Volume 19 — New York Miscellaneous Reports

<p>1. Pleading — Admissions in answer — When not available in aid of complaint.</p> <p>A denial of the allegations of the complaint calls upon the plaintiff for his proofs, notwithstanding express allegations, conflicting with the denial, contained in affirmative pleas in the answer.</p> <p>2. Benevolent societies — Pleading.</p> <p>In an action by an administrator of a deceased member of a benevolent society to recover upon his certificate, the answer denied the allegations of the complaint that the deceased left no beneficiary, father, mother, wife or child, but alleged the same facts upon information and belief as part of an affirmative defense based on a rule of the supreme, body, providing that in such a case the benefit should revert to it. .Held, that plaintiff was not .excused from proving the death .of the father and mother of the deceased by the affirmative allegations of the answer.</p>

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

■ Appeal by defendants from an affirmance by the General Term of the City Court of a judgment entered upon a verdict in favor off plaintiff for $700, and interest.

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

Appeal of the defendant from an affirmance by the General Term of the City Court-of a judgment in favor of the plaintiff entered upon a verdict directed by the court. The action was brought by the former president of the defendant company to recover salary under a resolution of the board of directors adopted during his term of office. The defense was a denial of knowledge or information sufficient to form a belief as to> the truth of the allegations of the complaint.

of tbe Sixth District Court in favor of the plaintiff for $65,. besides costs. The action was upon' á check given in payment for .a horse bought at auction, and the defense was breach of warranty, fraud, and that the plaintiff was not the real party in interest.

■ Appeal by the landlord from a final order in summáxy proceedings in favor of the tenant, rendered in the Second District Court.

<p>Appeal from judgment rendered by the justice of the Second Judicial District Court upon default of appearance by the defendant, who assigns error of fact in that the summons had not been served, upon him.</p>

Appeal by the defendant from a judgment of the justice of the Eleventh District Court in favor- of thé plaintiff for $22.25, besides costs. The action was for goods sold to the defendant’s wife, ■and the defense was that the articles purchased were not necessary, and that all necessaries were supplied by the husband..

<p>Appeal from judgment rendered by the justice of the First Judicial District Court in favor of the plaintiff. Action for goods sold and delivered.</p>

.. Appeal by the plaintiff from a judgment of the justice of the Seventh District Court in favor of the defendant for costs. The action is by a referee appointed by the Supreme Court, to sell premises, under decree of foreclosure, against the as: signee of the bidder, to whom the premises were struck down at public auction.

<p>Appeal from judgment of the First Judicial District Court, rendered in favor of the plaintiff.</p>

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

<p>1. Trial — Defect in proof cured.</p> <p>* If the defect in plaintiff’s proof is afterward supplied by either party during the trial it is cured.</p> <p>3. Chattel mortgage — Covers only existing property.</p> <p>A chattel mortgage on a fluctuating stock only binds and affects property existing at the time it was made.. -</p> <p>3. Replevin — Compensation of marshal — Daws 1883, chapter 410.</p> <p>Under section 1711 of the Consolidation Act, in reference to city' marshals, the compensation for trouble and expenses in taking possession of and preserving property replevied is left to the discretion of thé justice.</p>

<p>1. Appeal — Weight of evidence.</p> <p>The finding of the jury and the affirmance by the General Term of the City Court of New York, concludes the conflict of fact, and the Appellate Term is only called upon to determine whether there was any evidence in support of the judgment, or of the ruling excepted to whereby a motion for a dismissal of the complaint was denied.</p> <p>2. Sáme.</p> <p>Where there was ho exception to the justice’s charge to the jury, nor any question presented' by request to charge, there is nothing before the Appellate Term" to review.</p> <p>3. Same — Questions not raised below.</p> <p>Where it is claimed on appeal that the action was not maintainable because the plaintiff during its pendency had obtained a judgment of foreclosure in an action founded upon a mortgage given as security for rent, the recovery having included the rent in payment of which the note in suit was given, and no leave of court to prosecute the action having apparently been obtained,, held, that, as the question was not raised by the answer and the point brought before the Appellate Court only by an exception taken to the denial of- defendant’s motion for leave to amend his pleading after the close of the case, the objection is not available.</p>

Appeal by landlord from final order, made in summary proceedings- in favor of tenant by the justice, of .the Eighth Judicial District Court. - ■ -

Appeal by landlord from final order made' in summary pro- • ceedings on verdict, of jury in favor of tenant and under-tenants:

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

<p>Cloud on title — Mortgage — Priority of record.</p> <p>Upon an exchange of lands the deeds and a purchase-money mortgage for the difference in their value were deposited with an attorney in escrow to be delivered some six weeks later. On the same, day, but subsequent to the execution of said deeds and mortgage, the defendant, the mortgagor, executed and delivered to his wife another mortgage on the same property, which was recorded immediately. Held, that plaintiff’s lien for the unpaid purchase money attached at the instant of the delivery of his deed before any mortgage given by the defendant could become a lien thereon; that his mortgage was entitled to priority, and that as the record apparently gives priority of lien to defendant’s mortgage to his wife it constituted a cloud on plaintiff’s title, to remove which ah action would lie.</p>

<p>Jurisdiction. — City Court of New York.</p> <p>The City Court of New York has jurisdiction of an action brought by a resident of Brooklyn against a foreign corporation on a contract made out of this state.</p> <p>Maas v. Cunard SS. Co, 18 Mise. Rep. 379, affirmed.</p>

<p>1. Brokers — Commissions.</p> <p>An unexcused refusal by the principal to execute a contract with a purchaser who is willing and able to perform, procured by a broker upon his employment, renders him liable to the broker for his commissions.</p> <p>2. Same.</p> <p>It is no excuse for such a refusal that the broker declined to make. his right to commissions contingent upon the purchaser’s performance of the contract on his part. . ’ ' • .</p> <p>3. Trial — Exceptions — Absence of proof of misrepresentation as to rent. -</p> <p>The fact that there was evidence there were no leases of certain premises, as had been represented, is insufficient to support an . exception to-a charges that there was no evidence that the income in, rents was- less than the sum represented.</p> <p>4. Same.</p> <p>If a defendant desires some addition, to or qualification of a charge based- upon .a construction of the answer which is not its. obvious, construction, he should point out the defect or suggest the nature of - the qualification; a general exception is not sufficient to raise the question.</p> <p>Friénd v. Jetter, 18 Mise. Rep. 368, affirmed.</p>

. Appeal hy the defendants from an affirmance hy the General Term of the City Court of a judgment in favor of the plaintiff, entered upon the verdict of a jury for $1,837.37. The action was. for commissions upon the sale of goods.

Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment in plaintiff’s favor, entered upon a verdict for $2,000 damages. The action was to recover for personal injuries and loss of property, 'sustained by the plaintiff in falling from the ferry boat Kingston, into the Hudson river at the Franklin street ferry landing of the West Shore railroad in New York city, on the evening of July 21, 1893.

Appeal by defendants from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term, in favor of the plaintiff, entered upon the verdict of a jury.

Appeal by the defendant from a judgment for the plaintiff which was rendered by the District. Court in the city of, New York for the Eleventh Judicial District. Action to recover the penalty prescribed for the defendant’s refusal to issue a mileage book, designed for travel on its railroad, when applied to by the plaintiff, pursuant to the provisions of section 1 of chapter 1027 of the Laws of 1895, as amended by chapter 835 óf the Laws of 1896.

Appeal by defendant from an affirmance by the General Term of the City Court of an order made at Special Term, denying a motion to vacate an order of arrest.

