods sold, and the notes become due after the assignment, she cannot set oS the amount of the notes as a counterclaim against the demand of the assignee for creditors arising out of the goods sold and delivered to her by the firm.</p>

<p>Appeal from judgment in favor of defendant on verdict of jury directed by the court.</p>

<p>1. Negligence — Riding on front platform.</p> <p>The fact that the plaintiff was riding as a passenger upon the front platform of a street car where he was directed to go by the driver because he was smoking, does not constitute negligence in him as matter of law.</p> <p>2. Same — Railroad.</p> <p>Where the evidence in an action leads to the conclusion that the driver of a street car was running it down hill at an unusual speed while approaching a switch which he knew to be dangerous, and that the car struck the switch throwing the plaintiff into the street, there is sufficient evidence of negligence on the part of the driver to maintain a verdict for the plaintiff against the defendant corporation.</p>

<p>Contract — Board and tuition — Damages.</p> <p>Where there is a breach of contract by the father of a pupil who is to be taught and instructed at a school, in that he withdrew his son from the school soon after the beginning of the second semester, the damages recoverable by the person conducting the school are prima facie the’ amount stipulated in the contract for the full term. While the law imposes upon the injured party the active duty of making reasonable exertions to render- the damage as small as possible, the burden is upon the plaintifE to show that the damages alleged to have been sustained could have been prevented, or that they were less than the contract price.</p>

<p>Appeal from order denying motion-of defendant to dismiss proceedings supplementary to execution.</p>

<p>Appeal by plaintiff from judgment on verdict of jury -directed by the court.</p>

Application of Patrick McDonnell, a candidate for member of assembly in the first assembly district, of Erie county, for an order permitting an inspection of the ballots voted in the fourth election district of the nineteenth ward of Buffalo, at the. general election held on November 3, 1896.

<p>Action to recover damages for breach ,of covenants in a deed.</p>

<p>Motion at Special Term to compel purchaser at foreclosure sale to complete purchase.</p>

Petition presented at Special Term for order directing committee. to pay attorney for services rendered the estate on the employment of the committee.

<p>Creditor’s bill. The opinion states the facts.</p>

<p>Negligence — Landlord and tenant — Pleading.</p> <p>The complaint in an action brought by a tenant against the landlord for personal injuries sustained by reason of the fall of plaster from the ceiling of his apartments, in order to state a cause of action,, must allege that defendant knew or had reason to know that the ceiling was dangerous or unsafe .at the time of letting and failed to disclose the fact, or that he agreed to repair it or make it safe and failed, to do so.</p>

<p>•Motions and orders — ¡Resettlement.</p> <p>1 Where o'né party to tin action procures the other to consent to a resettlement of an order by adopting his own phraseology, he is riot in a positiori to-require the court to again resettle it by restoring the original order.</p>

.. Appeal from final order made by the justice of the Eighth District .Cpurt, dismissing a proceeding, under section 2259 .of the Code, in redemption from previous summary, proceedings,

<p>Appeal from an affirmance liy the General Term of the City Court of. a final judgment in favor of the plaintiff upon demurrer to the complaint.</p>

<p>Appeal by the plaintiffs from an affirmance by the General Term-, of the City Court of an order vacating warrant of attachment.</p>

<p>•1. Sale — Ratification Of acts of purchasing agent.</p> <p>Proof that a portion of the goods ordered by an employee were delivered to and retained by the employers for forty days, without objection, and that such goods were included in the trade catalogue issued by him, is ■ sufficient to authorize a finding that such retention of the goods amounted to an acceptance and a ratification of the employee’s act.</p> <p>2. Appeal — Questions reviewable. -</p> <p>On an appeal from the City Court of New York, the Appellate Term cannot review .the charge without an exception.</p> <p>3. Same Admission ;of evidence.</p> <p>The admission of letters of an alleged agent before there is any proof of his authority is not reversible, even when such proof is subsequently given . or ratification shown.</p>

Appeal by plaintiff from Order of the General Term of the City .Court sustaining the defendant’s exceptions, reversing judgment directed in favor'of plaintiff, and ordering judgment absolute for the defendant and against the plaintiff personally for costs of the action.

