Volume 19 — New York Appellate Division Reports

Appeal Tby the plaintiff, Margaretha Eckhardt,- from a judgment ' of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 15th'day of January, 1891, Upon the decision-of the court rendered after a trial at the Erie Special Term dismissing her complaint upon the -merits. This action was brought to set aside an assessment-for $303.15 upon plaintiff’s land, situate in the city of Buffalo.

Appeal by tbe defendant, The Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 17th day of April, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes. The jury rendered a verdict in favor of the plaintiff for $377.10.

Appeal by the plaintiff, Masourie Dodge, from a judgment of the Supreme Court in favor of the defendants, Frederick L. Manning,, and Levi Acker, as executors, etc., of Sophia N. Kennai’d,. deceased, entered in the office of the clerk of the county of Seneca on the 18th day of March, 1896, upon the decision of the court rendered after a trial at the Seneca Special Term.

Appeal by the defendants,. Adolph Ladenburg and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 19th day .of September, 1896, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal hy the defendants, The City of Syracuse and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 2d day of June, 1896, upon the decision,of the court rendered after a trial at the Onondaga Special Term.

Appeal by the relator, Holmes W. Burlingame, from a judgment .of the Supreme Court in favor of the defendants, entered in the office of .the clerk of the county of Wyoming on the 4th day of March, 1897; upon the decision of the court rendered after a trial at the Wyoming Trial Term before the court without a jury.

Appeal by the- plaintiff, Patrick Ward, by his .guardian ad litem,' William Ward, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county óf New York on the 22d day of January,1897, upon the dismissal of ■ his complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Christopher Wendler, from a judgment of the Supreme Court in favor of the defendant,. entered in the ■office of the clerk of the county of Hew York on the 30th day of December, 1896, upon the dismissal of liis complaint, by direction of the court, after a trial at the Hew York Trial Term.

Motion by the plaintiff, Josephine Fitzhenry, an infant, by Mary Fitzhenry, her guardian ad litem, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of her complaint by direction of the court after a trial at the New York Trial Term on the 14th day of December, 1896.

Appeal by the defendants, John Best-and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of March, 1897, denying their motion for a retaxation of costs and affirming the decision of the .clerk of the court in refusing to tax a bill of costs presented by the defendants.

Appeal by the defendants, George Elliott and another, as executors, etc., of John Elliott, deceased, and others, from, an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of May, 1897, denying a motion for an order requiring the plaintiff to pay to such defendants, or tlieir attorneys, a certain sum of money. . ■

<p>Appeal by the plaintiff, George O. Sheldon, from a judgment of the Supreme Court, entered in the office of the clerk of the county -of New York on the 11th day of January, 1897, upon the verdict of a jury rendered by direction of the court in favor of the plaintiff for twenty-five dollars, and also from an order entered in said -clerk’s office on the 29th day of January, 1897, denying the plaintiff’s motion for á new trial made upon the minutes.</p>

Appeal by the defendants, Edward P. Barker and others, commissioners Of taxes and assessments of the -city of New York, from an order of the Supreme Court, made at the-New York Special Term and entered in the office of the clerk' of the county of New York on the- 13th day of June, 1896, vacating an assessment tain bank stock held by the relator. on cer-

Appeal by the plaintiff, Janet Simpson, as administratrix, etc., of Thomas Simpson, deceased, from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the. clerk of the county of New York on the 8th day of March, 1897, upon the dismissal of her’ complaint by direction of the court after a trial at the. New York Trial Term.

. Appeal by the plaintiffs, Louis M. Levy and others, from a judgment of the Supreme Court in favor of the defendants, entered' in the office of the clerk of the county of Yew York on the 20th day of January, 1897, upon the decision of the court rendered after a trial at the Yew York Speeial Term, directing the dismissal of the plaintiffs’ complaint,

Appeal by the plaintiff, Abram E. Hunt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New. York on the 3d day of March,1 1897, upon the decision of the court rendered after a trial at the New York Special Term. •

Appeal by the defendants, Samuel W. Milbank, as receiver of the Mutual Benefit Life Association of America, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 19th day of November,, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Will — when, a devisee, subject to a power of sale, may elect not to home it exercised — a renewal lease taken by one tenant inures to the benefit of his cotenant — conveyance of property procured by false representations, set aside —what not sufficient to require a surrogate’s decree to be set aside.</p> <p>A testator devised a hotel and its furnishings to his wife and son equally, and gave to his executors, of whom the son was one, power to sell the property at once, or to rent it, as they should deem most beneficial to the devisees, directing that, when the property was sold — which must be within five years after his decease—the proceeds should be invested in United States bonds and be divided between the two devisees, “to be theirs absolutely.”</p> <p>Shortly after his death, the property, with the consent of the wife and son, was. in form sold by the executors to the wife and a grandson of. the testator, the-latter of whom immediately conveyed his interest'therein to the testator’s son.</p> <p>The hotel was conducted by the devisees jointly for several years, during which time a lease, which had been made to the testator of two lots upon which part, of it stood, was renewed by the son, in his individual name, and a dwelling house used in connection with the hotel, and devised by the testator to his wife, was, without consideration, conveyed by her to the son, upon false representations that the personal estate of the testator was insufficient for the payment of two annuities provided for in his will, and that the son would, upon receiving a deed of the property, undertake the payment of such annuities, and relinquish his claim upon the estate for money alleged to have been loaned by him to the testator, and for unpaid services alleged to have been rendered by him to the testator.</p> <p>During a serious illness of the mother, occurring when she was eighty-four years, of age, a deed, conveying her share of the hotel property to the son, was presented to her, which she, being illiterate, executed by making her mark, but without saying anything, although she nodded her head in response to questions of the notary, who took her acknowledgment, as to whether she was satisfied and whether she understood. It was not shown that she directed the-preparation of the deed, or. at whose instance it was prepared; but upon her recovery the son made no claim to the title to the property conveyed thereby, nor any effort to have the gift completed by a conveyance of the hotel furnishings, nor did the mother mention the execution of the deed, although she was-several times heard to declare that she intended to give the property to her son.</p> <p>In her last illness, which followed a few months later, she executed, for a nominal consideration, a bill of sale of all the personal property contained in the hotel, but there was no proof of the circumstances attending such execution, or that she was aware of the contents of the bill, or consulted any one about it.</p> <p>On her death bed she was also served with a citation issued upon an accounting - of the executors of her husband, which, although the personal estate, of the testator was therein charged with the annuities and with commissions for the price of the United States bonds, which were never purchased, she approved, | and upon which she consented to the entry of a decree by the surrogate.</p> <p>In an action brought by one of the heirs at law and next of kin of the wife to set aside the several conveyances mentioned above, to procure a judgment that the lease taken by the son should be held in trust for the son’s cotenant of Í the hotel property, and to set aside the accounts of the executors,</p> <p>Held, that the power of sale given by the testator to his executors was not imperative, and that the devisees might elect.to take the property free and dis- • charged from the power of sale, and that the sale of the hotel property, made with their joint consent, was valid;</p> <p>That the son; as a joint tenant of- the premises with his mother, must be considered to have held the renewal lease as trustee for her benefit as his cotenant; i That the conveyance of the dwelling house and the hotel and furnishings should : be set aside;' •"</p> <p>That, it not appearing by satisfactory evidence that the Surrogate’s Court had not competent jurisdiction of the matter, the decreé of that court upon the , accounting of the executors should be sustained.</p>

Appeal by the defendants, Henry A. Siebrecht and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the.clerk of the county of Hew York on the 1st day of March, 1897, upon the report of a referee.

Appeal by the plaintiff, Julia A. Dayton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the-'county of New York on the 25th- day of August, 1896, upon the report of a referee.

Appeal by the plaintiff, Xaver Bucher, an mfánt, by Frank F. Ogston, his guardian' ad litem, from a.judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk ■of the. county of Hew York cm the 23d day of January, 1897, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, The Woodbridge Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 5th day of March, 1897/upon the dismissal of its complaint by direction of the court after a trial, at the Hew York Special Term..