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

judgment rendered by the justice of the Eighth Judicial District Court. Action for the recovery of a penalty, upon the relation of the commissioner of agriculture, under chapter 338 of the Laws of 1893.

<p>Warranty — Kindness of pony.</p> <p>Plaintiff purchased a pony from defendant, who warranted it to be “ gentle and kind, and sound and safe for children to ride or drive,1’’ When received the pony was sulky, and within a few days ran- away several times and balked and bolted. . Held,, that such bad conduct, shown so soon after the -sale, was sufficient to show that the animal was - not as represented at the - time of the sale,' notwithstanding testimony of his former owners to his good behavior while they- had him. -</p>

<p>1. Negligence — Sudden starting of street car.</p> <p>Plaintiff, a professional violinist, attempted to board an open street' car which had coiné to a stand, but before he could get both feet upon the step the car started with a jerky motion, which threw plaintiff to one side and his violin case came in contact with one of the pillars of the elevated railroad, resulting in the breaking of the case and the splitting of the violin. Held, that the facts justified a finding of negligence on the part of the- railroad company in starting the car; and that the injury to the violin was the direct consequence of such negligence. . .</p> <p>2. Same — Damages.</p> <p>In such a case the measure of damage is the expense of restoration of the property to soundness, compensation for the loss of it during the period of disability, and the difference in its value before and after the injury.</p>

Appeal by the plaintiff from a-judgment of the Sixth District Court in favor of the defendant, with costs'. Action to recover $227,50. for rent of an apartment in No. 65 West Seventieth street from the 15th- day of June, 1896, to the' 1st day of October, 1896, at $65 per month, with interest.

<p>Attorneys — Liability of substituted attorney to his predecessor.</p> <p>After procuring an order for alimony and counsel fees in an action for- divorce, plaintiff consented' to a substitution of the defendant as attorney on receipt of a consent by the client that upon collection under the. order he should be paid the counsel fee and $25 to be deducted from the alimony, which consent was witnessed' by the defendant. Subsequently thereto defendant procured an amendment of the- order by which the counsel fee was increased and the alimony diminished, and sufficient was collected by him to pay the plaintiff, but he refused to do so. ' .Held, that by virtue of the consent of the client it became the duty of the defendant to make such payment;, that he was not excused by the fact that the moneys were' collected under the amended order, or that he had paid the money to his client, and that an action for money had and received would lie therefor.</p>

<p>Appeal from a ■ judgment rendered by the justice of the Eleventh Judicial District Court, in favor of the plaintiff.</p>

<p>Sale — Evidence — Failure to correspond to order.</p> <p>The fact that the goods delivered differed in composition from the ones ordered cannot be shown under a general denial. If such was the fact the vendee should rescind and return the goods or recoup damages for breach of warranty.</p>

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

Appeal by plaintiff from a judgment in favor of the defendants,, with costs, rendered by the justice of the First District Court. . The action was to recover damages against the defendants as sureties for the breach of the covenant of a lease to Patrick.

Appeal from judgment rendered for the dismissal of the complaint by the justice of the Tenth Judicial District Court in an action tried before á jury,

<p>1. Statute. of frauds— Sale.</p> <p>Tó take a sale of goods out of the statute of frauds, the acts of the parties must be of " such á character as to unequivocally. place . the property within the power and under the exclusive dominion of the buyer, and the change of possession necessary is an open and public one, which, is to continue and be manifested by outward and visible signs, such as to render it evident that the possession of the vendor has, ended, for he must cease from his. apparent as well as real ownership.</p> <p>3. Same.</p> <p>Plaintiff purchased a store, fixtures and stock of his brother, but left him in charge with the same assistants, and- with the same sign upon the. building and delivery wagon, arid called at the store early in the mornings and in the evenings to take the money and close the store. Held, that , the sale, whs presumptively fraudulent as against his brother’s creditors, but that the statute was not available under a motion to dismiss the complaint, X as. the presumption could be rebutted by proof that there was no intent to defraud, and that question Was one for the jury. .</p> <p>3i Evidence — Value.1</p> <p>An acceptance by a party of an offer for' property of less than he claims ■that he paid for it, is admissible on the question of value as 'an admission against interest.</p> <p>4. Appeal — Exceptions.</p> <p>A single exception to the. whole charge and to each and every part of it will present no question for review on appeal, where the charge cphtáiñed several propositions, some of which Were unobjectionable.</p> <p>5. Witness — Credibility.</p> <p>The interest which .the law recognizes .as affecting credibility is that which is calculated to create bias or inclination of mind founded on some such relation to the matter in controversy as will give rise to some possible pecuniary gain or loss from the event.</p> <p>6. Trial — Jury are sole arbiters of value.</p> <p>A charge that the jury are the sole arbiters as to value, notwithstanding, expert evidence, is not erroneous.</p> <p>7. Appeal — Objections to evidence.</p> <p>An objection to evidence must be sustained on appeal, if at all, upon the ground that it was placed at the trial.</p> <p>8. Trial — Cross-examination of witness.</p> <p>A party has no legal -right to cross-examine a witness except as to facts and circumstances connected with matters stated upon the direct examination.</p> <p>Rheinfeldt v. Dahlman, 18 Mise. Rep. 558, affirmed.</p>

<p>1. Judgment — Partners.</p> <p>Judgment in an action against copartners is properly rendered against all of them although they were not all served with summons.</p> <p>2. Negotiable paper — Action by payee against indorser.</p> <p>In an action by the payee of a note against the indorser, it is incumbent upon the plaintiff to show that the indorsement was made to give the maker credit with the payee.</p>

<p>Accord and satisfaction — Acceptance of check for less than sum claimed.</p> <p>Defendant having sold certain skins which' had been sent by plaintiffs as samples to order by, the plaintiffs insisted upon payment of the amount they had cost them, while defendant claimed to be liable only for the sum which they brought on the sale, and gave a check therefor to one of the plaintiffs, who agreed to accept the same if his partner was satisfied, and if not, to return it. The check was collected, but plaintiffs wrote that they had agreed to accept it on account, to which defendant replied that if they retained the amount 'accepted they, would be expected to do so in full payment. Held, that this constituted an accord and satisfaction.</p>

<p>1. Payment — Agency.</p> <p>Payment to an agent who has authority to collect, whether made" in cash or in personal check, is payment to the principal.</p> <p>2. Agency — Authority to modify contract.</p> <p>One who has been held out as having general authority to bind the principal and whose act in making a sale at less than list prices has been ratified by the principal, has apparent or implied authority to make a modification of the bill on account of delays in performance of the contract.</p> <p>3. Variance — ITonprejudicial to be disregarded.</p> <p>A variance between pleading and proof which is not prejudicial should be disregarded.</p>

<p>1. Benevolent societies — By-laws.</p> <p>The right reserved by a benevolent society to make by-laws intends only a right to make reasonable by-laws, and a member’s assent to the right to ■amend by-laws does not import an assent to a law whereby from some past action of the member, unimportant at the time, a discharge of the society from its obligations under the contract resulted.</p> <p>2. Same. -</p> <p>' A by-law exempting the local body from liability for sick benefits in case the member has applied for disability to be paid by the supreme body, if intended to be' retroactive as to such applications, is unreasonable, and, therefore, inoperative.</p>

<p>1. Uegligence — Crossing street car tracks.</p> <p>Plaintiff’s driver, before attempting to cross defendant’s tracks with a wagon-load of beer, looked for approaching cars and saw none, but before he could clear the track the hind wheel of the wagon was struck by a car which was traveling at a very high rate of speed, and which cleared the cross street before it could be stopped. Held, that a finding in favor of plaintiff was sustained by the evidence.</p> <p>2. Same — Damages.</p> <p>An award of $125 damages for injury to wagon and harness and to thirty boxes of beer and a demijohn of wine is not excessive.</p>