<p>•Appeal "by the-.defendant from a judgment of the City Court of Rew York, at. General Term, which affirmed a. judgment for the.plaintiffs, rendered, upon a verdict in- their favor- at Trial Term.</p> <p>Action. to recover, the plaintiffs’ charges as warehousemen*. • claimed under a contract, for the. storage of the- defendant’s furniture.</p>

<p>1. Life insurance — Effect of-Agent filling application —Estoppel.</p> <p>Where the agent of an insurance company fills up" the blanks and signs the name of the applicant without any declaration being- made by the applicant, his acts are those of the company and it is estopped from claiming a breach of warranty as a defense to the policy.</p> <p>3. Same — False representation's — Proofs of death.</p> <p>A statement in a physician’s certificate furnished by the beneficiary as part of the proofs of loss which contradicts the representations in .the application will constitute prima facie evidence against the plaintiff as an * admission, which may, however, be rebutted by testimony that such statement is not true. ' "</p>

Appeal by the plaintiff from a judgment in favor of the defendant rendered by the justice of the Fourth District Court in an action for the - recovery of salary as superintendent -of the New York Watch Company.

<p>Landlord and tenant — Deposit.</p> <p>Prior to the termination of a lease the tenant met with an accident which necessitated his removal to a hospital, whereupon the landlord relet the premises without notice to him. Held, that the lease was thereby terminated, and that the tenant was entitled to a return of the deposit made by him and which was specified in the lease to be the rent for the last month.</p>

Appeal by the defendant from a judgment for the plaintiff, rendered by the District Court in. the city of ¡New York for the Eighth Judicial District. Action for the fair and reasonable value of the plaintiff’s services as a dentist, rendered to the defendant’s infant daughter, at the request of another who was intrusted with the temporary custody of the infant.

<p>1. Principal and .surety — Discharge of surety.</p> <p>The agreement which will discharge a surety is one made by a creditor with his debtor without consulting the surety,' for- the reason that the surety never made himself á party to the new agreement.</p> <p>2. Lease — Cancellation.</p> <p>The .assignee of a lease for a term of years covering six rooms not requiring so much room, defendant, who was surety on the lease, induced the lessor to “ take three rooms off his hands,” and reduce the rent. Held, that the lease was not thereby canceled, nor defendant’s liability as surety discharged.</p>

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

<p>Appeal from judgment of the Seventh Judicial Court rendered in favor of the plaintiff.</p> <p>Action for rent.</p>

<p>Services — Liability of party requesting performance of.</p> <p>One who requests a physician to attend another person, without disclosing that he is acting only as the agent of such other person, becomes liable to pay the physician’s bill for services performed in accordance with such request.</p>

<p>Appeal by plaintiff from judgment of the' Ninth District Court.</p>

<p>1, Negligence — inevitable accident.</p> <p>A driver who, by his negligent misconduct, gets so near another' vehicle as to make an accident inevitable cannot obtain a discharge from liability on the ground that such accident was inevitable.</p> <p>2. Same — Conflicting evidence.</p> <p>While the carriage in which plaintiff was riding was standing still to allow a cable car to pass, the driver of defendant’s wagon, which had been following it at a. distance of ten feet, drove his horse in such manner that in turning the corner one of the shafts ran through the panel of plaintiff’s carriage. Defendant claimed that plaintiff’s carriage stopped suddenly and backed up against the -shaft, which was denied by plaintiff and her witnesses. Held, that the decision of the justice in favor of the plaintiff would not be disturbed.</p>

<p>Appeal from'a judgment of the Eighth Judicial District Court rendered by the justice, without a jury, in favor of the plaintiff.</p>

Appeal by the defendant from a judgment of the justice of the Fifth District Court in favor of the plaintiff for $191.52 damages, besides costs. The action is for conversion of certain tailors’ cloths, parts of lots delivered to the defendant upon his agreement to pay for or return the same.

<p>Appeal from a final order in summary proceedings made in favor of landlords-petitioners, for the possession of certain premises, by the justice of the Third Judicial District Court, after trial before such justice without a jury.</p>

<p>Appeal by. the defendant from a judgment of the justice of the Eighth District Court in favor of the plaintiff for $99, besides costs, in an action brought to recover back moneys received by the defendant for the use and occupation of a stand in the street in front of his premises.</p>

<p>Appeal from final order in supplementary proceedings made the 16th day of July, 1896, in favor of the tenant-defendant for the dismissal of the proceedings, by the justice' of the. Third Judicial District Court. ' -</p>

<p>Appeal from judgment of Sixth Judicial District Court. rendered in favor of the defendant.</p> <p>Action for rent.</p>

<p>Appeal by tenant from final order made in summary proceedings by justice of the Eighth'District Court.</p>

