Volume 181 — New York Reports

The action was brought to foreclose a mechanic’s lien, filed for work done and materials furnished under a contract between the plaintiff and the defendants. The complaint set up the contract, which called for a payment of $6,600 ; alleged its full performance and claimed to recover, in addition to the contract price, for extra work done of the alleged Aralue of $1,100.

The nature of the action and the facts, so far as material, are stated in the opinion. The exceptions taken by defendant to the admission of evidence require a reversal of the judgment. ( Van Wycklen v. City of Brooklyn, 118 N. Y. 424; Thompson v. M. R. Co., 11 App. Div. 182; Wilson v. N. C. R. Co., 56 App. Div. 570; Church v. Howard, 79 N. Y. 415; Grotsch v. R. R. Co., 19 App. Div. 135; Culbertson v. R. R. Co., .36 S. W. Rep. 834 ; Tracy v. M. S. Ry. Co., 49 App.

Appeal, by permission, from an order of the Appellate' Division of the Supreme Court in the first judicial department, entered January 9, 1905, requiring the board of railroad commissioners to issue to the New York City Inter-borough Railway Company a certificate of public convenience and necessity for the construction of certain lines of street railways proposed by that company. The facts, so far as material, and the questions certified are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 13, 1904, which affirmed an order of Special Term striking out certain allegations of the complaint. The facts, so far as material, and the question certified are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1904, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 2, 1903, which affirmed a judgment, entered upon a decision of the court at a Trial Term without a jury, determining the interests of the parties herein to certain lands and to certain limestone beds located thereon.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>John La Barge did not reserve the limestone or granite bed on the twenty and four one-hundredths acres of land, in his deed to Margaret Lewis, in February, 1852. (Harris v. Oakley, 130 N. Y. 1; Blackman v. Striker, 142 N. Y. 455 ; Thayer v. Finton, 108 N. Y. 394; Grafton v. Moir, 130 N. Y. 465 ; Armstrong v. Granite Co., 147 N. Y. 495 ; Dunham v. Kirkpatrick, 101 Penn. St. 43; Listowell v. Gibbmgs, 9 Ir. C. L. 223; Provost v. Fairie, L. E. [13 App. Cas.] 675; Brown v. Chadwick, 7 Ir. C. L. 101; Darwill v. Roper, 3 Drury, 294.) Mines, according to the ordinary definition of the term, as well also as the legal application, signify a way or passage under ground, a subterranean duct, course or passage, whether in search of metals, or to destroy fortifications, and the word minerals, being derived from mine, signifies that which is obtained from underground workings, and not that which is dug from quarries, which are wrought from the surface. (Stevens v. Gill, 1 Mining Rep. 576; Stevens v. Williams, 1 Mining Rep. 557; I. S. M. Co. v. Cheeseman, 2 McCrary, 191; N. P. Ry. Co. v. Soderberg, 188 U. S. 525.)</p> <p>In the case at bar, “ minerals ” are in the exception clause of the deed, and hence did not pass to the grantee. And as limestone and granite are minerals they did not pass, unless the wording of the grant can be impeached by a supposed intent of the parties. (Harris v. Oakley, 130 N. Y. 1; Armstrong v. Granite Co., 147 N. Y. 495 ; Hext v. Gill, 3 Eng. Rep. 574.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s lien as filed was valid and sufficiently stated the nature of the work and the nature of the materials furnished. (Reeves v. Seitz, 47, App. Div. 267; Vogel v. Luitweiler, 52 Hun, 184; Mahley v. German Bank of Buffalo, 52 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff had no property in the trees in question.

The facts, so far as material, are stated in the opinion. The prosecution have failed to show premeditation and deliberation. (Penal Code, § 183; Peoples. Majone, 91 N. Y. 211; People v. Boggiano, 179 N. Y. 267; Leighton v. People, 88 N. Y. 117; People v. Conroy, 97.

<p>1. Appeal—Right of.</p> <p>There is no inherent right of appeal. Appeals in criminal matters are governed by §§ 515 to 533, Code Grim. Proc., and unless they authorize an appeal the Court of Appeals has no jurisdiction.</p> <p>'2. Appeai.abii.ity of Obdeb.</p> <p>The Court of Appeals has no power to review an order of the Appellate Division affirming an order of a County Court denying a motion made by a board of supervisors to have the County Court set aside a presentment of a grand jury censuring them for their alleged neglect in keeping proper records of the minutes of their proceedings; since the motion was not made in an action, either civil or criminal, and is not a motion in a civil or criminal proceeding authorized by any statute, but is, in effect, an application to the County Court that it should exercise its control over its records by striking therefrom a paper alleged to be scandalous; and there being no inherent right of appeal and none allowed by statute from the order of the Appellate Division, the appeal therefrom must be dismissed.</p> <p>Matter of Jones, 101 App. Div. 55; s. c. ante, p. 59, appeal dismissed.</p>

<p>Appeal—Order of Appellate Division Affirming Order of a County Court Denying a Motion to Strike from Its Minutes a Presentment of a 0-rand Jury Censuring Public Officers — Not Reviewable in the Court of Appeals, The Court of Appeals has no power to review an order of the Appellate Division affirming an order of a County Court denying a motion made by a board of supervisors to have the County Court set aside a presentment of a grand jury censuring them for their alleged neglect in keeping proper records of the minutes of their proceedings; since the motion was not made in an action, either civil or criminal, and is not a motion in a civil or criminal proceeding authorized by any statute, but is, in effect, an application to the County Court that it should exercise its control over its records by striking therefrom a paper alleged to be scanda'ous; and there being no inherent right of appeal and none allowed by statute from the order of the Appellate Division, the appeal therefrom must be dismissed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. A verdict was properly directed against the plaintiff.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 15, 1904, which affirmed a judgment of the Westchester County Court, rendered upon a verdict convicting the defendant of the crime of poolselling.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The defendant operates a steam surface railroad, partly in the borough of Brooklyn, city of New York, and the plaintiff is the owner of a lot located on the south side of Atlantic avenue in that borough, on which she has built a two-story frame house, the lower part of which is occupied as a store.

The nature of the action and the facts, so far as material, are stated in the opinion. The rule contended for by the defendant will be given all of the efficacy and force which it is intended to have if it shall be held to apply, as between the plaintiffs and the defendant, to the building so far as it was occupied and controlled-by the plaintiffs, which was the extent to which the insurance of the defendant applied.

<p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 4, 1904, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p>

Appeal, by permission, from orders of the Appellate Division of the Supreme Court in the first judicial department, entered December 1, 1904, which reversed orders made at a Trial Term in each of the above-entitled actions, granting motions for a preference.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1903, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion, for a new trial and granted ,a new trial.</p>

Appeal, by permission, from a judgment entered January 24, 1905, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which affirmed a judgment of the Municipal Court of the city of New York sustaining a demurrer to the complaint.

<p>Appeal from an order of 'the Appellate Division of the Supreme Court in the fourth judicial department, entered March 8, 1905, which affirmed an order of Special Term dismissing the petition of the grade crossing commissioners for the appointment of commissioners to ascertain the compensation to be paid to the owners of and parties interested in lands claimed to be in jured by a certain viaduct in the Abbott road and Elk street in the city of Buffalo.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 14, 1905, which reversed an order of Special Term directing a new taxation of costs in an action to foreclose a mechanic’s lien. The following question was certified : “ Is the plaintiff enti- ' tied to costs in this action accruing after the offer of judgment ? ”

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1905, which affirmed an order of Special Term denying a motion to vacate and set aside a judgment entered upon a forfeited recognizance.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 16, 1903, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a •Trial Term.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered-March 14, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.</p>