<p>. Appeal from a judgment rendered by the justice of -the First Judicial District Court in favor of the plaintiff. -</p>

<p>1. Bailment — Liability of bailee for- injury.</p> <p>A bailee who was in possession of property and charged with its custody at the time of an injury to it, must explain how such injury happened.</p> <p>2. Agency — Liability of one acting without authority.</p> <p>One who undertakes to act for another without authority is liable tó the person with whom he deals on the ground of an implied warranty of his authority and his liability is not necessarily measured by the contract, but embraces all injury resulting from his want of power.</p> <p>3. Appeal — Question not raised below.</p> <p>An objection toHhe form of the action cannot be raised for the first time on appeal.</p>

<p>1. .¡Negligence — Street railroads.</p> <p>Plaintiff’s evidence tended to show that while the car was standing at about the corner of a certain' street, he and his father went upon the platform for the purpose of alighting and were thrown off by the sudden starting of the car, and its turning upon a switch at the same time. The testimony on the part of defendant tended to show that the car was in motion when plaintiff left his seat and that the switch was forty feet from the Corner, Held, that a finding in plaintiff’s favor would not. be disturbed.,</p> <p>2. Same — Damages.</p> <p>Where no objection was taken on the trial and the judgment does not appear excessive, it will not be presumed that improper items were included ■ therein.</p>

<p>1. Deed — Fraud.</p> <p>Certain lands belonging to plaintiff having been repeatedly sold for taxes, and tax leases for 500 and 1,000 years, respectively, haying been given therefor, defendant wrote to the United States consul at Honduras, where plaintiff was living, requesting him to obtain a release of her title for the sum qf $200, his letter stating that the lots were not very valuable; that they had been sold by the state for taxes for many years and were occupied by people who bought at those sales, “ which vest the title in the purchasers for 1,000 years; ” that she was divested of all rights in both parcels and that as an experiment plaintiff was going to bring a series of suits to set those sales aside, hoping the occupant would compromise. This letter was given to the plaintiff, who consulted an attorney, and on being informed by him that if she desired to bring' such suit it would cost her a considerable sum, she made the conveyance. Held, that such conveyance was not induced by false and fraudulent representations.</p> <p>2. Appeal — Equity — Errors in admission of evidence.</p> <p>Errors in the admission of evidence in an equitable action are not a ground for reversal, where the decision was just and adequately supported by legal evidence..</p>

<p>1. Pleading — Demurrer to reply. '</p> <p>A demurrer to a reply is to be determined upon the entire record.</p> <p>2. Executors and administrators — Services rendered to.</p> <p>A claim for services rendered to executors in the management of the estate is one against them individually, and is not a charge 'against the estate.</p> <p>3. Same — Cannot revive a claim barred by statute.</p> <p>After a claim has become barred by the statute of limitations, an executor cannot revive it by a promise to pay.</p> <p>4. Pleading — Reply — Statute of limitations.</p> <p>In preparing a reply the plaintiff must set forth facts which will avoid the effect of the answer, and where he seeks to take the case out of the Statute of Limitations by a promise .of the defendant to pay, he must state the time of such promise definitely.</p>

<p>Motion by the plaintiff for the appointment of a receiver of the rents in a foreclosure action. ,</p>

<p>Parties — Indemnitors of sheriff — When cannot be brought in in an action for trepass.</p> <p>The act of a sheriff in taking property in replevin from the possession of one who was not a party to the action is unlawful, and his indemnitors are not entitled to be substituted in an action brought by such person against him for the trespass.</p>

<p>Executors — Reimbursement for taxes paid.</p> <p>Where an executor has paid taxes levied upon real estate previous to the death of his decedent he is entitled, upon a sale of the premises in partition, to reimbursement therefor from .the proceeds of sale.</p>

<p>Abatement and revivor — Breach of illegal contract.</p> <p>A cause of action for alleged breach of a contract wherein a married woman agrees to procure a divorce from her husband and marry another man, if he will provide, for the support of herself and 'her children from the time she leaves her husband, furnish money, for the divorce and give her an allowance, besides a provision in case of his dpath, and under . which she leaves her husband and lives, with such man- as his wife, for two years before procuring such divorce, and for five years thereafter without any ceremonial, marriage, does not survive the death of such man, and cannot be Continued against his personal representatives.</p>

<p>1. Deeds — Restrictive covenants — Tenement-houses.</p> <p>A house occupied in part by the owner and in part by the family of the owner’s son is. not a tenement-house within the meaning of a restrictive clause in a deed prohibiting the erection or carrying on of such a house on the premises or any houses except private dwellings.</p> <p>3. Same — Building line.</p> <p>A bay window extending from the foundation to the roof of a . building and which projects to within eight feet eight inches of the front of the lot constitutes a breach of a restrictive covenant that the front walls of any buildings erected shall set back at least ten feet from the front line.</p>

<p>1. C.osts — Eminent domain — Laws of 1888, chapter 345.</p> <p>Section 3372 of -the Code, in relation to costs and extra" allowances in condemnation proceedings, applies‘to proceedings to- take land under the Grade Crossing Act (chapter 345, Laws of 1888).</p> <p>2. Same — Extra allowance.</p> <p>It is not necessary to authorize an extra allowance in such a proceeding that the questions involved were difficult and extraordinary, but that fact may be taken into consideration in fixing the amount of the allowance.</p> <p>3. Same.</p> <p>An extra allowance may properly be allowed where there have been two trials and an appeal, and the value of the land has been shown to be very large.</p> <p>4. Same — Witness fees.</p> <p>Fees of expert witnesses are not allowable.</p>

<p>1. Divorce — Connivance.</p> <p>A divorce will not be granted to a husband where hé has connived at the adultery of his wife by passively permitting it to be carried on when he could have prevented it.</p> <p>3. Same — Condonation.</p> <p>Nor will a divorce be granted where the plaintiff, with knowledge of defendant’s guilt, has voluntarily cohabited with her. .</p> <p>■3. Same —■ Cohabitation — Presumption of.</p> <p>Cohabitation will be presumed from the fact that husband 'and wife continue to live in the same house, eat .at the'same table and reciprocate conjugal kindnesses.</p>

<p>1. Insurance — Lloyds policy — Validity.</p> <p>The provision in a Lloyds policy of insurance that no action shall be brought to enforce its provisions except against the attorney who is one of the underwriters and that each of the underwriters agrees to abide the result of such a suit as fixing his individual responsibility, does not oust the court of jurisdiction and is valid. .</p> <p>2. Same.</p> <p>Such provision absolutely prohibits the bringing of suits upon the policy'p-gainst the other individual underwriters, but does not prevent proceedings against them to enforce the judgment when obtained.</p> <p>3. Same — Limitation.</p> <p>The twelve months’ limitation for the commencement of actions has reference solely to the action against the attorney in fact and not to proceedings to enforce an established judgment.</p> <p>4. Same — Parties.</p> <p>The attorney in fact is a trustee of an express trust and may be sued upon the policy without joining the real parties in interest.</p>