<p>1. Assault — What constitutes.</p> <p>A threat of bodily harm, accompanied by an uplifted fist or hand, or by a threatening gesture, with intent to strike, and sufficiently near to execute such designs, constitutes an assault. A mere menace,' unaccompanied by an attempt or threat to strike, is not an assault.</p> <p>2. Battery — What constitutes.</p> <p>A battery, as distinguished from an assault, is where the person is actually struck or touched in a violent, angry, rude ór insolent manner. Every laying on of hands is not a battery. Intention must be considered. The. mere touching or placing of hands upon -the person of another for the purpose of drawing attention is not a battery. To cpnstitute a battery, the intent to injure must concur with the use of unlawful violence to the person assaulted; but the slightest degree of force suffices to constitute violence, and the intended injury may be to the feelings as well as to the corporeal person.</p> <p>3. Same — Damages.</p> <p>For assault and battery, unprovoked and maliciously, willfully and wantonly committed, punitive damages may be awarded.</p>

<p>Application for an order revoking j and canceling a liquor tax certificate..</p>

<p>In 1892 Elvira Bussell conveyed certain land to Henry L. Brown by a full covenant deed of conveyance. Through a chain of title made up of several subsequent conveyances by similar deeds, Minnie Brown finally became the owner. At the time of the execution and delivery of the first-mentioned conveyance there were unpaid taxes constituting a lien upon the land, and the said lien remained until the said last-named grantee paid the said taxes. She assigned her right of action to recover the amount so paid to the plaintiff, who brings this action, for damages for breach of the covenant against incumbrances, against the executors of the said first grantor, Elvira Bussell. The court directed a verdict for the plaintiff for the amount of the taxes paid, with interest. Motion to set the verdict aside, and grant a new trial.</p>

Motion at Special Term for new trial on a case. The action was tried before Justice Ward with a jury at the Niagara Circuit, in September, 1894, and plaintiff recovered a verdict of $9,000.

<p>Motion for order allowing plaintiff to sue defendant on judgment recovered in an action between the same parties.</p>

<p>Costs — Justice’s Court.</p> <p>Where an offer of judgment for a specified sum is made and accepted upon an appeal from a justice’s judgment, the party in whose favor the judgment is entered cannot tax costs before notice of trial, but is entitled to recover only his disbursements, including the costs of the court below and the return fee.</p>

<p>Negligence — Municipal corporations.</p> <p>Before a municipality can be made liable for defects in a sidewalk' not arising from its construction, express notice must be brought home to it or the defect must have been an obvious one and existed for a sufficient length of time to give the officers of the corporation opportunity to learn of it.</p>

<p>1. Elections — Failure of public officer to perform duty.</p> <p>Lists of proposed election officers having been authenticated and filed by the local organization recognized as regular by the last state convention of the party, defendant, as mayor, examined and refused to appoint the men whose names appeared on said list and also on a supplemental list duly filed, and appointed in their stead persons who were not members of the party. Held, that this constituted an omission, refusal and neglect to perform a duty required by the Election Law, which is a criminal offense under section 41 of the Penal Code.</p> <p>2. Same — Parties.</p> <p>No local faction or organization is in and of a party and entitled to representation in the election officers unless it is recognized by and thus actually in. and of the state party organization.</p>

<p>1. Easement — Extinguishment.</p> <p>• An easement becomes extinguished when the titles to- the dominant and •servient tenements become unified.. r ■ •. • •</p> <p>3.. Same -^-Way of necessity.</p> <p>'There is an. implied reservation of right of.way in favor of the grantor when the servitude is apparent and the necessity exists.</p> <p>3. Same — Location.</p> <p>It is the right of the owner of the servient tenement to locate the way.</p> <p>4. Estoppel —Failure to plead judgment in former suits.</p> <p>A judgment when not pleaded is admissible in evidence, but conclusive only upon questions actually litigated.</p>

<p>1. Contract — Agreement to leave property by will.</p> <p>A parol agreement that a child should, at the promisor’s death, have all his property, subject to the interest of his widow, made iñ consideration of the adoption of such child and her living with him as his daughter, is valid and imposes a trust upon the property, binding upon the promisor’s heirs, devisees or even purchasers with notice.</p> <p>2. Same — Specific performance.</p> <p>An action for specific performance of such agreement may be maintained where the widow fraudulently procured the making of a will leaving.all the property to her.</p> <p>3. Same — Parties.</p> <p>The heirs are hot necessary parties to such an action, but' are proper parties to prevent future litigation.</p> <p>4. Pleading Misjoinder of causes of action.</p> <p>A cause of action against one person for fraudulently procuring a conveyance of property from a decedent in his lifetime cannot be joined with a cause of action against another for fraudulently procuring the making of a Will cutting off the plaintiff’s rights.</p>