Appeal by the defendant, the Steinway Railway Company of Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th day of January, 1897, upon the verdict of á jury, and also from an order entered in said clerk’s office nunc pro tuno as of the 26th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p> An involuntary movement of a workman, who is under the bed of a cable road, caused by the cable striking his head, is not contributory negligence. </p> <p>In an action to recover for injuries sustained by the plaintiff, an employee of the defendant, while in a trench under the tracks of a cable railroad, through which the cable ran, a request to the court to charge the jury, in effect, that it was the duty of ¡the plaintiff absolutely to remain 'quiet, and that if in consequence of his not doing-so he was injured, that was sufficient to exonerate the defendant from liability, is too broad,, in view of the fact that the movement of the plaintiff was not voluntary, as it was- caused by the cable striking his head.</p>

<p>. Motion by the plaintiffs, Matilda E. Starbuck and another, as executors, etc., of William H. Starbuck, deceased, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of their com■plaint by. direction of the court, after a trial at the New York Triail Term.</p> <p>. Upon a former trial of this action the plaintiffs recovered a verdict against the defendant .'for the amount claimed. From the judgment entered upon such verdict the defendant appealed to this court,</p> <p>. where the judgment was reversed and a new trial granted. (10 App. Div; 198.) On the new trial, at the close of the plaintiffs’ evidence, the complaint was dismissed, and it is upon the exceptions taken to such dismissal that this motion is based.</p> <p>The action was brought to recover a claim for an adjusted loss -covered by a marine insurance policy upon the steamship Queen of the Pacific issued by the defendant. It was a time and valued policy in the usual form, and expressly covered barratry of the master and mariners of the vessel. No question was raised but that the plaintiffs,if entitled to recover at all, were entitled to the amount' sued for. Upon the pleadings at each trial two issues were presented: First, was the vessel seaworthy at the commencement of the risk and at the inception of the voyage on which- the loss occurred? and, second, was the loss occasioned by force of the winds and waters within the perils insured against ? Upon the latter issue the allegation of the complaint is, “ said steamship and her said cargo became and were by the force of the winds and the waters and the perils of the seas stranded, wrecked and partially lost and. sustained and suffered losses and damages" * * ' * within the perils insured against.”</p>

<p>Action to recover installments of a subscription to the stock of a foreign corporation and interest thereon as fixed by statute — it embraces but one contractual cause of action.</p> <p>A complaint in an action brought to recover unpaid installments, upon a subscription to capital stock, which alleges that the plaintiff is a West Virginia corporation of which the defendant is a stockholder, and that the statute of West Virginia provides that “ If any stockholder fail to pay any installment upon his shares when required by the board, the corporation may recover from him the principal sum due with interest thereon at the rate of ten per cent per annum," followed by allegations showing that the defendant comes within this liability, and asking judgment for the unpaid principal and interest .thereon at ten per cent, is not demurrable upon the ground that a cause of action to recover upon a contract obligation has been improperly joined with- one to recover a penalty imposed by a foreign statute, as to which latter cause of action the court has no jurisdiction; such a complaint must be deemed to set forth a single contract obligation to pay installments as called' for, together with ten per cent interest, in the event of a failure to do so.</p>

<p>Appeal by the plaintiff, Thomas Ray, an infant, by Thomas Ray, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric' of the county of New York on the 7th day of January, 1897, upon the dismissal of ■ his complaint by direction of the court, after a trial at the New York Trial Term.</p> <p>The action is for damages for personal injuries sustained by the plaintiff. The defendants were owners of thoroughbred horses which were in training under the charge of one Albert Cooper. The plaintiff, who had been in the service of various trainers of racing horses, including Cooper, before the latter had been employed by the defendants, returned to Cooper’s service as a stable boy in the spring of 1891, after Cooper had been employed by the defendants to train their horses. The complaint, in substance, alleges that the defendants while engaged in training horses for racing and in racing horses on race tracks had employed the infant plaintiff, then fifteen years of age, as a stable boy, jockey and rider of horses and had entire control of him; that while in their employ and while riding a racing horse he was severely injured, and that such employment was prohibited by statute, and demands judgment for the damages sustained as the result, of such injuries. By their answer the defendants “ admit and allege that at said times they employed a proper person as trainer, to whose charge the management of such horses as these defendants desired to have trained for racing was confided, who, in the course of his employment, selected and .employed jockeys and stable boys to ride said horses; that, as these defendants are informed and believe, the said plaintiff was one of the stable boys so employed.” • Upon the trial the plaintiff testified : “ I was working in Morris Park. I was employed by Albert Cooper. He was employed by Foxhall Keene and James R. Keene. I was hired to exercise horses. * * * p rode two horses every morning, They were race horses. I rode for exercise on Morris Park track. * * * Mr. Cooper was trainer for Foxhall Keene and James R. Keene. * * j lived myself up over the stable at Morris Park track'. There were nine or ten other boys there; we all lived together and. ate our meals there, and all slept there. I worked under Cooper’s orders. We were allowed to go home once a month. When I. say I exercised horses I mean I used to take them out on the track and trot them around; gallop them around and work them every other morning. I mean by working a horse to let them go as fast as they can 1 rode on the horse’s back; I rode a horse in a race; it was called Constantinople filly. It was Foxhall Keene’s. * * * I fell off a horse, before I was hurt,' five or six times; I was not bruised or hurt in any way.” He further testified that he had seen boys who were riding horses and exercising them fall off those horses thrown off. “These boys who fell off were in the employ of the Keene stables, riding the Keene horses, not the same horses that I.rode.” In addition, he testified substantially that on the morning of August 22, 1891, a man by the name of Crosson,, who lived in the neighborhood of Morris Park, drove over there in a cart. The horse he drove Was not the defendants, or one ih which théy had any interest in whatever. The plaintiff testifies that he was through with his work for the morning, and about to leave with his companions for a swim, when he was requested by Cooper to ride Crosson’s horse; that after some objection he mounted and rode out on the track, first on a trot and then on a gallop, and then he speeded the horse over a part of the track'; that he said to Cooper he did not want to ride the horse at all, that he was'afraid of him; that after trotting the horse around he again stated that he did not want to ride the horse, but that Cooper threatened to knock him off if he did not do so; that he galloped the horse around the track, returning again to Cooper, who told him then to gallop him around to the quarter pole and then work him as fast as he could ; that he followed Cooper’s instructions, and while coming down the stretch, going very fast, the horse ran against the fence, threw him off and kicked him in the head. On cross-examination the plaintiff testified that he had previously seen the horse he rode when hurt; that it belonged to Hr. Orosson, who used to ride him to the track; that he had seen the horse there and also at West Farms; and on redirect lie testified that he saw the horse at West Farms when Cooper took him there. After testimony by a doctor as to the extent of the plaintiff’s injuries, and upon plaintiff’s resting, the complaint was dismissed, and from the judgment entered upon such dismissal this appeal is taken.</p> <p>The defendants’ liability is placed upon the ground that they violated the statute embodied in section 292 of the Penal Code, which prohibits the employment of any child under the age of sixteen years for the purpose of exhibition, and provides that one who “ trains or in any way procures or consents to the employment or to such training, or use or exhibition of such child, or who neglects or refuses to restrain such child from such training, or from engaging or acting, either (1) as a rope or wire walker, gymnast, wrestler, contortionist, rider or acrobat, or upon any bicycle or similar mechanical vehicle or contrivance. * * * (5) In any practice or exhibition or place dangerous or injurious to the life, limb, health or morals of the child, is guilty of a misdemeanor.”</p>

Certiorari issued out of the Supreme Court.and attested the 16th day of January, 1897, directed to Theodore Roosevelt and others, commissioners composing the board of police of the police department of the city of Hew York, commanding them to certify and return to the clerk of the county of Hew York all and singular their proceedings in relation to the dismissal of the relator from the -office of policeman in the police department of the city of Hew T ork.