<p>This is au application for a writ of peremptory mandamus directed to the county treasurer of Onondaga county, directing him to cancel a liquor tax certificaté issued to the above-named debtor, Julius Lenz, and to pay to said Alexander D. Jenney, as receiver of the property of said Lenz,. the pro rata amount of the tax paid for the unexpired term of said certificate.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>1. Usurpation of corporate franchise — Lloyds insurance.</p> <p>An action may be maintained under section 1948 of the Code against underwriters carrying on a Lloyds insurance.</p> <p>2. Same — Quo warranto.</p> <p>Section 1948 of the Code was intended as a substitute for the writ of quo warranto, which would lie in every' case where a franchise was unlawfully asserted and used.</p>

<p>Legacy — Interest.</p> <p>Á bequest in trust with a direction that the income shall be applied to the use of a person for life, does not entitle .the legatee to interest from the'-time of decedent’s death, where; the estate was not invested at the,time of such death so as to be productive of income, and the executors received none dpring the year following the granting of letters testamentary.</p>

<p>Municipal corporations — Negligence — Notice of intention to sue.</p> <p>A cause of action for personal injuries caused by the fall of a tree because of its rottenness and decay is one for negligence, although the tree is also claimed to have been a nuisance, and comes within the terms of chapter 572, Laws 1886, requiring notice of intention to sue to be filed with the corporation counsel, and an action thereon cannot be maintained unless such notice has been filed, although the notice of claim provided for by the Consolidation Act has been given.</p>

<p>Action upon a "copartnership indebtedness for borrowed money.</p>

<p>Demurrer to complaint. -</p> <p>The plaintiff’s complaint alleges that he is the owner of a certain judgment against the defendant duly rendered in Justice’s Court in his favor for $197.28, December 6, 1890, and that a transcript of such judgment was duly docketed in the Greene county clerk’s office December 19, 1890, and that such judgment has not been paid. That he obtained an order of the County Court of Greene county, June 19, 1896, on notice, granting leave to bring this action.</p> <p>Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause'of action.</p> <p>On the argument the attorney for the defendant stated that,; since serving the demurrer, he had .concluded that the demurrer could not he sustained, and consented that the demurrer be overruled. . The only question arising is as to the form of the order' and the amount of costs that" the plaintiff is entitled to, if any, on the demurrer.</p>

<p>Corporations — Action against directors for failure to file annual reports — Pleading.</p> <p>The complaint in an action to enforce the liability of directors of a corporation for failure to file annual reports, as required by section 80 of the Stock Corporation Law, must allege directly or by facts authorizing an inference that the corporation in question was a stock “ corporation other than a moneyed or railroad corporation. Such fact is not shown by allegations that the corporation is a domestic corporation, and that its principal place of business is in a certain county.</p>

<p>- Motion to set aside a verdict. '</p>

<p>Partition — Conclusiveness of judgment as to purchaser at sale.</p> <p>The judgment in an action of partition is conclusive as to whatever is therein adjudicated, and -the purchaser’s title will not be affected by any irregularity or defects not going to the question- of jurisdiction.</p>

<p>Marine insurance — Overloading — Burden of proof.</p> <p>Where a'policy of .marine insurance provides that the insurer will not toe liable for any loss consequent upon and arising from overloading or any violation of the navigation^laws and regulations of the United States, and the insurer shows that the vessel was overloaded in violation of the statute, the plaintiff has the burden of establishing that the overloading could- not have caused or contributed to the accident, but that it resulted from some peril insured against.</p>

<p>Security for costs — Return of deposit.</p> <p>The court has no power to. order the return of a deposit of money-made by a nonresident plaintiff as security -for -costs before the .time to appeal from a judgment recovered) by the plaintiff has expired.</p>

<p>Motion for peremptory writ of mandamus commanding the respondent to issue a certificate to the relator for witness’s fees, . pursuant, to section 616 of the Code of Criminal Procedure.</p>

The plaintiff purchased from the defendants twenty-six hales of Sumatra tobacco through a broker, and received from the latter a bought note, which reads as follows: “ Eew Yoke, June 9, 1890. “ Mr. S. Ashner, 154 Bowery, bought of M. Abenheim & Co., 2 and 4 Stone street, twenty-six bales Sumatra tobacco, Deli Poewa, BL, as per annexed return, Eos. 1,148.52, 1,154.14; net, 45,460, at $1.40 —$6,364.40. “ Terms: The goods are to be delivered, duty cash, not less than five bales…

<p>Motion to set aside a verdict for defendants directed by the court and for a new trial.</p>

One Pino was charged with grand larceny by one Giordino, and a warrant for his arrest was obtained by the latter.

Appeal by defendants from a judgment rendered by A. W. Craig, justice of the peace, on the 8th day of August, 1896, in favor of plaintiff and against defendants, for $29.18, damages and costs. Defendants gave their note to Peter Hydom for a patent right. That note was transferred to A. A. Paddock about the time it was given. After that note became due Paddock took it to defendants and delivered it to them and received a new note of defendants in place thereof.

<p>Depositions — Refusal to testify.</p> <p>The courts have no power to compel witnesses, subpoenaed to testify under a commission from another state; to answer questions put b> ■them, but the officer before whom they are required, to appear. has power under sections 920 and 2871 of the Code to punish their refusal to testify as a contempt by fine or imprisonment, or both.</p>

This is an. appeal from a judgment of the Municipal Court of the city of Syracuse in favor of the defendant for $18, damages and costs, rendered July 29, 1896. Action commenced between July 8th and July 18, 1896.

<p>New trial — Newly-discovered evidence in criminal case.</p> <p>A new trial will not be granted in a criminal case on the ground of newly-discovered evidence where such evidence consists of a retraction by a witness for the prosecution of his testimony givén on the trial, and a denial of the facts then testified to" by him, where such testimony was corroborated by circumstantial evidence, as in such case there is no probability that the result upon a new trial would be different.</p>

<p>1. Trust — Sale of goods induced by fraud.</p> <p>Plaintiffs, after rescission of the contract under which their property was acquired by the fraud of the vendee, can successfully follow and reclaim it in equity in the hands of the vendee’s administra- ■ tors, subject to the limitations that it must' appear they have ho adequate remedy at law, as in case of insolvency or dispersion or other cause, and also that the proceeds of the property be clearly identified.</p> <p>2. Same — Restriction of recovery.</p> <p>In such a case recovery, is restricted' to the property and proceeds in possession of the defendant at the commencement Of the action and identified with certainty.</p>