<p>Certiorari — Return by comptroller.</p> <p>When the return of the comptroller to a certiorari to review his determination in relation to corporate taxes contains all the evidence and proceedings before him, including his decision, he cannot be required to add items and particulars, to such decision and then to return them.</p>

<p>li Municipal corporations -- Inspectors of buildings — Qualifications.</p> <p>One who has devoted himself for several years to the drawing of plans for,, and the construction of, buildings and who is competent to devise, direct and supervise the construction of buildings of all kinds, is a practical building mechanic within the meaning of the provision of the charter of Buffalo relating .to the appointment of . inspectors of buildings.</p> <p>8. Same — Civil service.</p> <p>Where the civil service commission of the city has granted a cer- ■ tificate of fitness for such office, the board of aldermen cannot question the legal qualification of the appointee.</p> <p>3. Same — Mandamus.</p> <p>When the right of the officer to payment is clear mandamus will lie to compel the board of aldermen to order the proper warrant drawn.</p>

<p>1. Bond — For faithful performance by cashier.</p> <p>Where the original appointment of a cashier was for an indefinite period and the by-laws of the bank provide that his appointment ghnll be during the pleasure of the board of directors and the statute ' under which the appointment is made authorizes, such.-appointment, until he is dismissed at the pleasure of the board, his official term continues until he is dismissed, and his formal re-election annually thereafter at the time of fixing his salary for the ensuing year does not change his official term or limit it to an annual one, and a bopd which is general and unlimited as to its period, given by him at the commencement of such term, continues and covers all defalcations during the entire period of the performance of his duties.</p> <p>2. Pleading — Counterclaim.</p> <p>A plaintiff, by omitting to reply, does not waive an objection that the matter alleged in the answer does not give a right to a counterclaim.</p> <p>3. Same.</p> <p>In an action against the sureties on the bond of a bank cashier, the answer of one of the defendants. alleged as a counterclaim that said cashier had deposited with the other surety certain securities to be' applied as payment on any sum that the sureties might become liable' to pay and that the cosurety had delivered such securities under protest to the bank, which still held them, but did not further connect said' defendant with such securities, nor allege that he had requested his cosurety to bring suit for their recovery. Held, insufficient to constitute a counterclaim.</p>

<p>Action for specific performance.</p>

<p>1. Receiver — Foreign corporations.</p> <p>The courts oí this state have no jurisdiction to appoint a receiver of a foreign corporation for the purpose of winding up its affairs, nor to sequestrate its property with a view to distribution pursuant to section 1784 of the Code.</p> <p>2. Same.</p> <p>Where, however, an answer is interposed and the complaint shows defendant to be a foreign corporation with its principal place of business in this state; the recovery of judgments against it and the return oí unsatisfied executions thereon; insolvency of the defendant; fraudulent disposition of its property in this state and the necessity of-a receiver to reclaim that property for the benefit of the plaintiffs, judgment creditors^ a cause of action is disclosed to authorize the appointment of a receiver and the appropriation of defendant’s, property to the satisfaction of the judgments.</p> <p>3. Creditor’s action — Judgment.</p> <p>Judgments upon which a creditor’s action proceed are not. void because, purporting to be by default, the defendant had in fact duly answered and tendered material issues for' trial. Such judgments would be voidable only for irregularity, and are hot open to' attack in such action.</p>

<p>T6ial by the court without a jury.</p>

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

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

<p>1. Depositions — Affidavit;</p> <p>An affidavit to procure an examination of a party before trial may be made by a third person having knowledge of the facts.</p> <p>$3. Same — Examination before trial.</p> <p>In an action upon a contract made by an alleged agent the defendant denied the agency or authority of such person to make the contract. It appeared that plaintiff was unable with due diligence to find such alleged agent and defendant was ignorant of his whereabouts. Held, that, under these circumstances, plaintiff was entitled to examine defendant before trial as to the authority of the alleged agent to make the contract.</p>

<p>Appeal from order dismissing the complaint for failure to file security for costs.</p>