<p>Statute of Frauds—promise to guarantee payment of another’s check, — it need not be in writing if supported by a new consideration — a separate defense must be complete in itself.</p> <p>A complaint in an action which, in substance, alleges that the defendants, being the owners of a check made by a person named Franks, sold it to the plaintiff for a sum of money paid by the plaintiff to the defendants, and that, as a part of the agreement of sale, the defendants promised the plaintiff that the check should be paid and that, if it were not paid, they would pay it, does not aver a promise to answer for the debt or default of Franks. Such a contract need not, under the Statute of Frauds, be in writing, as it is an independent contract made upon a new and independent consideration whereby the defendants became obligated to' pay a sum of money upon the failure of the bank upon which the check was drawn to pay it on demand.</p> <p>It is a rule of pleading that each defense separately stated as a separate defense must.be in itself complete, and .must contain all that is necessary to answer the whole cause of action, or to answer that part of it which it purports to answer.</p>

Appeal by the plaintiff, Eli M. Cohen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of March, 1897, denying his motion to set aside the verdict of a sheriff’s jury rendered in proceedings to determine the validity of a claim made to- personal property held by the sheriff under an execution issued against the defendant.

<p>Appeal by the plaintiff, Sydney H. Carney, Sr., from a judgment of the Supreme Court in favor of the defendant, entered in the', office of the clerk of the county of New York on the 13th day. of February, 189Y, upon the dismissal of his complaint by direction, of the court after a trial:'at the New York Trial Term. ‘</p>

Appeal by the plaintiff, Thomas H. Unekles, from a final judgment of the Supreme Court in favor of the defendant Henry Hentz, entered in the office of the clerk of the county of Hew York on the 24th day of February, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term sustaining said defendant’s demurrer to the complaint, and also from an order of the Supreme Court made at the Hew York Special Term and entered in the office of the clerk of…

<p>Appeal by the defendants, Owen B. McManus- and another, from judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of New York on the 27th day of October, .1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of November, 1896, denying said defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Thomas H. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of January, 1895,; upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

<p>Appeal by the defendants, The Manhattan Railway Company and The New York Elevated Railroad Company, from a judgment of the Supreme Court- in favor of the plaintiff and the defendant Louis Engelhardt, entered in the office of the clerk of the county of New York on the 17th day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendant, Levi C. Weir, as president of The Adams Express Company, by permission, from a judgment of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in'the office of the clerk of the county of New York on the 3d day of March, 1897, up'on the decision of the court,, rendered upon appeal, affirming a judgment of the District Court of the city of New York.

Appeal by the plaintiff, Henry Merzbach, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 21st day of April, 1896, upon the verdict of a jury,land also from an order entered in said clerk’s office on the 16th day of April, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by Jane Oakes and others, executors, etc., of Winifred Austin, deceased, from a decree of the Surrogate’s Court of the county of 2STew York, bearing date the 15th day of June, 1896, and entered in the office of said Surrogate’s Court, settling their accounts as executors of Winifred Austin, deceased.

Appeal by the plaintiff, Ellen Sullivan, .as administratrix, etc., of - Daniel C. Sullivan,.-deceased, from a judgment of the Supreme. Court in. favor of the defendant, entered in the office of the clerk . of the county of New York on the 25tll day of May, 18:96, upon , the dismissal of her complaint by direction of the court after-a trial ' at. the New York Trial-Term.

- Appeal by the defendant, Frederick S. Fischer,.from a judgment of the Supreme Court in favor of the pláintiff, entered in .the office of the clerk of the county of Hew York on .the 16th day of -Janm ary, 189% upon the verdict of a jury, and also from- an order bearing date,the loth day of January,.. 189% and entered.-in said.clerk’s office, denying, the.'defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, George S. Edgell and others, from an order of the Supreme Court, made at the HeW York Special Term and entered in-the office of the clerk of the county of Hew York on the 10th day of March, 1897, denying their motion for an in junetion pendente lite restraining the defendant from maintaining ari action against George S. Edgell in the State of Mississippi. ..•■■

Appeal by the defendant John Stewart from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25tli day of January, 1897, upon the decision, of the court rendered after a trial' at the New York Special ■ Term.

Appeal by the .defendants) William T. Washburn and Emma' J. Richardson, as executors, etc., of . Benjamin Richardson, deceased, and others, from an order of the Supreme Court, made at the New • York Special Term and entered' in the office of the clerk of the county of New York on the Ilth day of August, 1896, confirming the report of a referee appointed in surplus proceedings in foreclosure.: . ■

Appeal by the plaintiff, John R. Murray, from an interlocntory judgment of the Supreme Court in favor of the defendants, Elihu B. Estes and Charles H. Griffiths, entered in the office of the clerk of the county of Yew York on the 3d day of February, 1897, upon the decision of the court rendered after a trial at the Yew York Special Term, sustaining said defendants’ demurrer to the complaint.

<p> Collateral inheriicmee tern—when personal property of a non-resident decedent within this State at the time of his death, hut subsequently removed, is not taxable. </p> <p>The Surrogate’s Court of the county of New York has, under chapter 713 of the Laws of 1887, amending the Collateral Inheritance Tax Law, no jurisdiction to impose a tax upon the bank stock and deposits in banks, in New York "city, belonging to the estate of a non-resident decedent, which the executors of his estate have removed from the State of New York in 1887 after the passage of the above act, and have distributed; nor is such jurisdiction conferred by the provisions of the General Tax: Law (Chap. 908 of the Laws of 1896); as the latter act only gave the Surrogate’s Court jurisdiction over property of nonresident decedents within its territory, and in this cáse there was no such property at the time of such enactment or subsequent thereto.</p> <p>The collateral inheritance tax being a tax, not Upon property, but upon the right of succession which exists merely by .the favor of" the State, it follows that, as to personal property within the State of New York belonging to nonresident decedents, the succession' thereto under the laws of a foreign State cannot be taxed by the State of New York, which in such case can only impose a tax based on its dominion over the property situated within its territory. ' .</p>

Appeal, by Pincus Lowenfeld, purchaser at the sale in the above-entitled action, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of' the county of Yew York on the 11th day of January, 1897, compolling him to complete his purchase.

Appeal by the' defendant, George W. Turner, as receiver, etc., of the New York Recorder Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1897, directing him to pay over certain moneys to the plaintiffs.

Appeal-by the plaintiff, William A. Brady, from an order of the Supreme Court, made at the New York Trial Term and entered in the office -of’ the clerk of the. county of New York on the 5 th day of April, 1897, denying his motion to restore the. cause to thé prer ferred calendar for trial.

<p>AttacKment — an unmatured insurance policy is not “an instrument for thé payment of money f and the sheriff need not take it into Ms custody '.</p> <p>An 'ünmáturéd ¡ten-year endowment, po'licy'of life insurance, made payable to the insured, and ¡if -the-insured should die before the expiration of .ten years,- payable to his legal- representatives, under which premiums are still payable, and . having, under section 88 of the Insurance law (Chap. 690' of 1892) .a definite ■surrender value; may be levied upon by the sheriff under an-attachment issued against the property of the insured. ■ - . . .</p> <p>Such a policy is executory in its nature, being dependent for its continued exist- ' erice upon subsequent -payments .of the premium by .the insured; it is not an- ■ “instrument-for the payment of money,,” within the meaning of subdivision 2 of section 649 of the Code of. Civ.il Procedure, and consequently the sheriff is . not required -to take the policy into his actual custody.</p> <p>, Ingraham and Patterson, JJ., dissented.</p> <p>*See Trepagnier & Brothm. v. Ityse (18 App. Div. 898).</p>

Appeal by- the defendants, Hugh Lamb and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the. office of the clerk'' of the county of Hew York on the 5th day of, March, T897, denying their motion-to -strike the cause-' from the ¡general' calendar. , -

Appeal by the'plaintiff, Charles F. Holzmann, from a, judgment of the Supreme Court in favor, of the defendant, entered in the office of the clerk of the county of New York on the 29th day of January, 1897, upon a nonsuit granted by the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 29-th day of January, 1897, denying the plaintiff’s motion that the case go to the-jury on the evidence offered at the trial.