<p>Appeal by defendant upon questions of law from a judgment rendered by S. E. Spinning, a justice of the peace of the city of Borne, bn the 10th day of April, 1896, for $37.45 damages and costs in favor of the plaintiff.</p> <p>The action was brought to recover damages for the breach of a contract of which the following is a copy:</p> <p>“ Memorandum oe Agreement. ' Made, between William Roth, of the first part, and L. P. Haviland, of the second part.</p> <p>“ The party of the first part, in consideration of one dollar to --'-•-, in hand paid, and the covenant and agreement of the second part, hereinafter contained, hereby covenants and agrees: First, to plant, or cause to be planted, four acres of white sweet corn, in the com-planting season of 1895; second, to cultivate said corn carefully and well, and to pick the ears from, said com, and deliver the same, in their husks, to the party of the second part, the same day said corn is picked, at the factory operated by me in the town of Camden, Y. Y., or at any other place or places in.the town of Camden, at sucjh. times and in such quantities as the party, of the second part may direct, and in good canning condition. For which the party of the second part covenants and agrees to pay the said party of the first part on or before Yovember 30th next fifty cents for each and every one- hundred pounds of husked white sweet com, delivered as aforesaid, said com to be husked by party of the second part, and the party of the first part agrees to plant for no other packer in the season of 18-95, and plant’the seed com selected by the party of the second part, and to deliver no com Saturday afternoon.</p> <p>“ Wm. Roth,</p> <p>“L. P. Haviland.</p> <p>“Camden, Y. Y-, Api. 17ih, 1895.”</p> <p>The plaintiff, the second week in May, 1895, planted four acres of white sweet corn,' the seed having been furnished by defendant, and cultivated as required by contract. Plaintiff testified that it became “fit for harvest' about Sept. 8th or 10th.” Between the 6th and 8th he was told by defendant’s agent “ to get right into it when it Was fit and bring it along.” Plaintiff further testified that he picked September 9th and 10th and delivered at defendant’s factory. On the 10th defendant’s agent told him not to draw any more until he heard from him. Plaintiff told him he was afraid of early frosts. Other persons were drawing and defendant’s agent said it was because they could not handle so much" com. ’ On the 13th of September plaintiff received word to continue the delivery, and plaintiff -picked and drew on the 13th. Plaintiff was then told he could draw again on Saturday. On, Saturday plaintiff went there and was told he could'not draw until Tuesday following. At this time the corn was in good condition. A heavy frost occurred on Saturday night, the 14th of September. On the following Tuesday plaintiff picked and delivered one load and was told to deliver another the next day. Plaintiff picked and drew another load on Wednesday, but defendant refused to receive it. Plaintiff testified that at.this time the frost seemed to have affected the ears. Defendant looked at it and said the com was of no use to him, and that if it was all alike he did not want any more. Plaintiff told him it was all alike.</p> <p>Plaintiff further testified that when he made the contract he knew that corn struck by the frost was not in good canning condition, and that he did not think that the load that defendant refused, was as a whole in good canning condition. He also testified that the load he delivered on Wednesday was plainly affected by the frost; that the balance of the com was just' as bad, and that he knew it could not be delivered in good canning condition. That for all he knew, the corn, except for the frost, would have remained in good canning condition during the week following the frost. All the com that was delivered was paid for and this action is brought to recover the damages sustained by plaintiff by the failure of defendant to receive all the corn before it was injured. There was no substantial dispute as to the facts.</p>

<p>1. Trustees — Appointment and removal.</p> <p>The general power oí a surrogate to remove a trustee or allow him to resign, includes the power in a proper case-to stop the action of the trustee when the circumstances require it, which circumstances are within his judicial discretion, and his action cannot be attacked collaterally.</p> <p>2. Same — Commissions.</p> <p>The propriety of the allowance of commissions to the executors: of a deceased trustee is within the judicial grasp of the Surrogate’s Court, and cannot be collaterally attacked.</p> <p><3. Same — Appointment of new trustee.</p> <p>Assuming that the surrogate- has power to -remove a trustee and appoint a successor, and that the time and manner of the appointment is within his judicial discretion, subject to the main object of the statute, that there shall be no release of personal responsibility for money or property until final delivery to the new trustee, there can be no available method of effecting the -transition of responsibility from the old to the new trustee so that the duty of the one ceases and that of the other begins, save by the provisions of a decree designating the new trustee and placing him in such a position that “his receipt for the property of the trust- will be lawful.</p>

<p>Demurrer to a defense of the Statute of Limitations.</p>

<p>Excise — Liquor tax — Exceptions.</p> <p>The general exception in section 24 • of the Liquor Tax Law of 1896, as to places in which the liquor traffic was carried on at the time of the passage of the act, qualifies both subdivisions of that section, and applies to hotels and places devoted to the liquor traffic which are within on e-half mile of a penal institution, protectory, industrial school, asylum, state hospital or poor.house, and at least óne-half mile from the nearest boundary of an incorporated village or city.</p>

<p>Appeal from an order imposing a condition on allowance of an amendment to the complaint, and from an order denying a motion to set aside a taxation of costs. ,</p>

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

This, action was commenced by the plaintiff on or about the lYth day of April, 1893, against the defendant Heusner and John J. Gorman, as sheriff of the óounty of Eew York, to recover damages for a wrongful levy and. sale of the plaintiff’s'goods and chattels under an alleged attachment. „ . .

Plaintiff commenced an action in replevin and took the goods. The jury awarded possession to it and fixed the damages at $25, but did not fix the value. Plaintiff presented a bill of costs for one hundred and fifteen • and ninety-one one-hundredths ($115.91) dollars. Defendant objected to its taxation at that amount on the ground that under section 3228 of the Code, subdivision 2, no more than $25 could be taxed. Plaintiff moved for a new taxation. Its motion was denied.

<p>Appeal from judgment in favor of the defendant, entered upon a verdict. -</p>

<p>1. Undertaking — Examination of surety.</p> <p>It is the duty of one who examines a proposed surety upon an undertaking oh appeal to put down all the answers, whether they are satisfactory or not, or impress him favorably- or otherwise.</p> <p>2. Contempt — Justification of surety.</p> <p>The question whether a surety was guilty of contempt in swearing falsely as to his property on justification depends upon the correctness of his statements at the timé of the examination and his honesty and good faith in swearing to the values, and is not affected by a subsequent depreciation in the value of the property or his final disposition'.thereof.</p>

<p>Appeal from order denying motion for an order of arrest.</p>

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

<p>Execution against the person — Irregular judgment.</p> <p>- A judgment irregularly entered is sufficient, so long as. it is not set aside, to sustain an execution against the person.</p>

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

<p>1.. Trial — Adjournments. .</p> <p>A refusal to grant- a motion for an adjournment on the ground of the absence of a material witness is reversible error, where, the defendant-has not been guilty of laches and such absence was not foreseen. .</p> <p>2. Appeal — Denial of adjournment. ■</p> <p>'' An exception to a refusal to postpone a trial on the ground of the absence of- a material • witness is available on an appeal from the judgment. -</p>

<p>1. Sale — Fraud — Kennedy of vendee.</p> <p>A vendee, upon discovery of a fraud in the sale, may elect to cancel the contract and recover back the purchase price, or the value of the property taken or lost to him by reason of the alleged fraud.</p> <p>2. False representations — Proof of.</p> <p>False representations as to the incumbrances upon goods sold cannot be proved by testimony of a witness as to statements eis to indebtedness made to him by the bookkeeper of the alleged creditor.</p>

<p>Motion for leave to serve an amended answer.</p>

<p>Corporations — Elections.</p> <p>A by-law of a stock corporation which provides that “ a majority of the stock present in person, or by proxy at any meeting . of the' stockholders shall constitute a quorum ” means that it is necessary that a majority of the stock of the company shall be present in person or by proxy to, make a quorum, and an election at which a majority of the stock is not so represented is invalid'.</p>

<p>Costs — Extra allowance.</p> <p>A motion for an extra allowance must be ma'de before the entry of the judgment in the trial court; it is too late to make such motion after such judgment has been affirmed on appeal.</p>

<p>Motion to vacate warrant of attachment.</p>

<p>1. Insurance — Life — Company not bound by fraudulent application.</p> <p>An insurance company may be bound by the acts of its agents, but cannot be bound by a conspiracy in which its agents and the other contracting party aré participants.</p> <p>2. Same — Fraud.</p> <p>Where a person whose application for life insurance»has been rejected-makes a second application, upon which the examination is intentionally made by a different examining physician, whose examination is not as strict as the first, and it is undisputed that the applicant must have beén suffering from a serious disease at the time, such examination is a fraud on the company which will destroy the application.</p>

<p>Appeal from judgment in favor of defendant, entered on verdict; from order denying a motion for a new trial on the minutes, and from order denying motion for a new trial ón the ground of newly-discovered evidence and surprise. '</p>

<p>Appeal from order denying motion to file the examination in supplementary proceedings and to vacate a warrant of arrest and commitment.</p>

Appeal by the receiver of the plaintiff from an order denying his motion to be substituted as plaintiff and to' amend the complaint by setting up his appointment.