<p>Appeal from order of reference.</p>

<p>Principal and agent — Testimony of agents, as to authority.</p> <p>On an issue as to the existence of an agency, it is,improper to allow the alleged agents to testify that they had authority to act as such, as this is merely a conclusion.</p>

<p>I. Poor person—Leave to sue as.</p> <p>Where the complaint sets up a good cause of action and the truth of. the 'facts set up in. the 'petition, is not controverted,', the plaintiff is. entitled to have his motion for leave, to sue as a poor person granted as: matter of. right. ’</p> <p>2; Samé — Petition must be controverted by affidavits.</p> <p>The truth of the facts alleged, in the petition, and. the. sufficiency Of the: . plaintiff’s, cause- of action can be- controverted, only" by affidavits; the-answer is: not available for that purpose;.</p> <p>3. Same.</p> <p>A motion for leave to sue as a poor person may be made after- the answer is served- where there is. no unnecessary delay. '</p>

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

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

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

<p>Negotiable paper — Bona fide holder.</p> <p>One who accepts from the payee thereof the note of a third person in lieu of the proceeds of a discount of another note by such payee, without not'icé of any. diversion, is a bona fide holder for value to the extent of. such proceeds, and entitled to recover.</p>

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

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

<p>1. Evidence — Hypothetical question.</p> <p>A hypothetical question which 'assumes facts as to which there is no evidence' is improper and cannot furnish the basis of an opinion by an expert. ■</p> <p>2. Negligence — Permanent injuries — Charge.</p> <p>Where there is no proof whatever of any permanent injury it is error to submit the quéstion to the jury.</p>

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

<p>Parties — Assignee of note real party in interest though assignor retains some beneficial interest.</p> <p>Delivery of an assignment of a note together with the note duly indorsed transfers the legal title thereto to the assignee, and he is legally the real party in interest and can maintain an action to recover on such note, although his assignor may have an ultimate beneficial interest in the recovery.</p>

Appeal by defendant Lehman from order denying his. motion to vacate judgment and enjoin sheriff from selling, on execution, his interest under an endowment and life insurance policy.

<p>Insurance — Lloyd’s policy — Provision as to actions on.</p> <p>The provision in a Lloyd’s policy of insurance that no action to enforce it should be brought except against the attorneys in fact representing all the underwriters and that each of the underwriters agrees to abide the result of any suit so brought as fixing his individual responsibility, cannot be enforced against the insured if he objects.</p>

<p>Negligence — Contributory.</p> <p>Plaintiff, a truck driver, was familiar with the locality of a railroad crossing and had béen warned by the foreman of his employer to be oareful while working around it, as it was a dangerous one. Before reaching the tracks on the occasion in question he stopped and looked and listened, but-his view to. the north was obstructed by cars standing on a side track.</p> <p>He then proceeded and looked south for trains, but did not look to tb,e north after passing the obstruction, until the instant before the truck was struck by a southbound train. Held, that he was guilty of contributory negligence in not stopping to look and listen after passing the cars-which had obstructed his view.</p>

<p>1. Appeal — Demurrer.</p> <p>An appeal will not lie from an order sustaining a demurrer to an answer with leave to amend.</p> <p>2. Same — Amendment of notice.</p> <p>A notice of appeal cannot be amended after the time to appeal has expired.</p> <p>3. Same — Amendment of undertaking.</p> <p>The court has no power to amend an undertaking on appeal without the consent of the sureties, for by so doing the liability of the sureties might bé increased.</p>

<p>1. Security for costs — Laches.,</p> <p>Neglect to promptly require security for costs at the first opportunity will defeat the application.</p> <p>2. Same.</p> <p>Failure of a defendant to apply for security for costs until after the service of the answer and notice of trial is a waiver thereof, unless defendant was ignorant of plaintiff’s nonresidence, and in such case he has the burden of proving his want of knowledge.</p>

<p>1. Costs — Poor person liable where recovery is less than §50.</p> <p>The fact that a plaintiff has been permitted to sue in forma pauperis will not protect him from the imposition of costs where his recovery in an action for personal injuries is less than.§50.</p> <p>2. Same — Code Civil Procedure, §§ 461, 3228.</p> <p>Section 461 of the Code makes no provision where the plaintiff is wholly or partially successful, but in such case section 3228 applies, and costs follow as in an action by an ordinary litigant.</p>

<p>Appeal from an order of the Special Term denying the. plaintiff’s motion to compel Messrs. Jones & Govin, attorneys for defendant, to accept notice of appeal.</p>