Appeal by the defendants, The Metropolitan Elevated Eailway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, Euth E. Hutton, entered in the office of the clerk of the county of New York on the 21st day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review an order entered in said clerk’s office on. the 2d day of January, 1895, substituting…

Appeal by the claimant, Anna E. Elmore, a judgment creditor of the defendant, the National Mutual Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1897, denying her motion to set aside the report of a referee appointed to take proof concerning her claim, and for an order directing Charles H. Daniels, as receiver of the defendant, the National…

<p>Certiorari issued out of the Supreme Court and attested the 21st day of April, 1897, directed to Theodore Roosevelt and others, as police commissioners, composing the board of police of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings relating to the dismissal of the relator from the police department of the city of New York.</p>

Appeal, by -the defendants, Otto M, Eidlitz and another, from judgment of the Supreme-Court in favor of the. plaintiffs, entered in the office of the clerk of the county of Hew York on the 15tli. day of February,. 1897, upon the verdict of a jury, and also from' an order entered, in said clerk’s office on the 23d day of February, 189.7, .denying the defendants’ motion for a new trial made upon minutes. '.

Appeal by the plaintiff, Mary G. James, from an order of the Supreme Court, made at the Hew York Special Term, dated the 8th day of February, 1897, confirming the report of a referee appointed to assess the damages suffered by the defendants James T. Horn, Isabella M. Dewey and George H. Winter, because of the granting of a preliminary injunction.

Appeal by the defendant, Robert J. Gray, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of thé clerk of the county of New York on. the 29th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of January, 1897, denying the defendant’s, motion for a new trial made upon the minutes. The facts are stated in the dissenting opinion of Yan Brunt, P. J..

Appeal by the contestant, Alice Preble Tucker de Haas, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 12th day of April, 1897, upon the verdict of a jury admitting to probate as the last will and testament of Maurits F. H. de Haas, an instrument bearing date June 20, 1883.

Appeal by the defendant, The Autographic Register Company of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 10th day of February, 1896, upon the verdict of a jury, and also from an order bearing date the 10th day of February, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Arthur 0. Humbert, individually and as administrator, etc., of Florence A. Humbert, deceased, from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Hew York on the 25th day of January, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

<p>Negligence — a boy injured while endeavoring gratuitously to free the stern line of a vessel leaving a pier — inviting one into a dangerous place.</p> <p>The mate of a brig lying at a pier, which had been loosed from all her moorings except the stern line, and to which a tugboat had just been fastened, as the vessel began to move called to some boys who were playing upon the pier to cast off the stern line, and while they were complying with the request, and one of their number, a boy of eleven years of age, who was unfamiliar with the movements of vessels, had his back to the vessel and was reaching up in order to lift the hawser over the top of the spile, which was higher than his head, a heavy anchor, which was suspended from her port cathead by three or four feet of chain, dragged along the side of the pier and its stock struck the spile and crushed the boy’s extended arm, rendering its amputation necessary.</p> <p>In an action brought against the owner of the vessel to recover for such injury, Held, that the question whether a ■ dangerous situation had not been created by the management of the brig, into which the plaintiff had been invited without notice or knowledge thereof, should have been submitted to the jury;</p> <p>That the owner was liable for the acts of those in charge of the brig and, if the plaintiff was induced by them to enter into a dangerous situation, for the injury resulting therefrom;</p> <p>That the mere gratuitous rendering of such a service by the plaintiff did not create, as between him and those on the brig, the relation of fellow-servants.</p>

Appeal by the defendants, Michael Durante and another, from a judgment of the Court of General Sessions of the' Peace in and for the city of New York, rendered on the 1st day of April, 189?, convicting the defendants of a misdemeanor.

<p>Failure-to pay alimony not excused by poverty — demand necessary-—when not excused by the absence of the husband from the State.</p> <p>A husband cannot excuse his failure to comply with the terms of a judgment, rendered in an action for divorce, requiring the payment of alimony, by setting up, in answer to a motion made to punish him for contempt, his present poverty or inability to pay.</p> <p>The procedure upon a motion to compel such payment is to be taken under sections 2266 and 2268 of the Code of Civil Procedure, and the judgment is to be enforced under section 1773 of the same Code, but a necessary prerequisite is service upon the husband of a certified copy of the judgment in question, and a demand that he pay the amount due; and where it appears that, just before the motion was made, the wife served the husband in the city of New York with a copy of the judgment, she will not be allowed to excuse her failure to demand of him the alimony upon the ground that her husband was continuously absent from the State of New York.</p>

Appeal by the defendant, Lombard, Ayres & Co., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of ISTew York on the 30 th day of December, 1896, upon the verdict of a jury, and also from an order- entered in said clerk’s office on the 31st day of December, 1896,. denying the defendant’s motion for a new trial made upon the- minutes.

Appeal by the plaintiff, Elsa 0. Forster,, from an order of the Supreme Court, made at the New York -Special Term and entered in the office of the clerk of the county of New York on the lOtli ¡ day of February, 1897, denying her motion to ■ continue the action; against the executor of the defendant..

<p>Negligence—woman hilled at a private railroad crossing—contributory negligence — the jury cannot disregard the testimony of a witness, although his interest may affect his credibility.</p> <p>Proof that a woman forty-three years of age, enjoying good health arid eyesight, walked, soon after, dusk, along a path leading over railroad tracks, when it was light enough for a person behind her to see her at a distance of twenty or thirty yards, her view of an approaching engine, having its headlight lighted but giving no signals, being practically unobstructed; that she appeared to stop a mopient and look up and down the track, then stepped upon it and was instantly struck by the engine and killed, is evidence that she did not exercise that care which the law requires of one who uses a private crossing.</p> <p>On the trial of an action brought to recover damages for personal injuries resulting from the alleged negligence of the defendant, it is erroneous for the court to charge the jury that they “have the right and may take the liberty of disregarding the witnesses of the defendant, if they consider them interested, even though they be not contradicted or impeached,” as the jury are never justified in disregarding the testimony of any witness, but, in determining the credibility to be given to a witness, have a right to consider his interest in the controversy or in' the decision of the question of fact submitted to the jury.</p>

Appeal by the plaintiff, the Seventy-third Street Building Com- ■ pany, from a judgment of the Supreme Court in favor of the defendant for costs, entered in the office of the clerk of the county of New York on the 28th day of November, 1896, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging that the plaintiff was only entitled to nominal damages for the breach of. a ¡covenant against incumbrances. • The incumbrance complained of…

<p>Appeal by the plaintiff, Simon Sterne, from an order of the Supreme Court, made at-the New York Special'Term and entered in the office of the clerk of tlie county of New York on the 30th day of March, 1897, vacating an order for the examination before trial of the defendant and its officers.</p>

<p>Appeal by the defendant, Octavio Sayer, Jr., from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 20th day of May, 1897, denying his motion to vacate a warrant of attachment. ■ '</p>

<p>Appeal by the plaintiff, Patrick Gorman, from a judgment of the Supreme Court in fayor of the defendants, entered in the office of the clerk of the county of New Pork on the 15tli day of March., 1891, upon the dismissal of his complaint by direction of the court after a trial at .the New Pork Trial Term. ■</p> <p>This action was brought to recover the damages which the plaintiff, a tenant of the defendants, sustained because of the loss of the services of his wife, who, while descending- a stairway in the demised premises, was injured because of the alleged negligence of the defendants.</p>