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

<p>• Appeal, from" judgment in favor of the defendant, entered upon a verdict. .</p>

<p>Evidence — Burden of proof where new matter constituting a defense or counterclaim is alleged without a denial.</p> <p>Where \ an answer contains neither a general nor specific denial, but sets up new matter alleged to constitute a defense or counterclaim, the plaintiff's cause of action stands admitted, and the defendant has the burden of proving his defense or counterclaim.</p>

<p>Costs — Effect of reversal of judgment with costs to appellant to abide event. “</p> <p>An order of the Common Pleas reversing a City Court judgment and directing a new trial “ with costs to the appellant to abide the event,” includes the costs in the trial court as well as the costs on the appeal, and the respondent, upon prevailing oh the second trial, is not entitled to tax the costs of the first.</p> <p>Starr Cash Car Co. v. Reinhardt, 6 Mise, Rep. 365, followed.</p>

<p>Exceptions ordered heard at the General Term in the first instance after verdict in favor of plaintiffs directed by the court.</p>

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

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

<p>Appeal — Decision on conflicting evidence.</p> <p>The decision of the Special Term of a disputed question of fact, if justified by the proofs, will not be disturbed on appeal.</p>

<p>1. Specific performance — Purchase at auction.</p> <p>Specific performance of a purchase of land at auction will not be decreed where the purchaser bid without knowledge of the fact that the sale was made subject to an unexpired lease, and he purchased for immediate use.</p> <p>2. Same — Use of puffers at sale.</p> <p>The employment of puffers by a vendor at a sale by auction absolves the purchaser from the obligation of his contract of purchase.</p>

<p>"Action to foreclose a chattel mortgage.</p>

<p>1. Municipal corporations — Brooklyn — Theatre licenses — Mayor cannot revoke.</p> <p>The mayor of the city of Brooklyn has no power, under the charter and ordinances, to refuse to grant a license for a theatre or place of public amusement, or to revoke a license already granted.</p> <p>2. Same — Enforcement of ordinance.</p> <p>A violation of a theatre license cannot be punished by revocation of the. license, but by énforcement of the penalities prescribed in the ordinance.</p> <p>3. Same — Arrests.</p> <p>Section 25 of title 11 of the charter of Brooklyn, making it the‘duty of the police to arrest “ with or without warrant ” all persons guilty of violating any law or ordinance, means with warrant where warrant is required by law and without warrant where it is not required, and does not authorize a policeman to arrest without a warrant for a misdemeanor not committed in his presence.</p> <p>4. Same — "Violations of law in theatre.</p> <p>If a prize fight, or any indecency, or anything violating the, criminal law be brought out in a theatre, it is the right of any citizen, and the duty of any policeman present, to arrest every one participating- in the offense.</p>

<p>1. Pleading — Demurrer.</p> <p>An allegation in a complaint that the trustees of a village had no power • to adopt a certain ordinance is one of law, and is not admitted by a demurrer. _ ■ ■</p> <p><3. Bicycles — Permission to use sidewalk.</p> <p>Where the charter of a village "gives to the trustees general supervision of its streets and .sidewalks, they have- power to adopt an ordinance authorizing licenses to ride bicycles on the sidewalks, and the mere granting of such license does not make the village liable- for injuries sustained in consequence of the improper or negligent acts of the licensee, unless after notice that such licensee was, in the- first instance, an improper person or was negligent or careless in the exercise of the privilege granted him, • the trustees neglected or refused to revoke the license or to, take other steps-for the protection of the -public, or the granting of such licenses .creates, a public nuisance. 1</p>

<p>• Action • upon a policy of life insurance.</p>

<p>Application for peremptory writ of mandamus- to compel de- ■ fendant to pay to the school district represented by the relator its. allotted share of the public school moneys. .</p>

Actiow to determine conflicting claims to the personal estate of DeWitt Tuthill, who died in March, 1886, leaving his widow, Raney Tuthill, and his only child, a daughter, Ada 3?.

The action was. to recover $1,377.51, with interest from April 15, 1896, for goods, wares and merchandise, consisting of bicycle sundries, sold and delivered to the defendant corporation, at the special instance and request of the defendants', between January 10 and April 15, 1896, and the complaint set up fraud in contracting the debt, alleging false statements that the Mercantile Supply Company was, at and after.

<p>Appeal from an order of the General Term of the City Court, reversing an order of the Special Term dismissing the complaint for failure to file security for costs.</p>

<p>Appeal by defendants from affirmance by the City Court, Gem eral Term, of a judgment in favor of plaintiff.</p>

Appeal- by’ the plaintiffs from an affirmance by the General Term of the City Ooiirt of an order denying plaintiffs’ motion .to punish the defendant for contempt.

<p>Appeal, by defendant from affirmance by the General' Term of the City Court of a judgment in' favor of plaintiffs. '•</p>

<p>1. Landlord and tenant — Double rent.</p> <p>The statute rendering a tenant liable for double rent where he holds over after giving notice of his intention to quit (2 R. S. [9th ed.] 1819, § 10) applies only to a tenancy where the" term is indefinite and the tenant has the right and seeks by notice to terminate it.</p> <p>3. Same —Continuance of term — Removal prevented by health board.</p> <p>A renewal of a lease by reason of the holding over of a tenant will not be implied where the tenant was prevented from removing by the action of the board of health in quarantining the family and forbidding . such removal, and the tenant in such case is liable, if at all, only for the use and occupation of the premises for the time he actually occupied them.</p> <p>Regan v. Fosdick, 18 Mise. Rep. 556, reversed.</p>

<p>1. Brokers — Commissions.</p> <p>A broker, employed to procure a loan, earns his commission when he produces a competent party as a proposed lender who is ready and willing to make the loan upon terms acceptable to his principal.</p> <p>2. Same — Variance.</p> <p>The complaint, in an action by a broker for commissions for procuring a loan, alleged that plaintiffs had procured a person to make the loan and introduced him to the defendants and said defendants obtained the loan on bond and mortgage. The proof showed that such person was procured and was able and willing to make the loan, but that defendants withdrew from the transaction with such person, on paying him for his expense in searching, they having obtained the loan elsewhere. Held, that the variance was not material, as plaintiffs’ duty was performed when the lender was procured.</p> <p>3. Trial — Defect in proof cured by subsequent evidence.</p> <p>Evidence introduced by either party after denial of a motion to dismiss for insufficiency cures the defect in proof then existing.</p> <p>4. Same — Striking out evidence.</p> <p>A refusal to strike out testimony derived from. books, 'if erroneous, is-harmless where the same facts are proved by competent testimony.</p> <p>Van Orden v. Morris, 18 Mise. Rep. 579, affirmed.</p>

<p>Appeal from affirmance by the General Term of tbe City Court of New York, of a judgment entered upon a verdict in favor of tbe plaintiff.</p> <p>Action for slander.</p>

<p>1. Appeal — Objections.</p> <p>An objection that the question is “ incompetent, immaterial and irrelevant” is insufficient to raise the point that the question “In your opinion is she likely to recover?” put to plaintiff’s attending physician, was not properly limited, and was speculative, conjectural and eliminated the element of reasonable certainty.</p> <p>2. Negligence — Evidence.</p> <p>While it is proper to ask an expert witness who has examined the plaintiff whether the subjective symptoms were feigned or real, it is improper to ask him if he would say that plaintiff was a malingerer, or what qualification he would put on it, and such question is properly disallowed.</p> <p>3. Appeal — Objection not raised below.</p> <p>An exception cannot be sustained on a ground not raised below, nor where the objection did not state the grounds on which it was interposed. ■</p> <p>4. Evidence — Experts.</p> <p>Proof that a witness was a member of - a board of health and its diagnostician of contagious diseases does not necessarily establish his competency as an expert as to personal injuries, and its exclusion is not error.</p> <p>5. Trial — Bequests to charge.</p> <p>A party is not entitled to directly opposite instructions on the same point. ■ '</p> <p>6. Husband and wife — Bight of husband to wife’s earnings.</p> <p>The earnings of a wife, whether at home or abroad, unless acquired in the pursuit of a separate business, or in connection with her separate estate, presumptively belong to her husband.</p> <p>Brown v.' Third Ave. B. B. -Co., 18 Mise. Bep, 584, affirmed.</p>

Action for the recovery of a sum of money alleged to have been obtained from the plaintiffs testatrix by means of fraudulent misrepresentation.