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

<p>Services — Proof of liability.</p> <p>Evidence sufficient to prove that defendants were joint owners of land and liable to plaintiff for services in surveying the same.</p>

<p>Excise — Assignment of certificate.</p> <p>An assignment of a; liquor tax certificate cannot be treated as a nullity or attacked collaterally by a receiver of the licensee; if he desires to question its legality he must do so by action to set it aside.'</p>

<p>1. Service—Deposit in post-office — Weight of evidence.</p> <p>An affidavit of the superintendent of a branch post-office in the city of New York that he believes the paper in question was mailed in one of the letter boxes within the district of said branch, which belief is based upon the stamp iipon the envelope, is not sufficient to overcome the positive sworn statements of two reputable witnesses that it was duly mailed in the branch office- itself.</p> <p>3. Judgment — Default.</p> <p>Where both attorneys reside or do business in the same city, plaintiff’s attorney is justified in entering judgment by default where he does not receive the answer by 11 o’clock on the day following the last day for its service.</p>

Ajppeal by the defendant from, an order denying the defendant’s motion to vacate an order of arrest upon the papers upon which the order was granted.

<p>Appeal from an order of the Special Term, granting the plaintiff’s motion to compel Messrs. Jones & Govin, defendant’s attorneys, to accept notice of trial.</p>

<p>"Benevolent societies — Proof of expulsion of member.</p> <p>In an "action against a-benevolent society by a widow for death benefit the defense alleged an expulsion of her husband for nonpayment of dues and assessments. No notice of such action had been'given, but’defendant endeavored to show a waiver of such notice by oral testimony of its secretary of admissions, and no-books or. minutes of the society showing ( V - the action taken at the meeting when such expulsion was alleged to have taken place were produced. Held, that a verdict in favor of the paintiffi was not against the weight of evidence.</p>

<p>Husband and wife — Liability of husband.</p> <p>In an action by a dressmaker for services and materials in making dresses for defendant’s wife the defense was that there was no liability for items after a certain date when defendant gave notice to plaintiff not to do any more dressmaking for his wife on his account. Plaintiff and her bookkeeper testified that defendant subsequently rescinded such notice and that such subsequent items- were furnished at his express request. This was denied by the defendant. Held, that a verdict in favor of the plaintiff would not be disturbed.</p>

<p>1. Appeal —When evidence not reviewable.</p> <p>Where the record does not-contain a statement that the case contains all the evidence and there is no appeal from an order denying a motion for a new trial, the General Term will not review the evidence.</p> <p>8. Same — Failure to move for dismissal or direction of verdict.</p> <p>A failure to move for a dismissal of the complaint or for the direction of a verdict is a concession that the case is properly one for the jury.</p> <p>3. Brokers — Evidence.</p> <p>In an action for broker’s commissions, testimony as to" the payment of commissions to another broker for the sale of the same property to another purchaser is immaterial and inadmissible.</p>

Motion by defendant for a new trial on exceptions ordered to be heard in the first instance at General Term; after direction of a verdict for plaintiff at the close of the evidence.

<p>Action to set aside a conveyance of real estate, made by the widow of Michael Beminger, his adopted daughter mentioned in his wil] being the plaintiff. The defendants contended that the will gave to the widow an absolute power of alienation for her own benefit, and thus devised to her an absolute fee, and that therefore the plaintiff has and had no interest upon which to maintain the action. The other facts appear in the opinion.</p>

<p>Action to enforce the liability of directors of a corporation for failure to file an annual report.</p>

Phis action was originally commenced against D. Powers & Sons, private bankers, to recover the sum of $3,695.53, deposited with them by Phebe Steenbergh, deceased.

<p>Motion by. defendants to vacate and set aside, a judgment in* favor of plaintiff as irregularly taken and entered.</p>

<p>1. Supplementary proceedings — Return of execution.</p> <p>So long as the return of an execution stands, it is a sufficient basis for supplementary proceedings.</p> <p>2. Execution — Return.</p> <p>The mere return of an execution in less than sixty days, even though .made at the suggestion or request of the plaintiff’s attorney, does not invalidate or vitiate such return. To accomplish that result there must be collusion between the plaintiff and the sheriff or. intentional omission to attempt to collect.</p>

<p>Actions to have legacies given to the .plaintiffs, by the will of their father, adjudged to be a first lien upon the real estate of which he died seized; and that such lien be enforced by' a sale of such real estate. The actions were, tried together.</p>

.An Attachment was issued in this case against property of the defendant Upon the ground that he had assigned, disposed of and secreted property with the intent to defraud his creditors. He now moves to vacate such attachment upon, the papers alone upon .which it was granted upon the ground that they do not contain sufficient evidence of such improper disposition of defendant’s property as to give jurisdiction to grant the warrant.

<p>Demurrer to complaint.</p>

The comptroller of the state of Hew York, in pursuance of the state tax sales of 1866 and 1871, conveyed by two deeds, one bearing date December 17, 1868, and the other February 2, 1874, the southeast -quarter of Lot 87, Township 8, Old Military Tract, Franklin county, to Albert Andrus. Albert Andrus thereafter died, and the interest thus acquired .by him is now claimed by the plaintiffs.

<p>Application to revoke a Equor tax certificate.</p>

Motion by. an order to show cause why an order should not be made “ vacating and setting aside the proceedings in replevin in this action and the affidavit, requisition and undertaking therein on the ground that said proceedings are void; that there is no sufficient affidavit or proof to confer jurisdiction, etc., and on the further ground that no chattels are described in said affidavit or schedule annexed with sufficient accuracy to enable the sheriff or any other person…

<p>Application for orders directing receiver of copartnership to permit sheriff to levy, denied.</p>

<p>Landlord and tenant — Negligence — Fire-escapes.</p> <p>There is no obligation on the part of a landlord to maintain a trapdoor in a balcony of a fire-escape, which is not connected with any common passageway, in a safe condition for use by the tenant ás a platform to facilitate the drying of clothes, and in' the absence of any. agreement in relation thereto, the tenant in using it assumes the risk of injury.</p>

<p>Motion to compel the purchaser at a foreclosure sale to complete his purchase.</p>

<p>Motion for a new trial on the justice’s minutes. The nature of the action and the material facts are stated in the opinion. '</p>

<p>1. Will — Trust — Perpetuities.</p> <p>A bequest in trust to establish a public library and free reading-room which specifies no time within which the trust is to be executed measured by any life in being, is void as in violation of the statute against perpetuities.</p> <p>2. Same — Power of appointment.</p> <p>Where property is left in trust to apply the income to the use of a beneficiary during her life, and upon her decease to the use of another for life, unless the first beneficiary should by her last will make a different disposition of the same, which she was given power to do, a general devise and bequest in the will of the first beneficiary of all her property to the second beneficiary is a valid exercise of the power of appointment and passed the title to the principal of the fund to the latter absolutely.</p> <p>3. Same — Investments — Change of.</p> <p>After making provision for a general trust and' several special trusts, the will provided as follows: “ The trustees of the said special trusts are .hereby authorized from time to time to change the investments hereby directed to be made for the use and benefit of specific persons; to sell the securities originally purchased for or set apart for such-specific persons and to purchase other securities in lieu thereof, except in the cases where the securities are herein designated and appropriated to a specific purpose.” Held, that where no direction was given, by the testator as to the manner of investment, such investment waste be made by the trustees in their discretion, and they would have a right to change the same from time to time; but in the cases where the securities forming the corpus of the fund were in terms specified and set apart by the testator himself they must remain unchanged' during the continuance of the trust.</p> <p>4. Same — Provisions for making good specific trusts.</p> <p>A will provided that if any special trust should fail in whole or in part by depreciation of securities in which the fund was invested, it should be made good out of the general estáte “ so long as the general trust to my executors and trustees shall continue.” Held, that the general trust having been declared void and the trust fund, which consisted of the residue of the estate, having vested in the next of kin, the foregoing provision for making the specific trusts good, fell with ,the general trust.</p> <p>5. Executors — Power of sale.</p> <p>Where trustees are directed to allow the beneficiary the use of a house during'her natural life, and upon her death to apply It to the use of. another beneficiary for the remainder of her natural life, and that upon the death of the latter the house “shall be paid over” to her issue,or if she have no issue, then to'be “paid over” as she may by will direct, the trustees have no power to sell the house during the continuance of the trust for the purpose of changing- the nature of the investment.</p> <p>6. Will — Trust.</p> <p>A will directed tne executors and trustees to acquire certain family property 'and apply the- same to the use of two of testator’s nephews for their lives, and gave to said nephews. a power of appointment. Held, that no active trust was created thereby; but that the nephews took -estates for life as tenants in common with cross-remainders for" life, contingent on the failure of the one first dying to exercise the power of appointment by will with respect to his undivided half, in which event the survivor may appoint the whole estáte by will.</p>

<p>1. Husband and wife — Residence.</p> <p>Unless for sufficient cause, ,a wife’s residence is with her. husband and she cannot acquire a foreign residence, without his consent, for the express purpose of procuring a divorce. ' ■</p> <p>2. Divorce — Foreign.</p> <p>A divorce obtained in a foreign state against a resident of this state, without service upon or appearance by the defendant, will not be recognized here.</p> <p>3. Marriage — Validity.</p> <p>Where a wife procures a foreign divorce, without service of process upon or appearance by her husband and immediately marries another man, with whom she returns to this state, such marriage, although valid in the state in which it was celebrated, will not be recognized by the courts of this state.</p> <p>4. Divorce — Custody of child.</p> <p>Where a wife has left home, procured an invalid foreign divorce and married another man with whom she is living, the court will not take the child from the custody of the husband, who is innocent of all wrong and faithfully performs his duty to it, and. give it to her.</p>

<p>Taxes — Assessment oí personal property — Attempted transfer to ., i avoid. ’</p> <p>An assessment upon personal property tor the purpose of taxation, cannot be avoided by the'execution-of a trust deed purporting-to transfer the securities'for the benefit.of the grántor, where a power of instantaneous revocation is reserved and there is no transfer of possession- of. such securities. - ’</p>

<p>Constitutional law — Sheriffs — Laws 1896, chapter 32.</p> <p>• Chapter 22, Laws of 1896, establishing a police justice and police officer in the town of Fort Edward, and providing that peace officers of the county or town should not be required to serve any summons, warrant, etc., or any justice of the peace of said town be compelled to issue any such process, and that the county or town should not be chargeable with, nór in any way liable to pay any officer for-the service of any summons, warrant, etc., ór for the issuing thereof, is unconstitutional so far as it undertakes to deprive an officer who was in office at the time of its passage of compensation for his services in the issuance or service of such papers, as the law does not prohibit the rendition thereof.</p>

<p>Corporations — Incorporation — Approval of certificate.</p> <p>A certificate of incorporation of a membership corporation which appoints the annual meetings to be held “ on each and every second Sunday of January of each and every year ” will not be approved, because the holding of corporate meetings for the transaction of secular business on Sunday is contrary to the public policy of the state.</p>

<p>Corporations — Liability of directors for failure to file annual report.</p> <p>The liability of trustees of a corporation under section 30 of the Stock Corporation Law, for failure to file an annual report is secondary, and can be resorted to only after judgment has been recovered against the corporation and the usual remedies exhausted.</p>

<p>Motion for leave to appeal to the Appellate Division or for re-' argument.</p>

<p>Motion by plaintiff for reargument or for leave to appeal to the Appellate Division.</p>

<p>Motion for leave to appeal to .the Appellate Division.</p>

<p>Motion by defendants for reargument.</p>

<p>Appeal from a judgment rendered by the justice of the Hinth Judicial District Court in favor of the plaintiff.</p> <p>Action for work, labor and services, and materials furnished.</p>

Appeal by the plaintiff from a judgment of the justice of the Sixth- District. Court in favor of the defendant, in an action to recover the value of a diamond ring, a diamond pin and a lorgnette intrusted to the defendant as comm on carrier.

<p>. Appeal from an order.</p>

<p>Appeal from a judgment in-favor, of plaintiff.</p>

<p>Appeal from a judgment and order entered in favor of defendants.</p>

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

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

<p>Appeal'from a judgment entered after a trial before a judge on his findings made therein.</p>

Appeal by defendant from a judgment on verdict in favor of plaintiff, and from order denying motion on the minutes for a new trial.

Appeal By defendant from judgment' on verdict .of jury rendered in plaintiff’s favor, and from order denying his motion for new trial made on the minutes.

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

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

•Appeal from a judgment entered in favor of plaintiff on the . verdict of a jury, and from order denying motion for a new trial.

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

<p>Appear by plaintiff from judgment on verdict for defendants, and order denying motion for new trial.</p>

<p>Appeal from a judgment in favor of plaintiff entered on the verdict of a jury, and from an ord°T denying a motion for a new trial. • '</p>

<p>Appeal from an order denying a motion for leave to amend an answer.</p>

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

<p>Appeal from an order.</p>

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

<p>Appeal from a judgment in favor of defendant.</p>

<p>Appeal from an order vacating the service of the summons and all proceedings thereafter had herein.</p>