<p>Decedent’s estate — claim against it, by what proof sustained.</p> <p>Evidence tending to show that a husband who had received from an agent of his wife a balance of rents received from her real estate amounting to §4,530.18, thereafter gave to her a check for'§2,500, at the same time declaring that it was for rents which he had received for her, and that this check was drawn upon the bank in which he had deposited these rents, is sufficient proof of an indebtedness to the extent of §2,500 from the estate of the husband to the wife, notwithstanding the fact that she did not present the check to the bank for payment until eighteen months after its receipt by her and after the- death of her husband.</p>

<p>Attachment — an assignee may move to vacate it — an allegation that he “is the assignee" is sufficient—-a corporation may secure the debts of its bona fide creditors.</p> <p>Proof that an insolvent corporation had for some time had great difficulty in meeting its obligations and continuing its business, had resorted to various devices to pacify its creditors, and that it had assigned certain of its book accounts and property to bona fide creditors, is insufficient to support an attachment obtained on the ground that the corporation was about to assign and dispose of its property with intent to hinder, delay and defraud its creditors.</p> <p>The assignee of the property of a corporation, against which an attachment has been obtained, may move to vacate the attachment upon the mere allegation that he is such assignee, and he is hot required to bring his title into court until it is questioned.</p>

Appeal by the defendant, Ernst A. J. Bjerrum, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 24th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s, office on the 13th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p> Corporate employees, used by the manager of the corporation for his mother-in-la/w —duty to furnish an accurate account—certificate to a case, on a/ppeui, when sufficient. . </p> <p>Where a director, who is also the superintendent and manager of a corporation,, uses the employees of the corporation in doing work upon houses belonging to his mother-in-law, it is his duty to keep true and just accounts so that the rights of the parties may be intelligently and definitely settled, and it is the duty of the motherdn-law to explain and make clear questions in respect thereto arising between her and the corporation.</p> <p>A certificate appended to a case on appeal reading “ The foregoing case contains all the evidence relating to the matters contained in said case and bill of exceptions,” is sufficient, as it is not necessary that the case should contain all the evidence taken on the trial, when oply a portion of the cause of action, or of the defenses litigated on the trial, are brought up for review.</p>

<p>Accounting of a general assignee in the Supreme Court — compelled by petition and citation, not by action.</p> <p>Under chapter 380 of the Laws of 1885, conferring upon the Supreme Court and ■its justices the same jurisdiction to entertain an action for an accounting by-an assignee for the benefit of creditors as that formerly possessed by County Courts and county judges under the General Assignment Act (Chap.' 466, Laws of 1877), the Supreme Court may proceed in such a matter either by action, or by a petition and citation, and having prescribed the latter form of procedure by its rules, a creditor has no right to insist upon adopting the rem- ■ edy by action to compel such an accounting—the right of election as to the form of procedure lies with the court and not with the creditor.</p>

Appeal by the plaintiff, the New York and New Jersey lee Lines, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of May, 1897, granting the defendant’s motion to set aside the verdict of a jury rendered in favor of the plaintiff on the 17th day of May, 1896, and granting a new trial of the action.

Appeal by the defendant, Marcus Moses, one of the marshals of the -city of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county -of Hew York on the 1st day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d.day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.

<p> Refilling of a .chattel mortgage—not necessary to protect its lien on a leasehold interest in real property. </p> <p>The omission to refile, at the end of the year,- a mortgage executed by a corporation, other than a railroad, upon a leasehold interest in real property and also . upon chattels, which has been once duly recorded and filed as a chattel mortT gage, does not render the mortgage void as to creditors, as regards the leasehold interest, which is a chattel real and does not come within the scope-of the words “ goods and chattels,” used in chapter 379 of -the Laws of 1833.</p>

<p>Appeal by the defendant, Peter Garrahan, from a judgment of the Court of General Sessions of the Peace in and for the city of Hew York, rendered on the 31st day of July, 1895, convicting him of the crime of grand larceny in the second degree.</p>

Cboss-appeals by George J. Gould and others, as executors and trustees under the will of Jay Gould, deceased, and by James A. Roberts, Comptroller of the State of Few York, and Ash bel P. Fitch, comptroller of the city and county of Few York, from an order of the Surrogate’s Court of the county of Few York, entered in the office of said Surrogate’s Court on the 1st day of October, 1896, which affirmed an order theretofore made by said Surrogate’s Court fixing the value of…

Appeal by the defendant, Robert E. Westcott, as President of the Westcott Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of-New York on the 17th day of February, 1897, upon the verdict of a jury.

<p>Foreign divorce—second mwrriage of plaintiff adulterous — custody of child. , .</p> <p>Where a wife, resident in the State of New York, left it, ostensibly to visit friends in Minnesota, but in fact proceeded to North Dakota and there procured, after a residence of ninety days, an absolute divorce, in an action in which the husband, a resident of the State of New York, was not served with process in the State of North Dakota, but Was personally served therewith in the State of New York, and did not appear or answer, and she thereafter married again in North Dakota, under the laws of the State of New.York the divorce is void, and her intercourse under- the subsequent second marriage in Noi-th Dakota is adulterous and entitles her husband to an absolute divorce and to the custody of a child " of the marriage which she deserted when she left, the State of New York.</p>

Appeal by the plaintiff, Alexander Blumberg, from an order of the Supreme Court, made, at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 10th day of Ap 1897, denying his motion for a discovery of the defendant’s books.

<p>Ejectment — an injunction to prevent a receiver appointed in another action from paying over the rents collected i>y Mm, is improper. .</p> <p>. In an action of ejectment an injunction cannot be issued to restrain a receiver .. appointed in another action from paying over- rents collected from the premises by him in accordance with the decree in such action, and the title to ■ moneys in the hands of the receiver and the question of his duty to pay them in the manner directed by the decree in such other action will not be determined upon affidavits.</p>

<p>Appeal by the plaintiff, John J. Curry, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of April, 1897, denying his motion for a temporary injunction.</p>

Appeal by the defendant, Ernst Plath/from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Clarence Lexów, as the permanent receiver of the F. J. Kaldenberg Company, from an order of the Supreme Court,made at the New York Special Term and'entered in the office of the clerk of the county of New York on the 24th day of December, 1896, allowing to Amelia Gorman,- as executrix, etc., of John J. Gorman, deceased, late sheriff of New York county, sheriff’s fees and keeper’s Charges. -

<p>Appeal by J. Lee Humfreville from an order of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the 30th day of April, 1897, adjudging him guilty of a contempt of court, imposing a fine upon him and directing that he be committed by the sheriff of the city and county of New York to the common jail, and there be detained until he pay such fine.</p>

Appeal by the claimant, George B. Lanck, from an order of the Supreme Court, made at the ¡New York Special Term aud entered in the office of the clerk of the county of New York on the 7th day of April, 1897, overruling his exceptions to the report of a referee appointed to ascertain the liens upon the surplus money in the action and confirming said report.

<p>• Appeal by the defendant, H., Winslow White, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office .of the clerk of the county óf New York on the 5th day of February, 1897, upon the verdict of a jury rendered by direction:- of the-court. . .</p>

Appeal by the plaintiff, Eugene Clifford Potter, and by the defendants, Charles H. T. Collis, as Commissioner of Public Works of the city of Hew York and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of May, 189T, denying the plaintiff’s motion for an injunction pendente lite, and vacating an injunction contained in the order to show cause.

Appeal by the defendants,. Charles J. Warren and another, from a judgment of the Supreme Court in favor df the plaintiffs, entered in the office of the clerk of the county of New York on the 13th day of January, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 12th day of January, 1897, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Luiz A. da Cunha, as executor and trustee. under the last will and testament of Charles Gedney, deceased, from a judgment of the Supreme Court in favor of the defendant William II. Gedney, entered in the office of the clerk of the county of New York on the 28th day of August, 1896, upon the report of a referee.