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

<p>Brokers — Commissions.</p> <p>To aúthorize a recovery of broker’s commissions where . the principal sells to or exchanges with a person introduced by the brokers after there has been an apparent failure of the negotiations and abandonment by the brokers, they are bound to prove the terms of the sale or exchange, and that their efforts were the efficient or procuring cause of its going through.</p>

<p>1. Summary proceedings — Defense — Eviction.</p> <p>The deiense of eviction is available in summary proceedings to recover possession of the demised premises for non-payment of rent.</p> <p>2. Landlord and tenant — Eviction.</p> <p>Respondents rented of appellants two offices which communicated by a door with each other and each of which had a door opening into the hallway, one of which offices was used as a private office. Subsequently, to accommodate another tenant, the hallway was partitioned of£ so as to prevent the use of the door from said private office. Held, that this constituted an actual eviction from a part of the demised premises, which suspended the entire rent so long as it continued.</p>

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

. Appeal from a judgment of the justice of the Seventh District Court in favor of the plaintiff for $50 damages, besides costs. The recovery was for the value of a bicycle intrusted to the defendant as a common carrier.

<p>T. Pawnbrokers — Care' of goods.</p> <p>The ordinary obligation of a pawnbroker, or Other pledgee, is to exercise' the degree Of care that an ordinarily prudent man would usually ’ bestow on property of a like nature under similar circumstances, and he is liable to the pledgor for loss or -injury resulting from failure to use such care. • ■ • ’</p> <p>3. Same — Insurance against moths — Usury.</p> <p>Where a pledgee agrees to insure the g.oods against moth or other injury1, he may contract to receive an additional sum in the nature of a premium, for such insurance) and the exaction of such sum in addition to legal interest will not constitute usury. .</p>

<p>Appeal by defendants from judgment of the Tenth District Oourt.</p>

<p>¡Negligence — Admissions.</p> <p>A statement made by a party to whom a bill for damages caused by a collision is presented, that he would give it to his driver to pay, is an admission which will support an inference that the driver who did the damage was in his employ, and that the accident had been reported to him.</p>

<p>Appeal — Return of justice.</p> <p>The time to file the return of the justice on appeal from a final order in summary proceedings to recover possession of premises alleged, to be used as a bawdy-house will not be extended where the appeal is taken only upon technical grounds, it being conceded that the evidence estab- . lishes the charge,' and the only excuse offered is that the attorney, was ehgaged in various courts 'and places, and the want of a male stenographer to transcribe the notes.</p>

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

Action against the contractor and owners for the foreclosure of a lien claimed pursuant to the provisions of the Mechanics’ Lien Law (chapter 342, Laws 1885), for work performed upon the employment of the contractor, the lien having been discharged before suit by the deposit of the amount claimed with the county clerk.

<p>Appeal by the defendant from a judgment of. the justice of the Fourth District Court, in favor of the plaintiff, in an action for goods sold and delivered, the defense being a general denial.</p>

. Motion to confirm decision of commissioners in proceedings to discontinue two highways in the town of Huntington, and cross-motion to vacate and modify such decision.

<p>Action by vendee for breach of contract to convey realty.</p>

<p>Application for certificate of reasonable doubt.</p>

<p>Morion by defendant for a new trial on the minutes.</p>

<p>Demubbeb to return on habeas corpus. . -</p>

Action to compel the cancellation of certain certificates of defendant’s capital stock, and the issue of new certificates to plaintiff in their place, and to recover accrued dividends.

Motion by the mayor, aldermen and commonalty of the city of New York to confirm the final reports of commissioners of estimate. and assessment.

<p>1. Vendor and purchaser — Incumbrances — Debts of ancestor.</p> <p>To entitle a purchaser of real estate to rescind the contract and recover back his deposit on the ground that the land would be subject to the debts of the vendor’s ancestor, if any should be found on the final settle- . ment of his estate, he must show the existence of debts against such estate as well as an insufficiency of personalty.</p> <p>2. Same — Payment of incumbrances at time of closing sufficient.</p> <p>The existence of incumbrances is not a fatal objection to the title where the vendor is willing to allow the amount thereof from the purchase price and they can be satisfied at the time of closing the sale.</p> <p>3. Same — Encroachments.</p> <p>An encroachment of from a quarter to half an inch upon adjoining premises is too trifling to be considered a defect in the title.</p> <p>4. Same — Breach of contract — Dámages.</p> <p>Where the. purchaser of land improperly refuses to complete, the measure of damage is the difference between the price fixed in the contract and the value of the land at the time fixed for delivery of the deed.</p> <p>5. Same — Evidence of value.</p> <p>Proof of the sum for which the land was subsequently sold at private sale without notice to the defaulting purchaser is not sufficient to establish the value of the land.</p>

<p>Action of interpleader and to determine conflicting claims to a policy of life insurance. •</p>

Appeal by plaintiff from an order of the City Court, General Term, affirming the denial by the Special Term of a motion to set aside a taxation of costs.

<p>1. Jurisdiction — City Court of New York — Consolidation qf actions. The rule allowing the consolidation of actions in the City Court-of New-York is subject to sections 315 and 316 of the Code, limiting the. jurisdiction of that court, and, therefore, a consolidation which permits a recovery exceeding $2,000 is improper.</p> <p>2. Same'— Estoppel. .</p> <p>The fact that the consolidation was made on the motion of the defendant does not estop him from raising the objection of want of jurisdiction. Clillin v. Canary,. 18 Mise. Rep. 736, reversed.</p>

Appeal by the defendant Lehman from so much of an order of the General Term of the-City Court, made November 30, 189'6, as affirms an order of the Special Term of the City Court, made April 13, 1896, denying the said defendant’s motion to vacate and set aside the judgment entered in the above action..

Appeal by the defendant from an affirmance by the Oity Court, General Term, of a judgment of the Trial Term, in favor of the plaintiff, entered upon the verdict of a jury. The action was brought against the defendant as surety for one Thomas E. Flannery, for rent under a lease of the premises Ros. 702 and 704 Washington street. The rent claimed was a balance of $100, due for August, 1895, and $400, due for September, 1895.

Appeal by defendant Oppenheim from an affirmance - by the General Term of the City Court of a judgment for plaintiff, entered upon the verdict of a jury. The action was for the recovery of certain cloth alleged to be- the property of the plaintiff, and to be in the possessiomof the sheriff,, and to be claimed by the defendant Oppenheim; and to be wrongfully detained from the plaintiff by both defendants.

<p>1. Mechanic’s lien — Parties to foreclosure where bond has been given.</p> <p>Where a bond to discharge the lien has been given an action of foreclosure may be maintained against the contractor and the sureties on the bond. ■</p> <p>2. Same — Pleading.</p> <p>An allegation in the complaint in an action to foreclose a mechanic’s lien, that a bond with sureties to discharge the lien had been given and approved, is sufficient without alleging the name of the obligee in the bond, as it will be assumed that it was- properly made to the county clerk. ' ■ .</p> <p>3. Same — Leave to sue.</p> <p>No assignment of the bond by the county clerk nor leave to sue is necessary, as the sureties are to be proceeded against only in an action for the foreclosure of the lien.</p> <p>Reilly v. Poerschke, 18 Mise. Rep. 750, affirmed.</p>

Appeal by the plaintiff from an order made at General Term of the City O.ourt of New York, which affirmed an' order vacating and setting aside the- service of the: summons and execution of an order to arrest the defendant,, obtained in this, action.

Appeal by the defendant from a judgment of the justice of the First District Court in favor of the plaintiff for $250 damages, besides costs, in an action to recover damages for the alleged wrongful discharge of an employee.

Appeal by the plaintiff from a judgment in favor of defendant, rendered in the-Fourth District Court. The action was for work, labor and Services rendered by the plaintiff as a plumber upon certain buildings of which the defendant claimed to be agent. The work was ordered by the defendant, and the amount was $42.60.

<p>. Appeal by plaintiff against a judgment of the justice of the Fourth District Court in favor of the defendant Barton.</p>

Appeals in two actions by the defendants from judgments of the justice of the Eighth District Court in favor of the plaintiffs.

Appeal by the defendant from judgments of the Seventh District Court, in favor of the plaintiff in actions for work, labor and services.

<p>Appeal from judgment rendered by the justice of the Ninth Judicial District Court, in favor of the defendant.</p> <p>Action to recover a penalty under the “Agricultural Law/’ chapter 388, Laws of 1893.</p>

<p>1. Appeal — Question not raised below.</p> <p>An exception cannot be sustained on appeal jipon a ground not taken in the court below.</p> <p>2. Trial — Substituted issues — Charge.</p> <p>An objection to the submission to the jury of the question as to what was the contract between the parties, made on the ground that the contract as alleged in the complaint was admitted by the answer, is untenable where evidence as to a contract differing therefrom in some of its terms was admitted without objection and no motion made to ■ strike it out or disregard it.</p>

<p>1. Bailment — Negligence.</p> <p>Failure of a bailee to redeliver the article at the termination of the period of bailment raises a presumption of negligence,</p> <p>3. Same Failure to fully prepay' postage.</p> <p>Defendant undertook to forward á model belonging to plaintiff to its factory for an estimate as to the cost of manufacture, and sent the same by mail, but it never reached the factory, 'The .evidence tended to Show that th.e package was not weighed, but that defendant’s servant » put “ stamps on it which he thought were sufficient .to carry it through.” Held; insufficient to show the exercise of due. care and rebut the presumption of negligence from nondelivery.</p> <p>3. Conversion — Proof of value.</p> <p>Where the article lost or converted had no market value, the price paid therefor is some evidence of its actual value.</p>

<p>Agency — Election of remedies.</p> <p>Where a party who has contracted with an agent without notice of his agency prosecutes his claim to judgment against such agent after the principal has been disclosed, he thereby elects, to look to the agent alone and cannot thereafter pursue the principal.</p>

<p>1. Master and servant — Liability for person employed by servant to assist in work. • 1</p> <p>A master is liable for the negligence of an individual whom his servant has procured to aid him in performing his duty, where such negligence occurred in the course of the work.</p> <p>2. ¡Negligence — Damages — Injuries to carriage.</p> <p>In an action for injuries to a private -carriage, the plaintiff is entitled: to recover his actual, reasonable outlay for carriage hire during the timé required for repairs to -his own vehicle.</p>

<p>Appeal by defendant from judgment of the Fifth District Court. • ,</p>

<p>Vendor and purchaser — Statute of frauds.</p> <p>A defense of want of consideration, on the ground of invalidity of the contract under the Statute of Frauds, in an action upon a check given by the purchaser as ,an advance payment on an oral agreement for the sale of lands, is not made out where the vendor is prepared to perform, as his ability and willingness to perform furnish a consideration for the purchaser's promise to pay.</p>

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

<p>1. Corporations — Incorporation — Pleading.</p> <p>The corporate existence of a plaintiff is not put in issue by a mere allegation in an answer that “ defendant has no knowledge or information sufficient to form a belief ” as to the allegations of the complaint in respect thereto; to raise such an issue there must be affirmative allegations that plaintiff is not a corporation.</p> <p>2. Collection agencies — Power to employ attorneys.</p> <p>A collection agency has power, incidental to ■ its business, to employ lawyers to conduct suits- upon claims placed with it for. collection', and may recover from its client for the" services of a lawyer so employed.</p>

<p>Appeal front judgment of the ¡Ninth Judicial District Court, rendered in favor of the plaintiff.</p>

This is a return of an order to show cause why an order heretofore granted for the examination of David Y. Leslie, a third person, should not be vacated upon the ground, with others, that the affidavit upon which the order was obtained is defective.

<p>Application for a peremptory writ of mandamus.</p>

Tbial of an indictment for perjury. Motion by the defendant that the court advise his acquittal on the ground, among others, that the oath was not personally administered by the justice but by the clerk of the part of the court where the trial of the action was had' in which the alleged testimony was given, although in the presence and under the direction of the justice.

<p>Habeas corpus — Security for costs cannot be required.</p> <p>Security for costs cannot be required of a nonresident relator in habeas corpus proceedings.</p>

<p>1. Partnership — Liability of continuing partner.</p> <p>Where the continuing partner upon a dissolution assumes the debts of the firm and receives its assets, he becomes in equity the principal debtor and the retiring partner is only a surety.</p> <p>2. Set-off — Pirin debt.</p> <p>A debt due from a firm which was assumed by the continuing partner upon dissolution may be set off against an individual claim in favor of such continuing partner.</p>

Motion by defendant to vacate a judgment taken by plaintiff against it as upon a default-upon a note for $5,000 made by th© defendant, with interest and costs.

Motion to compel certain persons to restore and1 return to the committee of an alleged incompetent person certain property which, had been transferred to them.

<p>Appeal Horn judgment in Municipal Court for thirty, dollars and thirty-two cents damages and costs.</p>

. The petitioner Brown is confined in the Onondaga county penitentiary under a purported judgment and sentence of and in the Court of Special Sessions,, county, and village of Cortland, based upon a plea of guilty to the charge of petit larceny.

, as provided .by section 3, chapter 715, Laws of 1892, which provides that “It shall be. the duty of each hoard of supervisors * * * at their annual meeting or at any special meeting called for the purpose, to appoint the printers for publishing the laws in their respective counties.

This action is brought by plaintiff to recover certain moneys heretofore paid by him to defendant upon a certain certificate issued by it to him under certain provisions of its articles of association permitting shareholders in certain cases to withdraw unpledged installment shares.

<p>Action to enforce a restrictive covenant in a deed. ■</p>

<p>Motion by defendant-appellant to open default.</p>

<p>Appeal from a judgment iñ favor of plaintiff entered upon a verdict.</p>

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

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

<p>Appeal from order denying motion to vacate attachment.</p>

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

<p>Appeals from order in supplementary proceedings ’ adjudging the- judgment debtor guilty of contempt,</p>

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

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

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

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

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

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

<p>- -Appeal by defendant from judgment on verdict in favor of plaintiff, and from order denying new trial.</p>

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