Appeal by Ashbel P. Fitch, as Comptroller of the City of New York, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 15th day of April, 1-891, setting aside an order entered upon the report of an appraiser, and remitting the proceedings to the appraiser to make a new report.

Appeal by David E. Austen, as receiver of taxes of the city of New York, and others, from portions of ah order of the Supreme Court, made at the New York Special Term and entered in the' office of the clerk of the county of New York on the 28th day of January, 1897, directing a distribution of the moneys in the hands of the receiver, and determining the order of priority of payment.

<p>Marketable title—an express .trust may be 'valid, although no trustee is named — ' effect of apower of disposition at death given to the beneficiary — sale in partition.</p> <p>The will of a testatrix, who left four children, after making a specific devise of a house and lot, provided: “ The remainder of my estate * * * ■ is to be divided into four equal shares,” “one share each to be given absolutely ” to each of three children; • “ the remaining one-fourth share is to be invested and held in trust for the benefit of my son Addison McDougall, and the income from said share to.be paid him semi-annually or annually as he may desire it, but he (Addison) is to have the right to bequeath his share at his death to whomsoever or whatsoever he pleases, should he survive me.”</p> <p>Meld, that the provision relative to the son. Addison, notwithstanding the failure óf the will to name a trustee, created an express trust,, within section 55 of . the Statute of Uses and Trusts (1 R. S. 728), and that the legal title to an . undivided.one fom'th interest in the property would vest in a trustee, which the court would appoint to execute the trust;</p> <p>That 'a good title to such óhe-fóufth interest would not be conveyed by a deed --diily fexecuted-by all the children of the testatrix;</p> <p>That, under the power of disposition given to Addison McDougall, he could create an estate which would pass under the will of the testatrix, and be superior to any estate which he and the other children of the testatrix could convey by deed.</p> <p>Semble, that a purchaser at a sale in an action for a partition of the property, in which the four children and a trustee when appointed were parties, would obtain a good title.</p>

Appeal ,by the plaintiff, Isaac Haft, from .a judgment of the Supreme Court .in favor of the defendant, entered; in the office of the clerk of the County of New York on the 13th day of February, 1897, upon a nonsuit, granted by the court after a'trial at the New York Trial Term, ánd also from,'an order entered in .said clerk’s office on the 8th day of February, 1897, denying the plaintiff’s motion for a new trial made upon' the minutes, and also from an order bearing date…

Appeal By the plaintiff, Ellis 'Goldberg, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Rew York on the 4th day of December, 1896, directing Thomas D. Rambaut, as receiver, to sell a- judgment for $10,926.34, previously entered in the action, and which is; in form in favor of the receiver against the defendants Jacocks, composing the firm of Joseph E. Jacocks & Co.'

Appeal by tíie defendants, Theodore Roosevelt and others, as police commissioners of the city of Yew York, constituting the board of police commissioners of the police department of' the city of Yew York, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 6th day of May, 1897, directing them to file a further return to the writ of certiorari issued in. the proceeding.

<p>Appeal by the plaintiff, Alice M. Destello, from.a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Madison on the 4th day of March, 1891, upon the decision of the court rendered after a trial at the Schuyler. Special Term, sustaining the defendant’s demurrer to the plaintiff’s amended reply, with notice of an intention to bring up for review an order of the Supreme Court, made at the Schuyler Special Term .and entered in the office of the clerk of the county of Madison on the 4th day of March, 1897, sustaining said demurrer, and directing final judgment dismissing the plaintiff’s complaint.</p> <p>This action was brought to recover upon a promisory note made by the defendant on May 28, 1884, and payable to the plaintiff “ three years after date.” ' ■</p>

Appeal by the defendants, James H. Williams and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Tompkins on the 5th day of April, 1897, upon the report of a referee setting aside as null and void an assignment dated December 19, 1893, from the defendants Bufford and Kitson to the defendants Williams and Redfield of three certain letters patent, and decreeing that Bufford and Kitson execute in due…

Appeal by the defendant, Jacob Frank, from a judgment'of the County Court of Fulton county in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 6th day of February, 189Y, upon the decision of the court affirming a judgment in favor of the plaintiff rendered by a justice of the peace.

Appeal by the plaintiff, Fremont K. Noble, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of St. Lawrence on the 2d day of March, 1897, upon the decision of the court rendered after a trial at the St. Lawrence Special Term dismissing his complaint, with costs.

Appeal by the plaintiff, Mary L. Patrick, from a judgment of the County Court of Tompkins county in favor of the defendant, entered in the office of the clerk of the county of .Tompkins on the 19th day of March, 1896, upon the decision of the court reversing a judgment in favor of the plaintiff rendered by a justice of the peace. The summons of the justice was served on the defendant on the 9th day of April, 1895.

Appeal by the defendant, Edwin G. Glass, as supervisor of the town of Watervliet, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of 'the county of Albany on the 11th day of May, 1897, directing that a peremptory writ of mandamus issue commanding him to pay to the relator certain moneys claimed to be due him as police justice of said town.

Appeal by the defendants, Frederick Oollin and others, composing the common council of the city of Elmira, N. Y., for the years 1896 and 1897, and constituting the canvassing board for the purpose of canvassing the election returns upon the city election held March 2, 1897, from an order of the Supreme Court, made at the Chemung Special Term and entéred in the. office of the clerk of the county of Chemung on the 20th day-of March, 1897, directing that a jDeremptory writ of…

Appeal by the defendant, Edwin C. Jarvis, from a judgment of the County Court of Chenango county, entered in the office of the clerk of the county of Chenango on the 21st day of December, 1896,. affirming a judgment of the police justice of the village of Norwich, rendered on July 24, 1896, adjudging him guilty of a misdemeanor in having- violated section 1 of ordinance 7 of said village.

<p>Negligence — bursting of a fly wheel of an engine—an engineer, using his best judgment in a moment of peril, cutting off an electric current from the generator of the engine before he shut off the steam from the engine itself.</p> <p>Evidence that an engineer, employed in a power house in which were two engines working in multiple and used to generate electricity, upon noticing a violent ■ sparking at the generator connected with one of the engines, and ascertaining that that engine Was carrying much the heavier load, instead of first shutting off steam to stop the operation of the engine, broke the current instantly in order to stop the trouble at the generator—in the belief that the automatic governor of the engine would prevent it from running dangerously fast until he should have time to reach the throttle which was distant only twenty-four feet — and that he then immediately shut off steam from this engine, and, while passing to the second engine, the fly wheel of the first burst from centrifugal force, is hot, even upon the assumption that the engineer made a mistake in breaking the circuit before he shut off steam, sufficient proof of negligence to, charge his employer with responsibility for the death of a person struck by one of the fragments of the wheel, it appearing that the engineer acted promptly in the premises and used his best judgment.</p>

<p>Appeal by the petitioner, Henry R. Pierson, as executor, etc., of Henry R. Pierson, deceased, and another, upon the law and the facts, from so much of a decree of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 19th day of March, 1896, as adjudges that the claims of Edward A. Durant, Gertrude M; Frazer, William Barnes, Jr., and the two claims of Charles Bridge, the claims of Jared P. Smith, Charles Tracey, Matthew W. Bender, John F. Rathbone, Dewey Brimmer and A. Bleecker Banks, and each of them, or either of them, were-entitled to share in the distribution of the individual estate of the said Henry R. Pierson, deceased, in the proportion which each or either of their said claims bears to the claims of the other individual creditors of the said Henry R. Pierson, deceased.</p> <p>And, also, from so much of the said decree as decides or adjudges that the claims of Mary 0. ■Miller,’as executrix, etc., of Hiram Miller, deceased; William Parrott, Frederick P. Gordon, Annie E. Gordon, Charles M. Cuvier and Eleanor F. Van Dyke, or either of them,.are to be admitted and established as claims against the individual estate of Henry R. Pierson, deceased, within the ■ principle of the decision made by Surrogate Conway ; that is to say, that they, or either of them, are to share in the distribution of the individual estate in the proportion which each or either of said claims bears to the claims of the other individual creditors of said Henry R. Pierson, deceased.</p> <p>And, also, from so much of the said decree as decides or adjudges that Schedule “ D ” therein referred to is amended so as to include therein the claims of the persons above referred to, and each of them, or . either of them, and as thus amended that said account of proceedings is approved and confirmed.</p> <p>And, also, from that portion of the said decree which decides or adjudges that the executor pay a dividend of thirty-three and one-third per cent to the persons above mentioned, or either of them, upon their, or either of their, claims so ascertained and determined in and by said decree.</p> <p>And the appellants also intend to ■ bring up for review on said appeal the order of-the surrogate of the county of Albany, made on: the 24th day of January, 1896, whereby it was ordered that the above-entitled'proceedings be opened so far as to admit-proper proof of the claim made by Mary 0. Miller, as executrix, etc., of Hiram Miller,. deceased, and that William Parrott, Annie E. Gordon, Frederick P. Gordon and Charles M. Cuyler, and each of them, or either of them, were authorized to make proof of the claims held by each of them, respectively.</p>

<p> Statute of limitations—payments upon a note made by, and extensions granted to, one maker only. </p> <p>A joint and several note executed "by a mother and by her son, upon a loan made to both, is barred as to the mother after the lapse of six years, where it appears that, during that, time, the son, who was the agent of his mother and managed her estate, and, at times, mingled her funds with his own, made every payment of interest thereon out of his own funds, and asked, in'his .individual name for every extension of the time of payment.</p>

■ Appeal by the plaintiff, Luther 0. Warner, as receiver of the property of. Eugene Sanders, from a judgment of the County Court pf Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the'17th day of March, 1897,' upon the decision of the court affirming a judgment of the City Court of Albany dismissing the complaint with costs.

Appeal by the plaintiff, Orren E. Martin,'from a judgment of the Supreme Court in favor of the defendant, C. Cooper Clark, entered in the office of the clerk of the county of St. Lawrence on thé 23d day of March, 1897, upon the dismissal of his complaint by direction of the court after a trial at the St. Lawrence Trial Term.

Appeal by the defendant, James Taylor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 2d day of December, 1896, upon the decision of the court rendered after-a trial at the Ulster Trial Term before the court without a jury.

Appeal by the defendant, Mary Jane Gage, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the ■ 12th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The Central Vermont-Railroad Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 1st day of Juné,,'1896, upon the report of a referee.

Appeal, by the plaintiff, Lewis M. Smith, from a- judgment of the Supreme Court in favor of the defendant, 'entered in the office of the clerk of the county of Chemung on the 21st day of March,-1896, upon the report of a referee. On the 25th day of August, 1893, John -H. MdSTaney, who was engaged in a general merchandise business, by a written bill of sale-conveyed to-his father, John MdSTaney, all the merchandise in his-store.

Appeal by the defendant, William Hudson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county' of Saratoga on the 28th day of October, 1896, upon the decision of the court rendered after a trial at the Saratoga Special Term, the parties having waived a trial by jury.

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a" judgment of the County Court Of Madison county, entered in the office of the clerk of the county of Madison on" the 10th day of January, 1897, upon the verdict of a jury rendered upon appeal from a judgment of a justice of the peace in favor of the defendant, and also from an- order entered ill said clerk’s office on the 28th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover for injury to the plaintiff’s colt, alleged to have been caused by a fence constructed by the defendant;</p>

<p>Common carrier — bound by the unauthorized, act of a conductor in improperly issu- ’ ing stopover tickets—ejection from a. car without the use-of force—damages for the indignity. .</p> <p>Evidence, given in an action-, tending-to show that after the.plaintiff, accompanied by her husband, had boarded a street car, .the-husband told- the conductor that .they wished to stop over at a certain point, paid two through fares- arid received two tickets from the conductor, which the latter took from a book, punched; . and said were good for a stopover; that subsequently, when the plaintiff and her husband attempted to board the next car, their tickets were refused-, and upon their refusal to pay additional fares they were ordered by the conductor to leave the car at a point a mile and a half distant from their home, is proof sufficient to entitle the wife to maintaizqan action against the street car corporation for her wrongful ejection from the car, as the act of the first conductor in giving transfer tickets, containing on their face no limitation as to their use, was one within the scope of his apparent authority and bound the railroad company to carry the passenger to the end of that route — notwithstanding the fact that the rules of the company, not communicated, however, to the passenger, gave the first conductor no right to issue any stopover tickets to be used upon the same line, and authorized him to issue such tickets only in case the passenger was transferred from a point on one line to a point upon some other line operated by the defendant.</p> <p>The fact that no actual force was used by the second conductor towards the passenger did not deprive her of her right to recover damages, and the indignity involved in the passenger’s being compelled to leave a car in which others were riding was matter proper for the consideration of the jury.</p>

Appeal by the defendant, Orlando Cooper, from a judgment of the County Court of Cortland county in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 18th day of December, 1896, upon the decision of the court affirming a judgment rendered by a justice of the peace in favor of the plaintiff for the sum of fifty dollars and eleven cents damages, besides costs.

Appeal, by the defendant, James Saunders, from aft interlocutory judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 21st day ¡ of December, 1897, upon the decision of the court rendered after a; trial at the Albany Special Term, sustaining the plaintiff’s demurrer to the second -defense set up in the defendant’s answer; ' This action was commenced December 2, 1893.

Appeal by the defendant, Caroline G. Caswell, as executrix, etc., ■of Horace T. Caswell, deceased, from a judgment of the Supreme Court in - favor of the plaintiff, entered in the office of the clerk of tbe county- of Ulster oh the 26th day of February, 1897, upon the decision of the court rendered after a trial at the Ulster Trial Term before the court without, a jury.

. Appeal by the plaintiff) James Kingman, from so much of á judgment, of the Supreme Court, entered in the office of the clerk of the county of Columbia on the 24th day of December, 1896, upon the decision of the court rendered after a trial at the Columbia Trial Term, before the cpurt without a'jury, as determines that the , mortgage held by the defendant Eve M. Dunspaugh is a prior lien : to the mortgage of the plaintiff. . . . .

<p>Appeal by the plaintiff, John Wemple, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 6th day of March, 189T, vacating a preliminary injunction restraining the defendant Andrew Vanderzee, as executor of John Hauenstein, deceased, from paying out certain moneys bequeathed to the defendant John J. Hauenstein by the will of said deceased.</p> <p>The instruments, construction of which is sought in the complaint, are as follows:</p> <p>“ Uote.</p> <p>“ Albany, Oct. 16, 1878.</p> <p>“For value received, I hereby promise to pay to John Wemple twenty-five hundred dollars, with interest, payable at the death of my father, John Hauenstein, and I further agree with the said John Wemple to pay the amount due on said note out of any money or property that may come to me from the estate of my father, the said John Hauenstein, provided this note or any part of the same remains unpaid at that time, and this note is executed by me and delivered to said Wemple and accepted by said Wemple upon the annexed conditions, which are made a part of this note.</p> <p>“ (Signed.) JOHU J. HAÜEUSTEIU.”</p> <p>“ The conditions referred to in foregoing note are as follows: That the said Wemple accepts said note in full satisfaction and payment to said Wemple of any and all debts owing by said Hauenstein to said Wemple, and of any and all promissory notes heretofore executed for the accommodation of said Hauenstein, and which promissory notes were duly indorsed and negotiated by said Hauenstein, and in consideration of the execution and delivery of the foregoing note, by said Hauenstein to said Wemple, the said Wemple agrees to and with said Hauenstein to pay said notes executed by said Wemple as aforesaid and indorsed by said Hauenstein as aforesaid at the maturity of the same, and to save the said Hauenstein harmless of and from all damages and costs which may arise by reason of said promissory notes.</p> <p>“(Signed.) JOHU WEMPLE.</p> <p>“Witness: JOHU J. HAÜEUSTEIU.</p> <p>“ Scott D. M. Goodwin.” .</p>

Appeal by the defendant. Asbury Cable, from a judgment of the County Court of Delaware county in favor of the plaintiff, entered in the office of the cleric of the county of Delaware in March, 1896, upon the report of a referee.. .

Appeal by the defendant, Carrie A. Bouse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 16th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of October, 1896, denying the plaintiff’s motion for a new trial made upon the minutes. The jury rendered a verdict in favor of the plaintiff for $350.

Appeal by the contestants, Edwin B. Weeks and others, from an order of the County Court of Tompkins county, entered in .the office of the clerk of the county of Tompkins on the 10th day of November; 1893, modifying the findings .and report of commissioners theretofore appointed in the proceeding. . The. General Term of the old fourth department dismissed the appeal by an order entered in the Tompkins county clerk’s office June 21, 1894.

Appeal by the relator, George M. Hoyt, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 13th day of April, 1897, denying his motion for a peremptory writ of mandamus, to be directed to the defendant trustees, requiring them to assemble and appoint the relator to the office of street and water commissioner of the village of Ballston Spa, and to annul and declare void the appointment…

<p>. Certiorari--issued out of the Supreme Court, and attested on the 28th day of" April, 1896, directed .to James A.-Roberts, as Comptroller of the State of New York, commanding him to certify and return to the. clerk of the county" of Albany all and singular his proceedings relating to the taxation of ;the relator for the year ending November 1, 1895.</p>

<p>Appeal by the defendant, The Fitchburg Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 21st day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Norah Keating, from an order of the City Court of Yonkers, entered in the office of the clerk of said court on the 3d day of April, 1897, denying her motion for an ■ order preventing the plaintiff from taxing costs and entering judgment on an offer of judgment served by her.</p>

<p>Negligence — collision of a court with an electric street car — contributory negligence — dangerous situation not sought by the driver.</p> <p>On the trial of an action for an injury caused by the collision of a cart with an electric street car, the evidence tended to show that the driver of the cart, proceeding eastward, was obliged, by the presence of another cart between his own and the curb, to drive upon the east-bound track of an electric street railroad ; that, after having thus proceeded for some distance, the motorman of an east-bound car, approaching from the rear, signaled him to get off that track; that the position of the other cart being still such as to prevent his turning toward the curb, he then drove upon the west-bound track; that after he had followed this about 100 feet and at a time when still another car on the eastbound track was not far behind his position, he saw, while at a distance from it of from 100 to 200 feet, a west-bound car, which had come around a corner, approaching rapidly; that he then turned to go back into the east-bound track, but failed to clear, and was struck and inj ured by the west-bound car.</p> <p>The jury found that there was no danger when the plaintiff turned upon the westbound track; that he did not go i-nto a position of danger; that the necessity of continuing on the west-bound track was not removed when he attempted to turn from the west to the east-bound track and that the car was at such a distance from the cart as to make it safe for the plaintiff to be upon the west track.</p> <p>Held, that the driver of the cart was not guilty of contributory negligence and that, in turning upon the west-bound track, he did not voluntarily and unnecessarily place himself in a position of danger.</p>

Appeal by the defendant, The Trustees of the New York and Brooklyn Bridge, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of May,. 1897, denying its-motion to amend its answer.

<p>Appeal "by the plaintiff, Peter P. Guldseth, from a judgment of the Supreme Court in favor of the defendants, entered in the office-of the clerk of the county of New York on the 19th day of June, 1896, upon the dismissal of. his complaint by direction of the court after a trial at the Kings County Trial Term.</p>

<p>Appeal by the defendants, Barzillai G-. Neff and others, constituting the board of assessors of the city of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of May, 1897, vacating an assessment upon the capital stock of the relator, the Brooklyn City Railroad Company, and directing a reassessment.</p>

Cross-appeals by. the plaintiff and the defendants from an order of the Supreme Court; made at the Kings County Special Term, and-entered-in the office of the clerk of the county .of Kings on the 12th day of April, 1897, vacating an assessment upon the relator’s. capital stock, and directing a reassessment.

<p>Appeal by the defendants, Barzillai Gr. Reff and others, constituting the board of assessors of the city of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of March, 1897, vacating an assessment on the capital stock of the relator.</p>

<p>Street openings in Brooklyn—rule as to the award, where the same persons do not fix the value of land taken and also.assess the expense, of. the■ improvement—Laws ■ of 1888, chap. 583, tit. 19. , . ■</p> <p>Where a city charter provides that commissioners of appraisal shall determine only ■ the Value of the land taken for the .opening of a street, while the.board of city assessors are required to assess the cost of the improvement upon abutting property within the assessment district, the commissioners of appraisal must award to the owner the fair value of the land taken, and cannot diminish the award by a consideration, of the probability that the value of the- remainder of his -land will-he enhanced by the opening of the proposed street, which will make the remaining portion a corner lot." .'</p> <p>The rule that the amount awarded shall represent the difference between the value of the whole tract before the taking, and the value of the part left after the taking, is -not. applicable to such a case. .</p>

Appeal by the plaintiff, Stephen M. Bull, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 27th day of March, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing his complaint.

<p>Services — when the answer admits that all were performed under the contract pleaded.</p> <p>Where the complaint in an action alleges that the plaintiff performed services for the defendant in excavating a' certain number of cubic yards of rock, and the answer, after setting out the contract between the parties, alleges “ that the work, labor and services done by the plaintiff for the defendant, and alleged in the complaint, were done and performed under and in pursuance of the said contract and not otherwise,” there is an admission by the defendant that the rock excavated was work done under the contract, and the defendant cannot, on the trial, be allowed to prove that some of the rock excavated was taken from a lower level than that designated in the contract, and, hence, that such work was not embraced in the contract and should not be paid for.</p>

<p>Interpleader — what must be shown on an application for — not necessa/rily that the new claimant will probably be successful — oi'der refused where the new claim is merely colorable.</p> <p>The moving party on an application for an order of interpleader must, besides: showing the fact that two persons claim against him the same thing, prove-that he has no beneficial interest in the thing; that the claim made renders its. position, in paying either claimant, hazardous to the extent of creating a reasonable doubt as to the party entitled thereto, and that there is no collusion between the moving party and either .of the claimants; there is, however, no-authority for the position that it must appear that the claimant interposing the demand, and creating the doubt, will probably be successful.</p> <p>The application should be denied where the claim interposed appears to be merely colorable and where that claimant, although served by the plaintiff in the action with an order'and a subpoena, refused to be examined, as the defendant should not be allowed to procure the substitution of a possibly irresponsible person unless it makes some proof that such person has an existing right to the thing in dispute.</p>

<p> Street opening procedure—stay of an appeal and procedure with a reference directed hy the order appealed from, ordered, </p> <p>"Where the court, upon the confirmation of the report of commissioners in a proceeding to take lands for a street, strikes out, at the instance of rival claimants, an award made to one set of heirs; directs that the award be made as to “unknown heirs;” that it be held subject to the further order of the court, • and that a referee be appointed to determine which set of claimants is entitled • to it, the court may subsequently, at the instance of the defeated heirs', who •' are assessed for the benefits of the work almost to the extent of their award, , direct an appeal, which they have taken from the order directing the award to be made aS to “ unknown heirs,” to be suspended, and that the referee proceed ; with the reference.</p>

Appeal by the. plaintiff, Edward PI. Murphy, from a judgment of the Supreme Court in.favor of the defendant Henry L. Davis, as guardian, etc., of George Davis, Jr., and Sarah Davis, entered in the office of the clerk of. the county of Hew York; on the 15th day of 1896, upon the decision of the. court rendered after a trial at. the Hew.York Special Term'dismissing'his complaint Upon the merits.' This appeal ■ was transferred from ,the first department tó the second…

Appeal by the defendant, Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of October, 1896, upon .the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes.