Volume 19 — New York Supplement

Application by Jacob Leicht to compel the board of excise to issue a license to the applicant for the sale of intoxicating liquors.

<p>Parol Evidence—Agreement to “Account. ”</p> <p>Parol evidence is admissible to show that at the time of a written agreement by defendant to account for a claim assigned to him by plaintiff, to be used as a counterclaim against one G., it was agreed that defendant should be allowed all costs and disbursements in defending the action brought against him by G.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Mary B. De Frece, as administratrix of the estate of Benjamin T)e Frece, deceased, against the National Life Insurance Company, on policies of life insurance. From a judgment entered on a verdict directed for plaintiff, defendant appeals.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Petition by Adelia F. Philp to probate an instrument as the last will and testament of James Philp, deceased- From a decree denying the probate, proponent appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Samuel G. Metcalf, as receiver of the property of Jose F. Navarro, a judgment debtor, against Jose A. Del Valle, impleaded with Josiah A.. Hyland and Jose F. Navarro, to set aside a conveyance from Navarro to Hyland. From a judgment sustaining a demurrer of Del Valle to the amended, complaint, plaintiff appeals.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Judicial settlement of the account of Henry A. Y. Post, as administrator of Edwin Post, deceased, which latter in his lifetime was administrator with the will annexed of Cornelia Post. From an order .of the surrogate referring the matter back to a referee who had previously been appointed to examine the administrator’s account and the objections thereto, and to determine all questions arising upon the settlement of said account which the surrogate has power to determine, Henry A. Y. Post, administrator, appeals.</p> <p>For decision appealed from, see 9 H. Y. Supp. 449. For decision on appeal from the order of the surrogate resettling and amending the order sending the report back to the referee to proceed with the accounting, see 14 H. Y. Supp. 205. For decision on appeal from order denying a motion to allow Jane Eliza Davis, as administratrix with the will annexed of Cornelia Post, deceased, to file nunc pro tune her requests to find, and the rulings of the referee thereon, see 18 H. Y. Supp. 812.</p>

Ejectment by George Dyett against Central Trust Company, trustee under the will of John W. Southack, deceased, and others, to recover possession of one undivided twenty-fourth part of a lot and building. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Melvin Stephens against Robert Lewis Humphryes, impleaded, etc., to foreclose a mortgage. From an order setting aside, on defendant’s motion, a sale under an order of foreclosure and sale, but imposing the condition that defendant pay certain costs, defendant appeals.</p>

<p>Contracts—Failure to Perform—Misrepresentations—Evidence.</p> <p>Plaintiff contracted to sell defendant certain steamers, warehouses, etc., in Nicaragua, and also a certain concession by Nicaragua for the exclusive navigation of the San Juan river and Lake Nicaragua. Defendant deposited a sum with a bank, under the agreement that it should be paid to plaintiff as liquidated damages if defendant failed to carry out the agreement. Defendant refused to complete the purchase on the ground ttiat plaintiff had misrepresented the value of the property, and plaintiff sued to obtain the deposit. The evidence was conflicting as to the representations, and as to the real value, and as to when and why defendant refused to carry out the agreement; but there was much to throw discredit on defendant’s evidence, and some evidence that he did not refuse to complete the purchase until he had failed to form a corporation, and sell its stock, and obtain certain contracts. Held, that a judgment for plaintiff should not be disturbed.</p>

Action by Luther Kountze against William W. Flannagan, to recover damages for breach of contract. Prom a judgment sustaining a demurrer to the complaint, plaintiff appeals.

Proceeding by John Collins, the legal representative of Maria Louisa Collins, deceased, to be substituted as plaintiff in an action entitled “The People of the State of New York, on the relation of Maria Louisa Collins, Trustee, ” etc., “against Charles Donohue and Garrett W. Ryckman, Jr.” From an order of the court continuing such action in the name of John Collins, successor to Maria L. Collins, deceased, the defendants therein appeal.

Action by Charles A. Johnson against Isaac Bernheimer and Simon Bernheimer for commission as a real-estate broker. From a judgment for plaintiff, and an order denying a motion to set aside the verdict and for a new trial, defendants appeal.

Action by George II. Beattys against the town of Solon on coupons representing interest payable on bonds issued by defendant in aid of the construction of the Utica, Chenango & Cortland Railroad Company to recover damages with compound interest for refusal to pay the same. From a judgment entered for plaintiff on a decision of the circuit court, a jury having been waived, defendant appeals.

Action by Charles H. Stanton against the town of Taylor on coupons representing interest payable on bonds issued by defendant in aid of the construction of the Utica, Chenango & Cortland Railroad Company to recover damages, with compound interest, for refusal to pay the same. From a judgment entered for plaintiff on a decision of the court, a jury having been waived, defendant appeals.

Action by William W. Armfield against the town of Solon on coupons representing interest payable on bonds issued by defendant in aid of the construction of the Utica, Chenango & Cortland Bailroad Company, to recover damages, with compound interest, for refusal to pay the same. From a judgment entered for plaintiff on a decision of the circuit court, a jury having been waived, defendant appeals.

<p>Appeal from circuit court, Cortland county.</p> <p>Action by William H. Chapman against the town of Taylor on coupons representing interest payable on bonds issued by defendant in aid of the construction of the Utica, Chenango & Cortland Railroad Company, to recover damages, with compound interest for refusal to pay the same. From a judgment entered for plaintiff on a decision of the circuit court, a jury having been waived, defendant appeals.</p>

Action by the Attleboro National Bank against Jacob Wendell and others. Judgment for defendants. From an order denying a motion to require plaintiff’s attorney to disclose what bank, if any, is the real plaintiff, and where it is located and does business, or, if there be no such bank, why said attorney should not himself satisfy the judgment for costs, defendants appeal.

Two actions by Henry W. Dayton against the McEiwee Manufacturing Company. From orders denying motions to vacate attachment issued against defendant’s property, the Northern National Bank of Big llapids, Mich., and La Flora S. Baker, subsequent attaching creditors, appeal.

Action by Victor S. Flechter against Gilbert E. Jones, as treasurer of the New York Times, a joint-stock association, to recover damages for defamation of character. From a judgment sustaining a demurrer to the second defense in the amended answer, defendant appeals.

<p>Attachment—Motion to Vacate—When Granted.</p> <p>A motion to vacate an attachment will be denied where, in answer to the moving affidavits, showing that the goods were sold on a credit that had not expired at the time of bringing suit, plaintiff offers affidavits charging and tending to prove fraud in the original sale.</p>

<p>Elevated Railroads—Injuries to Abutters—Opinion Evidence.</p> <p>In an action against an elevated railroad for damages to abutting property ¡6 was error to allow a real-estate expert to give his opinion as to what plaintiff’s property would be worth if the railroad were away; such testimony being hypothetical, speculative, and incompetent.</p>

Action by Herman Wronkow against Hobart Oakley and others to foreclose a mortgage. A foreclosure having been ordered and a sale made,. Charles Wolff, the purchaser thereat, filed a petition asking to be relieved from the purchase. The relief was denied, and petitioner appeals.

Certiorari by James F. McNeary to review the action of Charles F. Mac-Lean and others, as police commissioners, etc., in dismissing relator from his office of patrolman. Respondents moved to dismiss the writ on the ground that it was not obtained within the statutory period of four months, as required by Code Civil Froc. § 2125.

<p>1. Accommodation Note—Transfer—Bona Fide Holder.</p> <p>Where, as the consideration for the transfer before maturity of an accommodation note, the transferee pays a debt due by the payee to a third person, and cred its the balance on a debt of the payee to himself, he is a bona fide holder, to the extent of the amount paid such third person, and may recover that amount from the maker.</p> <p>3. Same.</p> <p>Where the transferee of an accommodation note takes the same under an agreement that he will hold it, and credit the amount, if paid on the payee’s debt, to him, but afterwards, and before maturity of the note, makes another agreement with the payee, under which he pays a debt due by the payee to a third person, he is a bona fide holder of the note to the amount so paid, notwithstanding the first agreement.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Michael H. Haffey against Sarah Lynch for the specific performance of a contract to sell land. From a judgment for plaintiff, defendant appeals.</p>

Action by Paul Williams against William Hays. From a judgment entered on a verdict directed for defendant, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by the Universal Fashion Company against John Skinner to recover the price of certain articles furnished defendant under a contract. From a judgment overruling a demurrer to defendant’s answer, and dismissing the complaint, plaintiff appeals.</p>

<p>Trade-Marks—Color and Shape of Package—Infringement—Injunction.</p> <p>Where a dealer in merchandise adopts a certain color and shape of wrapper therefor to designate the article, a rival dealer in a similar article will be enjoined from using a wrapper afterwards adopted by him, which is of the same size, shape, and color, and contains thereon a similar grouping of symbols, so as to readily mislead purchasers into believing that the article is that put up and sold by the first dealer, though on an inspection the symbols and words printed on the wrapper may appear different.</p>

Exceptions from circuit court, Mew York county. Action by the mayor, aldermen, and commonalty of the city of Mew York against the Mew York So Harlem Railroad Company to recover the cost of paving a street between and adjoining defendant’s tracks. A verdict was-directed for defendant, and plaintiff moved for a new trial on exceptions ordered to be heard at the general term in the first instance.

<p>Appeal from special term, New York county.</p> <p>Action by George F. Perkins and others against Collis P. Huntington. From a judgment dismissing the complaint, plaintiffs appeal.</p>

Action by Tillie Feldman, individually, and Frank Joseph Anton Feldman, an infant, by said Tillie Feldman, his guardian ad litem, against the Grand Lodge of the Ancient Order of United Workmen of the State of New York, to recover on certain benefit certificates. From an order made on defendant’s motion interpleading Babette A. Dobler and others, and discharging defendant on payment into court of the amount claimed, plaintiffs appeal.

Action by Emil Bruswitz against the Netherlands American Steam Navigation Company for personal injuries. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term, Queens county.</p> <p>Certiorari on the relation of William P. Douglas to review the action of Joseph Dykes and "others, assessors of the town of Flushing. From a judgment reversing their decision defendants appeal.</p>

Appeal froto surrogate’s court, New York county. Application by Marie Jeannette Plumb to compel the final judicial settlement of the accounts of James Neale Plumb, as the guardian of her person and estate. From an order granting a commission to take the deposition of witnesses out of the state the guardian appeals.

Action by the Western National Bank of the City of New York against Frederick Wood, impleaded with Edward B. Teller, on a note. From a judgment entered on a verdict for defendants, and from an order denying a motion for a new trial, plaintiff appeals.

Exceptions from circuit court, New York county. Action by Mary E. Connor, as administratrix of Addison Connor, deceased, against the mayor, aldermen, and commonalty of the city of New York. A verdict having been found in favor of defendants, plaintiff moved for a new trial on exceptions, and the exceptions were ordered to be heard at the general term in the first instance.

Action by Joseph Slevin against Margaret 0. Wallace, individually and as executrix of Francis B. Wallace, deceased, and others. From a judgment for plaintiff, defendants appeal.

Action by the Manhattan Life Insurance Company against the Forty-Sec- and Street & Grand Street Ferry Railroad Company to recover money loaned to one Eben S. Allen. From a judgment dismissing the complaint plaintiff appeals.

J. Henry Halloek presented a claim to Etta B. Bacon and Alice A. Salisbury, executrices under the will of Emma B. Sharer, deceased, which was rejected by said executrices, and a reference was had under the statute. The referee reported in favor of plaintiff, and a motion to confirm the same and for judgment thereon was thereafter granted.

Action by Martha B. Seymour against the Spring Forest Cemetery Association and others. A reference was had by stipulation of the parties, and there was an order settling the form of an interlocutory judgment, from which order and a judgment for plaintiff, defendants appeal, and move for a new trial. In March, 1890, upon a stipulation, an order was entered referring the issues to Hon. F. R. Gilbert, to hear and determine.

J. Henry Hallock presented a claim to Etta D. Bacon and Alice A. Salisbury, executrices under the will of Emma B. Sharer, deceased, which was rejected by said executrices, and a reference was had under the statute. From a judgment for plaintiff on the report of the referee, and an order of the special'term confirming the report of the referee, and denying a motion made by defendants on a case, and exceptions for a new trial, defendants appeal.

Action by William Austin against James M. Rappleye. From a judgment restraining further proceedings to foreclose a mortgage by advertisement given by plaintiff, and requiring defendant to execute, at the request of plaintiff, a satisfaction piece of said mortgage, defendant appeals.

Action by Lucius Gleason against Fannie M. Hamilton. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Action to foreclose a mortgage bearing date January 13, 1885, on property on James street, Syracuse, described in the complaint, executed by the defendant; acknowledged before John C. Keeffe, notary public, whose certificate of acknowledgment bears date 13th of January, 1885. The mortgage was recorded March 23, 1885.

Action by Annie B. Winkler, an infant, by Alois Winkler, her guardian, against I. Belle Schlager. From a judgment for $63.20 damages, and $94.90 costs, entered in favor of plaintiff on the report of a referee, defendant appeals.

Elmer J. Bosworth was indicted and tried for burglary in the third degree, and appeals from a judgment of conviction, from an order denying a motion made in behalf of defendant in arrest of judgment, from an order denying a motion made in behalf of defendant for a new trial on a case and exceptions, made and settled on the ground that the verdict was contrary to law and against the evidence, and on the exceptions taken at the trial, and from a judgment that defendant was…

Action by Winslow Robinson and another against J. Rockwell Fay, Charles G-. West, William H. Gedney, and others to recover on a contract made with the Hoboken Turtle Club, and to charge defendants, as trustees, with the statutory liability for such debt. From a judgment for plaintiffs, and an order denying a motion for a new trial, defendants West and Gedney appeal.

<p>Appeal from Bichmond county court.</p> <p>Action by Mark Hartley, as assignee of Charles M. Pine and Charles T. Pine, against Cataract Steam Engine Company Ho. 2, for goods, wares, and merchandise. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from circuit court, Orange county.</p> <p>Action by Edward Millott against the New York & New England Railroad - Company, for personal injuries. Judgment for plaintiff. Defendant appeals.</p>

Action by John J. Campbell against William Ernest on a judgment. From an order enjoining defendant from disposing of his property pending the action defendant appeals.

<p>Appeal from judgment on report of a referee.</p> <p>Action by Henry Spruclc against Hugh McRoberts and others to foreclose a mechanic’s lien. From a judgment for plaintiff, defendant McRoberts appeals.</p>

<p>1. Railroad Companies—Injuries to Person on Track—Evidence.</p> <p>Plaintiff’s testator, while walking with his wife and child along defendant’s single-track dummy line at night, signaled a west-bound train approaching from the rear to stop, which it did not do at once, but ran out on a siding near to allow an east-bound train to pass. The wife and child crossed the main track at right angles, and reached the train on the siding in safety, but decedent walked diagonally along the main track, and was struck by the east-bound train and killed. Deceased could have seen the train, which was furnished with a headlight* if he had looked. Held, that he was guilty of contributory negligence, and could not recover.</p> <p>2. Same—Sounding Bell or Whistle.</p> <p>There was no obligation on defendant to sound a whistle or bell at the siding, the same being at neither a station nor road crossing.</p>

Application by Matthias B. Valentine to fill a vacancy in the board of health of the village of New Rochelle. The application was denied, and the applicant appeals.

Action by Christian F. G. Meyers and others against Frances E. Herbert. From an order denying a motion to punish defendant for contempt in supplementary proceedings, plaintiffs appeal.

Action by Thomas J. Macvey against the Metropolitan Elevated Railway Company for stenographer’s fees. Judgment for plaintiff, and order denying motion to set aside verdict for a new trial. Defendant appeals.

Action by Walter J. Donohue, as receiver of Alexander Joyce, against Alexander Joyce, Alexander Joyce, Jr., and George W. Horton, to set aside a conveyance of real estate by Alexander Joyce to Alexander Joyce, Jr., as fraudulent. Judgment for plaintiff. The defendants Joyce appeal.

Thomas F. Farrell, surety for defendant, appeals from an order denying a motion to remit a forfeiture of bail for want of power of the court, and' because of the entry of judgment upon the bail bond.

Action by Joseph Husson against Jacob Oppenheimer and another to recover moneys retained by defendant upon a sale of real estate to indemnify him for apparent sales of the property for water rates. From an order denying a motion to compel plaintiff to furnish a bill of particulars, defendants appeal.

<p>Appeal from circuit court, Westchester county.</p> <p>Action by David H. Hunt against John D. Griffen. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Negotiable Instruments—Official Signature—Individual Liability.</p> <p>A note was executed in the following form: “Three months after date, we promise to pay to the order of C. & C. Ice Co. $5,000 at M. Bank. Value received. [Signed] E. H. Close, Treas. John Clark, Pres’t. ” The words, “Ridgewood Ice Company, ” were printed across the end of the note. Held, that the note was the personal and-individual obligation of the makers.</p> <p>2. Same—Notice—Admissions of President.</p> <p>In an action- on such note by the holder, the M. Bank, the court properly excluded evidence of a conversation with the president of that bank, in which he admitted that the bank knew at the time it discounted the note that it was the obligation of the company, and not of the president and treasurer; it not appearing that knowl- • edge of such notice was acquired by him in his official capacity.</p>

<p>Appeal from Orange county court.</p> <p>Action by James Eobertson against Mrs. Smith Caskey. From a judgment for defendant, plaintiff appeals.</p>

Action by Katharine 0. Ferris against Cleveland D. Fisher and others for the partition or sale of real estate. From an order denying a motion to open a default, defendants appeal.

Action by the Long Island Railroad Company against Joseph Silverstone, Long Island City, and Patrick J. Harrigan, as commissioner of public works for Long Island City, to enjoin defendants from removing fences along the line of plaintiff’s road, where they cross city highways. From an order denying a motion for an injunction order, and dismissing a preliminary injunction theretofore granted, plaintiff appeals.

Petition by John Y. McKane and others for a writ of mandamus against John L. Voorhies, commissioner of investments, etc. The writ was denied, and petitioners appeal. Argued before Barnard, P. J., and Dyicman and Pratt, JJ.

<p>Agency—Revocation by Death of Principal.</p> <p>Upon the death of a principal for whom an agent has executed a lease, and collected rents from the lessee, the agency ceases, and payments thereafter made by the lessee to the agent are unauthorized, and no defense to an action for the rent by the heirs of the deceased principal. Weber v. Bridgman, 21 N. E. Rep. 985, 113 N. Y. 600, followed.</p>

Application of John E. Corwin for a writ of certiorari directed to C. 0. V. Ketcliam, 0. K. Gordon, and J. J. Duryea, assessors of the city of Middle-town, and Frank Harding, clerk of said city, requiring them to review their action as tax assessors, etc. From an order granting a reference to take proof as to the assessment of relator’s property, the said Ketcliam and the others appeal.

Action by Cornelius A. Van Wagener against William B. Royce and others, administrators with the will annexed of Henry R. Low, deceased, on an agreement for the payment of certain moneys. From a judgment for plaintiff, and an order confirming the referee’s report, defendants appeal.

Action by John L. Brewster against William Lewis Boyle and Camille Weidenfeld to enforce a contract for the purchase of certain mortgages. There was judgment for plaintiff by default, and from an order denying their motion to open the default defendants appeal.

Action by James H. Ferguson and Michael j. Creegan against George H. Gill. From a judgment entered after trial for plaintiffs, and from an order denying a motion for a new trial, defendant appeals.

Action by Charles S. Holmes against William B. Davenport, administrator with will annexed of Arthur G. Gilman, deceased, and Bessie L. Gilman, decedent’s widow, Stephen H. Olin as trustee, and the Union Trust Company of New York. From so much of the judgment as is in favor of plaintiff, defendant Bessie L. Gilman appeals.

Action by Charles Gotthelf against James S. T. Stranahan to compel specific performance of a contract for the sale of lands. From a judgment for plaintiff, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by William J. Doran against the Brooklyn & New York Ferry Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Actions by Philip Engelhardt and others and by Frank L. Schafer, respectively, against the city of Brooklyn to recover the amount of an award made-to the owner of certain land taken lor the widening of Forth Second street in the city of Brooklyn. Judgment for plaintiffs Engelhardt on award and interest less deduction, and for defendant on claim for taxes. Judgment for defendant in the action by Schafer.</p>

<p>Appeal from trial term.</p> <p>Action by Philip D. Armour and others against Fred. Kirchoff. From a judgment for plaintiffs, defendant appeals.</p>

Actions by the Globe Yarn Mills against William H. Bilbrough and others, (three cases.) From an order denying a motion to vacate a warrant of attachment, defendants appeal.

<p>1. Deceit—False Representations—Pleading.</p> <p>In an action to recover damages for false representations as to the solvency of a firm to which plaintiff sold goods on a written order taken by a traveling salesman, a denial of “each and every allegation in said complaint contained, not heretofore specifically denied or admitted, ” was sufficient to-put plaintiff to proof of the sale and delivery of the goods.</p> <p>2. Same—Evidence—Original Entries—Hearsay.</p> <p>The court erred in allowing plaintiff’s “credit man” to testify to a sale and delivery of the goods from information gained from the “reference book” of plaintiff’s concern, from the written order of the salesman, and from entries in plaintiff’s ledger, which was not a book of original entries, and was not kept by the witness</p> <p>8. Same—Scienter,</p> <p>The court also erred in refusing to submit to the jury the question of scienter and fraudulent intent on the part of defendant, and in instructing them that they were simply to determine whether defendant was guilty of making the false representations charged.</p>

<p>Appeal from special term.</p> <p>Action by Philip Markey against Charles Herbert Diamond. From an order denying a motion to vacate an order of arrest, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by John Carling against William Purcell. From a judgment for defendant, plaintiff appeals.</p>

<p>Statute of Frauds—Contracts not to be Performed within a Year.</p> <p>A contract by an actress to render services, entered into in June, 1888, and to continue so long as the success of the play continues, the season of the play having terminated within a year, was not within the statute of frauds.</p>

Two actions, one by Edward Duffy against John Dawson, and the other by Cornelius H. Evans and others against the same defendant. Plaintiff Duffy appeals from an order denying his motion for an order directing the sheriff of the city of New York to pay over to him a certain fund in the hands of one Henry C. L. Peetsch, belonging to' defendant, Dawson, an exe-' cution debtor of plaintiffs in both actions, and claimed by plaintiffs Evans and others under a senior execution.

Action by Edward B. Kinsella against the Second Avenue Railroad Company to recover damages for personal injuries caused' by a collision of plaintiff with one of defendant’s horse cars. An order for the examination of plaintiff before .trial merely provided that plaintiff “be examined and his deposition be taken pursuant to section 873 of the Code of Civil Procedure, ” etc.

Action by Henry Wehle, receiver of the property of Herman Koch against John V. Koch, surviving executor of John C.*Koch, deceased, to subject a legacy in the hands of defendant to the satisfaction of a judgment against the legatee, Herman Koch. Plaintiff demurred to the answer in so far as to set up a legal incapacity of the receiver to sue because of the omission of authority to sue in the appointing order. From an order sustaining this demurrer defendant appeals. Reversed.

<p>Action by the Holmes & Griggs Man ufaeturing Company against C. Livingston Morse. A judgment for plaintiff was reversed. Plaintiff moves to retax costs:</p>

Ejectment by Margaret Clark against Abraham Davis and others to recover a strip of land 18 inches wide on the northerly side of 112th street, in New York city. Trial by the court without a jury. Judgment for plaintiff.

<p>Claims against Decedents—Board and Maintenance—Evidence.</p> <p>Deceased lived in her own house, and was supplied by claimant with cooked food five days in the week, and occasionally with small quantities of coal. Claimant also paid a very small sum to a nurse for the care of deceased in her last illness. Deceased had declared that claimant was her best friend, that she intended he should have her bank deposit, and that she owed him money. Held insufficient to support an allowance to claimant of $10 a week for the care and maintenance of deceased.</p>

New York county. Action by James Wall against the Emigrant Industrial Savings Bank to recover a deposit paid out by defendant to the wrong person on presentation of the pass book. From a judgment in favor of defendant, entered on a verdict rendered under the direction of the court, plaintiff appeals.

Action by Addison J. Lyon against Van Y. Morgan and others for partition. From a judgment entered on a decision of the special term dismissing the complaint on the merits, plaintiff appeals.

<p>Township Elections—Power of Inspectors to Recount Ballots.</p> <p>The ballot reform law having omitted to provide for the disposition of used ballots, Laws 1843, c. 130, tit. 4, § 14, providing that such ballots shall be destroyed, remains in force; therefore the court cannot compel the town clerk to return ballots to the inspectors of election for a recount, though fraud or mistake is manifest.</p>

Action on a contract by Samuel P. Ferree against James G. Wilson. From a judgment of the general term of the city court, reversing a judgment for plaintiff entered on the verdict of a jury, and reversing the order denying defendant’s motion for a new trial, and ordering a new trial, plaintiff appeals.

Action by Samuel Malcolm and another against Dore Lyon to recover for ■work and labor performed, and materials furnished. Plaintiffs had judgment on report of the referee, and defendant appeals.

Action by Cyrus Clark against Proctor H. Andrews and another to set aside an assignment for the benefit of creditors. From a judgment for defendants, plaintiff appeals.

<p>Appeal from trial term.</p> <p>Action by Gustav Muller against Hermann Schumann and others. From a judgment dismissing the complaint at the trial term. Plaintiff appeals.</p>

Action by ltose Heyman and another against Sigmund A. Schmidt. From a judgment entered on a verdict directed for plaintiffs, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Isaac Feinberg against Lorenz Weiher. Judgment for plaintiff. Defendant appeals.</p>

Action by Walter F. Pyne against the Broadway & Seventh Avenue Railroad company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>1.. Statute of Frauds—Pleading.</p> <p>The statute of frauds must be pleaded in order to be relied on as a defense, unless the complaint shows that the case is within the statute. Wells v. Monihan, 29 N. E. Rep. 232,129 N. Y. 161, followed.</p> <p>2. Damages—Breach of Contract for Board.</p> <p>Where a person who has agreed to board with another for a certain time leaves "before the expiration of the time, damages are recoverable, not for the entire contract price, but for the profits which would have accrued, over and above the cost of the board, during the time when other boarders could not have been obtained to take his place.</p> <p>8. Same—Surrender of Premises.</p> <p>The fact that the occupant surrendered the premises to the landlord after the boarder left did not prevent a recovery on the ground that the ability to perform was thus put out of her power, but is to be regarded merely as a reduction of the claim against the boarder by the amount of rent saved in the surrender.</p>

<p>Action by Emil Mattes against John G. Pause and another for personal injuries through defendants’ negligence, and on defendants’ application removed to the New York court of common pleas. Judgment for plaintiff for a sum less than $50 and defendants’ costs were taxed. Plaintiff now moves for a retaxation of same.</p>

Action by Edward Myers against the Metropolitan Elevated Bail way Company and others to recover past damages sustained by reason of the erection, maintenance, and operation of defendants’ elevated railroad in front of plaintiff’s premises, No. 201 South Fifth avenue, in the city of New York. From a judgment for plaintiff, entered upon the verdict of a jury, defendants appeal. Affirmed. Argued before Boqkstaver and Bischoff, JJ.

Action by Martin Mahon and Edward Coyne against William H. Liscomb, Eliza Jane Armour, John F. B. Smyth, and Alfred A. Liscomb, to recover a deposit made at the time of purchasing land, and for damages for breach of contract of sale, and false representations. From an interlocutory order overruling his demurrer, Alfred A. Liscomb appeals.

Action by Cyrus Scofield against Cecilia Valentini and Carrie E. Harris to recover possession of chattels. From an interlocutory judgment sustaining the demurrer of defendant Valentini, plaintiff appeals.

Action by Jane Bennett against Jacob Levi, aá lessor, impleaded with Francis Picker, as lessee, of a liquor saloon, under the civil damage act, to recover damages for injury in her means of support, occasioned by the habitual intoxication of her husband. From a judgment entered on a verdict against both defendants, and from an order denying a new trial, defendant Levi appeals.

<p>1. Sale—Conspiracy to Defraud Buyer—Evidence.</p> <p>A finding that a seller did not enter into a conspiracy with an employe of the-buyer to defraud the latter by falsely representing the value of the goods was warranted when the buyer testified that he relied altogether upon the judgment of his employe, and there was nothing to show any connection between the seller and the employe, except that the latter had been in the service of the former, which the-buyer knew.</p> <p>2. Amendment of Answer—Same Defense.</p> <p>The buyer having merely alleged such conspiracy between Ms employe and the-seller, and that the seller knew that he was defrauding him and charging'twice as-much for the goods as they were worth, upon the introduction of evidence tending to show false representations made by the seller’s employe, there was no error in denying a motion to conform the answer to the proof, “to have it clearly shown upon the record ” that the goods were not worth the sum charged, but only a sum not exceeding a named amount, as no additional defense was thereby proposed.</p> <p>8. Review on Appeal—Case containing Only Portions of Evidence.</p> <p>A finding that a claim on which an action is brought by an assignee for the benefit of creditors passed to him under the assignment will not be disturbed on appeal when the case does not contain the assignment in full, and there is only a. certificate that the case contains all the testimony.</p>

Action by Mary A. St. John against Henry A. Potter to recover for services rendered and materials furnished. Prom a judgment of the general term of the city court, affirming a judgment for plaintiff on the report of a referee, defendant appeals.

Action to recover moneys by George E. Horne, as trustee, etc., against Arthur Terry. From an alleged judgment of the general term of the city court affirming a judgment for plaintiff, defendant appeals.

Action for balance of purchase price of a chattel. The contract sued on is as follows: “June 24,1891. “To Lamson Consolidated Store Service Co., Boston, Mass.: Please ship two No. 7/25 adding register to No. 775 9th Ave. street, New York, for the use of which the undersigned agree to pay you for two registers so shipped as follows: $75 cash on delivery, and $75 each month, until the sum of $300, for two registers so shipped, has been paid; then said registers to become the…

Action of forcible entry and detainer by Julia Fuchs against Morris W. Cohen and others. From a judgment for plaintiff, defendants appeal.

<p>Appeal from seventh district court.</p> <p>Action by Thomas Brennan against Chester W. Chapin. From a judgment for plaintiff, defendant appeals.</p>

<p>Review on Appeal—Weight op Evidence.</p> <p>Where the issue is whether certain damages were caused by vis major or defendant’s negligence, and the decision of the trial judge is sufficiently supported by the evidence, it will not he disturbed.</p>

<p>Appeal from city court, general term.</p> <p>Action by Oliver H. Perry against the Erie Transfer Company to recover for the use of teams hired by defendant, and employed by it in the transportation of goods between the cities of New York and Jersey City. From a j udgment for plaintiff, defendant appeals.</p>

<p>1. Continuance—Absent Witness—Surprise.</p> <p>In an action in a district court to recover wages defendant was not present at the-trial, because customarily all contracts of employment were made with Ms foreman, who was present. Plaintiff testified that Ms contract was made with defendant personally. Held, that an adjournment should have been granted for the purpose of procuring defendant as a witness, since Laws 1857, c. 334, par. 778, provides-that an action in a district court may be continued “from day to day * * * until the same is finished. ”</p> <p>2. Review on Appeal—Denial of Motion for Adjournment—Original .Evidence.</p> <p>Code Civil Proc. § 3057, providing that where an appeal is founded on an error in fact not affecting the merits of the- action, “and not within the knowledge of the-justice, ” the court may determine the matter on affidavits and on examination of witnesses, refers exclusively to appeals from justices’ courts, and is not applicable to a denial of a motion for an adjournment to procure an absent witness, which is a matter “ within the knowledge of the justice. ”</p>

Application by Minna Knoch to revive an action against the executrix of Louis Funke, Jr., deceased, granted “upon condition that the plaintiff file security for costs.” Plaintiff moves to reargue the motion on ground that the condition imposed is unauthorized.

Action by Erances M. Jencks to restrain John Kenny from excavating in •front of plaintiff’s premises, unless defendant protect plaintiff’s wall. The property is situated in New York city. Defendant’s excavations exceeded 10 feet in depth, and plaintiff feared that her foundation wall would fall unless shored up, which defendant refused to do. A temporary injunction was granted. Plaintiff moves to continue the injunction.

<p>Action by H. Melton Carter against Wilberforce Sully. Motion by defendant to remove an action from the New York, city court, and consolidate it herewith.</p>

<p>Appeal from Madison county court.</p> <p>Petition by Jemima Lowe for the removal of a committee of lunacy appointed of her person and estate. From an order denying the petition, petitioner appeals.</p> <p>Petitioner is a married woman, upwards of 73 years of age, who was married to John Lowe, who resides at Munnsville, Madison county, N. Y., over 52 years ago. The petitioner and her husband formerly resided in the city of Toronto, in the dominion of Canada. The petitioner seems to have some $2,500 on deposit in the Onondaga Savings Bank and $2,500 on deposit in the Syracuse Savings Bank in the city of Syracuse. It seems that in the month of August, 1890, after the petitioner went to Canada, her husband commenced proceedings before the Madison county court to have a committee of her person and estate appointed; and on August 22,1890, James Lowe, nephew of John Lowe, the husband, was appointed committee of the person and estate of said Jemima Lowe, and no notice for the application for the appointment of said committee, or of the time and place of the execution of the proceedings, was given to the alleged lunatic. . On March 18,1891, motion papers-for the removal of the committee were served upon the committee, and on April 10,1891,. the Madison county court denied the motion, but “ with leave to the petitioner to r.enew the same upon fresh papers, as she may be ad-' vised.” On August 20, 1891, a second notice of motion was served for the removal of the committee, and on August 2,1891, the court again denied the motion, and the order is filed, in the Madison county clerk’s office, and the appeal before us is from that order. It has been asserted in behalf of the petitioner that the order of August 22,1890, appointing a committee, is void, as “no notice of either the application for a commission having been given to the alleged lunatic, or of the place or time of holding of the inquisition;” but the decision of the general term, first department, in Re Blewitt, 16 H. Y.. Supp. 305, holds that the failure to give such a notice is a “grave irregularity,” and it does hot “deprive the court of jurisdiction where the allegations of the petition show presumptively that the person is incompetent to manage-his affairs by reason of lunacy.”</p> <p>Argued before Hardin, P. J., and Martin and Merwin, JJ.</p>

Action by David M. Sails and others against Lovina C. Sails and others for partition of land descended from Enoch B-Sails, deceased.

Action by Bernard McKenna against Ellen Duffy and others for partition. From an order denying the motion of the purchaser at the partition sale to be relieved from the purchase, such purchaser, Charles Spengler, appeals.

Action by William E. Smith against Stephen Underhill' for an accounting of the partnership of Smith & Underhill. From a' judgment for plaintiff, entered on the report of a referee, defendant appeals.

Exceptions from circuit court, New York county. Action by Christian A. Schmidt against the Garfield National Bank for the-Conversion of checks belonging to plaintiff. A verdict was directed for plaintiff.' Defendant moved for a new trial on exceptions, and the motion was directed to be heard at the general term in the first instance.

<p>Exeoutous—Distribution oe Assets—Res Judicata.</p> <p>Where it has been adjudicated, on the final accounting by an executor, that a certain fund in the executor’s hands should be paid to one £>., and execution issued therefor, and the fund was claimed by other parties, it is too late for the executor to ask for an interpleader, he being bound by the adjudication.</p>

Action by Robert A. Davis against Catherine. B. Seaman and John M-Baker, administratrix and administrator of Catherine M. Wetherhee, deceased. From an order confirming a report of a referee, to whom was referred under the statute a disputed claim, defendants appeal.

. Action by William McClean against the Hew York Press Company, Limited, to recover damages for defamation of character. Prom a judgment entered on a verdict for plaintiff, and from an order denying its motion for new trial, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Philip Schuyler against Ernest Curtis and others for an injunction. From an order continuing the injunction pendente lite, defendants appeal.</p>

Petition by Catherine R. Smyley and Catherine R. Winter, individually and as administratrix of William H. Smyley, deceased, for an order directing Nelson J. Waterbury, Jr., to pay over certain moneys alleged to be held in his hands as attorney for petitioners. Order granted. Waterbury appeals.

<p>Action by Henrietta Chase against Mervey Chase for divorce. Defendant moves to confirm the report of the referee.</p>

Action by the First Hational Bank of Jersey City against John Lindenmeyr, impleaded with Peter Lenk, Carl P. Lenk, Rudolph Lenk, and Otto Huber, since deceased, to recover on certain notes. From a judgment for plaintiff, defendant appeals.

George W. Post was indicted for the offense of grand larceny, and arrested on a requisition by the governor of New York to the governor of Wisconsin, and brought to this state, and on arraignment pleaded not guilty. Subsequently that charge was abandoned, and he was held under a bench warrant issued on an indictment for robbery. From an order refusing to discharge defendant on a writ of habeas corpus, he.appeals.

<p>Appeal from special term, Mew York county.</p> <p>Action by Margaret S. Maitland against Thomas S. Godwin, August M. Collignon, Harriet S. B. Taft, and John G. Morris to foreclose a mortgage on leasehold property. Judgment for plaintiff. Defendant Godwin appeals.</p>

Action by the San Reno Hotel Company, as lessee, against Michael Brennan, as lessor, to restrain dispossessory proceedings for the nonpayment of rent. From an order continuing the injunction, defendant appeals.

Exceptions from circuit court, New York county. Action by Augusta Stalling against Louis B. Grabowsky. Verdict was directed for plaintiff, and exceptions ordered to be heard at the general term in the first instance.

<p>Appeal from court of general sessions, New York county.</p> <p>Frank McCormack, impleaded with John Feely and Martin Feely, was convicted of manslaughter in the first degree, and appeals.</p>

Action by Roderick H. Smith against the Martin Anti-Fire Car Heater Company for an accounting, and to recover for services rendered under a contract. From a judgment for plaintiff entered on the report of a referee, defendant appeals.

Action by Sara F. Elmer against the Mutual Benefit Life Association of America. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Dorman Walradt, as assignee for benefit of creditors of Frank M. Peck, against the Phcenix Insurance Company of Hartford, to recover a loss by fire on goods insured with defendant. From a judgment entered on a verdict for plaintiff for $1,634.23 damages, and costs, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

<p>Appeal from special term, Saratoga county.</p> <p>Application in the name of the people, on relation of Frank J. Sherman, for mandamus to John Person and others, composing the board of canvassers of the town of Milton. The application was denied, and relator, appeals.</p>

Application in the name of the people on relation of Henry Bradley and . others, for mandamus to Thomas G. Shaw and others, composing the board of canvassers of the town of Minerva. From an order granting the writ, defendants appeal..

Mandamus on the relation of A. Filkins Hose Company and others against William H. Son, as treasurer of the fire department of the city of Amsterdam. From a final order denying a peremptory writ, and dismissing the alternative writ, relators appeal.

Action by Frank H. Pettee against Mary H. Pettee for divorce. From an order denying defendant temporary alimony and an allowance, she appeals.

<p>1. Appeal—Review—Objections not Raised Below.</p> <p>In an action to restrain an elevated railroad company from interfering with plaintiff’s easements in the public street, and thereby lessening the rental value of his premises, the objection that no permanent injunction can issue as to one of his pieces of property because he has only a life estate therein will not be considered on appeal when such objection-does not appear on the record.</p> <p>■3. Witness—Refreshing Memory.</p> <p>Where it appears from the record that plaintiff testified from his memory independent of the books in which the receipts of the rents had been entered, the objection that his memory was refreshed by looking at such books was not well taken.</p> <p>3. Evidence—Book Entries.</p> <p>Where plaintiff testified that he had examined the books from time to time, and knew that the entries therein were correct, it was immaterial where the one who made such entries was at the time of the trial.</p> <p>4. Same—Relevancy.</p> <p>The objection to the question, “Did you consider the presence of the railroad, at the time you purchased in 1890, as an injury or a benefit to the property? ” was immaterial, since the question in issue was not as to what plaintiff considered the road when he purchased the property, but what it actually w.as.</p>

Action by Henry Rosellen, as assignee for the benefit of the creditors of Viemeister Bros., against Louis Herzog and Alfred Frank. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendants appeal. The paper referred to in the opinion was a written statement of the liabilities, assets, etc., of plaintiff’s assignors, furnished the board of trade by them.

Proceeding for the probate of the will of John Henry Fricke, deceased. A witness for contestants testified that the testator, on one occasion, said ■that the testator’s brother, William, was exercising with dumbbells to raise muscle so that he would be able to kill the testator. From a decree of the ' surrogate admitting the will to probate, the contestants, William D. Fricke ■and Mary Elizabeth Jennings, appeal.

Action by Charles E. O’Connor, as receiver, against the Mechanics’ Bank. The executors of Henry Ward Beecher, deceased, move to compel Lewis 8. Chase, a judgment creditor of Herbert F. Beecher, to pay a judgment for costs obtained in the action of Charles E. O’Connor, receiver, etc., against the Mechanics’ Bank, and assigned to the said executors. There was an order denying the motion, from which this appeal is taken.

<p>Appeal from special term, New York county.</p> <p>Action by Henry Heywood and others against William M. Thacher, as assignee of Richard S. Kingman, impleaded with said Kingman and others, to set aside the assignment and certain confessed judgments, and enforce collection of plaintiffs’ judgment against the assignor. There was a decree for plaintiffs making their judgment a lien, appointing a receiver and a referee, and ordering the assignee to account for and turn over all the assigned estate to such receiver. From an order confirming the report of the referee the assignee appeals.</p>

<p>1. Perjury—False Report by Officer of Savings Bank.</p> <p>Laws 1883, c. 409, § 370, requires savings banks to make semiannual reports off their condition to the state banking department. Sections 271 and 273 declare that the report shall state the assets and liabilities of the bank, including the amount due depositors. Section 273 provides that the “report shall be verified by the oath of the two principal officers of the institution, and the statement of assets shall be-verified by a majority of the trustees who examined the same, pursuant to the-requirements of section 279 of this act. ” Section 279 provides that the trustees of every savings bank shall examine the books, vouchers, and assets of the bank, and its affairs generally; and that “the statement or schedule of assets and liabilities-reported to” the banking department semiannually “shall be based upon such examination, and shall be verified by the oath of a majority of the trustees making such examination. ” Meld, that the two principal officers of a bank are required to-certify under oath that the report is a correct report of the condition of the bank, based on their own knowledge; and, where the treasurer of a bank knowingly makes a false affidavit that the report correctly states the amount due depositors, it is error to sustain a demurrer to an indictment against him for perjury on the-ground that he was only required to swear that the report was a correct statement. of, or correct as based upon, the examination made by the trustees, and that any other oath was extrajudicial, and a charge of perjury could not be predicated upon, it.</p> <p>8. Same—Indictment.</p> <p>Where the indictment in such case charges that the report stated the amount due depositors to be a certain sum, and that it was sworn to by defendant as correct, that the statement was in fact false, and defendant, knowing that it was false, and that the amount due depositors was larger than that stated in said report, verified the same, etc., it is not bad on the ground that it fails to aver that defendant swore that the affidavit subscribed by him was true, the affidavit only stating that the statements contained in the report were correct, but sufficiently charges perjury, under Pen. Code, § 96, declaring a person guilty of perjury if he “ swears * * * or states in his * * * affidavit or certificate any material matter to be true which he knows to be false. ”</p> <p>8. Same—False Affidavit.</p> <p>To constitute perjury, under Pen. Code, § 96, declaring a person guilty if he “swears * * * or states in his * * * affidavit or certificate any material matter to be true which he knows to be false, ” it is not necessary that a false affidavit of verification shall itself state the facts sworn to, but they may be stated in the report or pleading to which the affidavit is attached.</p> <p>4. Same—Indictment.</p> <p>An indictment against an officer of a bank for perjury, in falsely making affidavit that the statement of the bank’s liabilities contained in his report was correct, is sufficient if it avers that the liabilities were a larger amount than the amount mentioned in the report, without stating the amount of the excess.</p>

<p>1. Perjury—False Report by Officer of Savings Bank.</p> <p>An indictment against an officer of a bank for perjury in falsely making affidavit •to the truth of a report of the bank’s condition need not set forth the affidavit in full, but under Code Grim. Froc. § 391, it is sufficient to set forth its substance and effect.</p> <p>3. Same—Indictment.</p> <p>On indictment against an officer of a bank for perjury in falsely making affidavit to the truth of a report of the bank’s condition, defendant cannot object that the affidavits of other persons to the report are defective, and therefore extrajudicial, so long as his own affidavit was in compliance with the statute.</p>

<p>Appeal from court of oyer and terminer, Ulster county.</p> <p>Indictment against Matthew T. Trumpbour for perjury. From a judgment sustaining a demurrer to the indictment, the people appeal.</p>

Action by Charles F. Gall against Amelia Gall and others to secure the •specific performance of an agreement made by Joseph Gall, deceased, to devise certain property to the plaintiff. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from circuit court, New York county.</p> <p>Ejectment by Frances E. Godine against Henrietta Kidd impleaded with others. From a decision directing a verdict for plaintiff, defendants appeal.</p>

Action by Caroline B. Powers, administratrix with the will annexed of the estate of Hollis L. Powers, deceased, against Francis W. Savin and Elisha ■Vanderhoof, impleaded with John Wheeler, assignee of O. M. Bogart & Co. From a judgment for plaintiff, defendants appeal.

Action by Philip A. Smyth and others against Hugo S. Mack for brokerage. From a judgment for plaintiffs, and an order denying a motion for a new trial, defendant appeals.

Exception from circuit court, New York county. Action by Eugene Kelly against Jay Gould and others for false representations. After plaintiff had closed his case the complaint was dismissed, and exceptions to the order were directed to be heard at the general term in the-first instance.

Action by James Ferris against Elizabeth W. Aldrich. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by John Hope, by James B. Cuming, his guardian ad litem, against William A. Brewer, Jr., and Edward B. Crowell, individually and as executors and trustees of the will and codicil of Thomas Hope, deceased, to contest the validity of a residuary bequest. From a judgment at special term sustaining the will and codicil, (15 H. Y. Supp. 849,) plaintiff appeals.

<p>Appeal from surrogate’s court, New York county.</p> <p>• Petition by Charles James Phalen for the revocation of the probate of the will of James Phalen, deceased. From a decree dismissing the petition, petitioner appeals.</p>

<p>1. Forgery—Evidence—Indorsement of Check—Authority.</p> <p>Where, on indictment of an attorney for forging a check by indorsing the name of the payee, the defense was that the indorsement was made by authority of the husband of the payee, who transacted all business for the payee, and the husband denied having given any such authority, it was error not to allow the defendant, in corroboration-of his theory of the transaction, to prove by a witness a conversation between the husband and the defendant, wherein it was agreed that the defendant might make the indorsement.</p> <p>8. Same.</p> <p>It was error, also, to hold the defendant to the strict terms of the written authority given by the wife to the husband, as she might at any time have given him other and paroi authority, and defendant ought to have been permitted to cross-examine her as to any such authority, or as to any previous declarations with regard thereto.</p> <p>8. Same—Instructions—Intent to Defraud.</p> <p>Defendant was entitled to an instruction that if the husband directed him to indorse the check, and he believed in good faith that the husband had authority for that purpose, he could not be convicted; and this was hardly covered by the statement that it would have to appear affirmatively that, when the defendant made the indorsement, he did so for the purpose of cheating a.nd defrauding, as the inference might then have been drawn that the intent to cheat' and defraud was sufficient, notwithstanding the defendant’s belief in the authority of the husband.</p>

Application by Mary Monell, administratrix of the estate of Joseph S. Monell, deceased, for an order revoking the appointment of a special guardian for infants. From an order denying the application the applicant appeals.

<p>1. Assignment fob Benefit of Creditors—Validity—Preferences.</p> <p>In an action)to set aside certain judgments as constituting, together with an assignment, a general assignment with illegal preferences, it appeared that the judgments were confessed by the assignor simultaneously with the execution of the assignment; that they were entered after the assignment; that the assignment was void on its face, and was treated as such after the entry of the judgments; that executions were immediately issued and levied; and that on indemnifying the sheriff nearly all of the assigned property was taken and sold for the benefit of the judgment creditors. Held, that the judgments would he set aside as part of a scheme to give unlawful preferences.</p> <p>2. Same—Right of Creditors to Retain Proceeds of Illegal Preferences.</p> <p>Creditors of an insolvent firm, holding bona fide debts, who secure illegal' and fraudulent preferences; consisting of judgments or assigned accounts, cannot retain the proceeds realized thereunder as against unpreferred creditors. Knower v. Bank, 27 N. E. Rep. 247, 124 N. Y. 552; Bank v. HaUted, 27 N. E. Rep. 855, 124 N. Y. 674; Berger v. Varrelmann, 27 N. E. Rep. 1065, 127 N. Y. 281; and Manning v. Beck, (N. Y. App.) 29 N. E. Rep. 90,—distinguished.</p> <p>8. Same—Res Judicata—Appeal—Objections not Raised Below—Modification.</p> <p>In an action to set aside an assignment and certain judgments as together constituting a general assignment with illegal preferences, a decree for plaintiff in a former action was introduced by plaintiff, showing that certain of the judgments, which were included with the others, and made the basis of the action, had been used in the former action for the purpose of setting aside the general assignment, and that in the former action a receiver had been appointed. Held, that the objection that plaintiffs, by introducing such decree, showed that they had no standing in court to recover from defendant judgment creditors the moneys they had received was available on appeal, and that a judgment for plaintiffs should be modified by omitting the judgments included in the former action.</p> <p>4. Receivers—Appointment of Two—Which Takes Possession.</p> <p>Where the attention of a trial judge is not called to the proceedings in a previous action in which a receiver of certain property was appointed, and he appoints another receiver of the same property, the receiver first appointed should take possession of the property.</p>

<p>Duress—Threats to File Mechanic’s Lien—Ratification.</p> <p>An indorser of a note in an action thereon by the payee testified that the indorsement was coerced by threats of the payee to file a mechanic’s lien on buildings that were being erected for him by the maker of the note, to reach money due or to become due the maker. Similar threats had been made two months before the note was indorsed, giving the indorser time within which to investigate the payee’s rights. Three months after the note was made, when it fell due, and was dishonored and protested, no objection was made that it was indorsed under threats, and 12 days after its maturity the indorser made a payment on it. Held that, if the indorsement were made under duress, and void, it was subsequently acquiesced in and ratified.</p>

<p>1. Attorneys—Lien on Judgment—Rights against Assignee.</p> <p>Under Code Civil Proc. § 66, providing that an attorney’s lien “attaches to a * * * judgment in his client’s favor, and the proceeds thereof in whosesoever hands they come, ” an attorney who recovers a judgment for his client is entitled to compensation for his services out of the judgment in the hands of an assignee thereof without notice of his lien.</p> <p>2. Same—Notice op Lien.</p> <p>The assignees were put on inquiry by the judgment, entry, docketing, and execution, all of which contained the name of the attorney.</p> <p>3. Same—Fraudulent Judgment.</p> <p>The fact that the judgment was fraudulent could not be availed of by the assignees to defeat the attorney’s lien so long as they claimed the proceeds of the judgment.</p> <p>4. Same—Judgment—Notice to Judgment Debtor.</p> <p>In such case no notice of the attorney’s lien was necessary to be given to the assignees to protect the attorney.</p>

Action by David H. Carroll against Ann T. O’Shea. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Robert Fulton against Garret P. Lydecker and others. From at judgment entered on a verdict for plaintiff, and an order denying a motion for a new trial, defendants appeal.</p>

Action by Hartwell Abbey against Levi H. Mace and others to recover damages for breach of contract to deliver certain bread boards to plaintiff for decoration by him. From a judgment for plaintiff, and an order denying their motion for a new trial, defendants appeal.

Action by John H. Woods against Charles G. Francklyn to recover for work, labor, and services performed by request of defendant’s alleged agent. From a judgment of the general term of the city court affirming judgment entered on a verdict directed for plaintiff, (14 2ST. Y. Supp. 364,) defendant appeals.

Action by the Mitchell Vance Company against Mina Daiker, impleaded, and others. From a judgment dismissing the complaint against defendant Daiker in an action to foreclose a mechanic’s lien claimed pursuant to Laws 1885, c. 342, plaintiff appeals.

<p>Appeal from special term.</p> <p>Action by John T. Underwood against Stephen T. Smith. From a judgment granting an injunction pendente lite, defendant appeals.</p>

Action by Edward A. Hayward against Samuel H. Barron for the dissolution of a copartnership, and an accounting. From a judgment dismissing the complaint on the merits, plaintiff appeals.

<p>Appeal from fifth district court.</p> <p>Action by Sarah A. Barnum and others against John Fitzpatrick, tenant. From a final order awarding the plaintiffs the delivery of the possession of premises known as “320 Stanton Street,” New York, for the nonpayment of rent, defendant appeals.</p>

<p>Appeal from fourtti district court.</p> <p>Action by Herman H. Kipp against the East River Electric Light Company to recover an undertaker’s bill. Judgment for plaintiff. Defendant appeals.</p>

Action by Edward P. Yale and others against Henry 0. Dart and others. From a judgment of the general term of the city court (17 FT. Y. Supp. 179) affirming a judgment of the special term for plaintiffs, entered on the verdict <of a jury, defendants appeal.

Action by the Knickerbocker Company against Charles I. Roskopf to recover money alleged to have been fraudulently collected. From a judgment of the general term of the city court affirming an interlocutory judgment, and sustaining a demurrer to defendant’s counterclaim, with leave to defendant to serve an amended pleading, defendant appeals.

<p>Appeal from city court, general term.</p> <p>Action by Francois X. Dietlin against Thomas D. Egan. From an order of the general term of the city court, affirming an order denying defendant’s motion to vacate an attachment theretofore granted, defendant appeals.</p>

Action by Michael Noonan against the Mechanics’ & Traders’ Bank for an accounting. From a judgment of the general term affirming a judgment entered upon a verdict of the jury directed by the court in favor of the plaintiff, defendant appeals.

<p>1. Parol Evidence—To Explain Written Contract.</p> <p>In an action to foreclose a mechanic’s lien entered on a contract to do mason work, plaintiff may introduce as witnesses experts in the trade, to show that mason work does not include “plastering and whitewashing. ” Cassidy v. Pontham, (Com. PI. N. Y.) 14N. Y. Supp. 151, followed.</p> <p>2. Building Contract—Performance—Interference of Owner.</p> <p>Where a contract for mason work to be done on a building by plaintiff provided that a certain payment should be made when the mason work was completed, and plaintiff was delayed in his work on account of the delay of the work of another independent contractor, which had to be done first, and plaintiff used all diligence in going on with the work after it was possible for him to do so, and went prepared to-finish the job, when he was ordered off by the owner; who had put other men on the work, it was a substantial compliance, and entitled plaintiff to his payment.</p> <p>8. Same—Substantial Performance.</p> <p>Small and unimportant portions of the work, remaining undone by plaintiff, are not sufficient to preclude his right to a payment which is not a final payment, where such work could readily have been done thereafter, and there was no proof but that it would have been done had the payment been made.</p> <p>4. Same—Architect’s Certificate.</p> <p>The fact that the architect unreasonably refused to give plaintiff a certificate, on the ground that he had not done the plastering and whitewashing, could not. preclude the plaintiff from recovering.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Joseph J. Kittel against Thomas J. Callahan and James H„ Gartian, constituting the firm of Callahan & Gartian, on a guaranty for the accommodation of the maker of a note, and indorsed thereon in the firm name by Gartian. Judgment for plaintiff. Defendant Callahan appeals.</p>

<p>Appeal from trial term.</p> <p>Action for libel by Charles J. Hartman against the Morning Journal Association. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

Action for libel by Charles J. Hartman against the Morning Journal Association. From an order denying a motion for a new trial made on the ground of newly-discovered evidence, defendant appeals.

Action by Morris Neiman and others against James H. Butler to enjoin the ■use of a building in alleged violation of a covenant in a lease. From a judgment for defendant, plaintiffs appeal.

<p>Appeal from trial term.</p> <p>Action by Sylvan us Judd, as treasurer of the New York & New Jersey Sheep Brokers’ Association, against Dennis Harrington, to recover a penalty for the breach of the following agreement:</p> <p>“ Whereas, the undersigned members of the New York and New Jersey Sheep Brokers’ Association, an unincorporated association, formed for the purpose of guarding and protecting their several interests, deem it for their mutual benefit that their business relations should continue to be closely allied, to the end that loss may not arise to their consignors nor to themselves by unreasonable competition in business and commissions, and that the interests of all parties may be protected and promoted hereby; and whereas, all the parties hereto have agreed to pool and make a common fund of all the commissions earned in the sale of all shetip and lambs excepting those agreed to be paid to the Sheep and Lamb Butchers’ Mutual Benefit Association of the City of New York as long as this agreement remains in force, and have also agreed that all said commissions shall be divided among the parties hereto in the ratio or proportion hereinafter set forth: Now this agreement witnesseth that for and in consideration of one dollar, each to the other paid, and the mutual covenants and agreements herein contained, the parties hereto have agreed, and by these presents do severally and respectively, and each for himself and for his firm, hereby covenant and agree each with the other, as follows:</p> <p>“First. That each and all the parties to this agreement, including all the firms of which either of the parties hereto now are or may at any time hereafter become a member, shall and will at all times hereafter, and as long as this agreement remains in force, keep just, true, and correct books of account, in which the number of all £he sheep and lambs sold by him or them or their firm shall be entered, regularly and in the order in which sales of sheep and lambs are made.</p> <p>“Second. At the close of each and every week, or within two days thereafter, each and every party or firm hereto shall render a written statement, signed by him or them, to the treasurer of said association, showing the full number of all the sheep and lambs sold by him or them or their firm during said week.</p> <p>“Third. Said treasurer shall regularly and weekly enter all such statements in books to be kept by him for future reference, and he shall also file away and preserve each and all such original statements so delivered to him by each and all of the parties or firms hereto.</p> <p>“Fourth. At the close of each month a settlement shall be had, and said treasurer shall foot up the total amount of sales of sheep and lambs for that month, and the total number sold by each person or firm, parties to this agreement, and embody them in a statement of that month’s business, and he shall, within two days thereafter, deliver to each party or firm a copy of said statement, and each and all the parties or firms to this- agreement shall within three days after the receipt of the treasurer’s statement, as aforesaid, pay to said treasurer eleven and three quarter (Ilf) cents per head for each and every sheep and lamb sold by him or them or his or their firm during said month, as shall appear by said treasurers monthly statement. Said treasurer shall immediately, or as soon as all parties to this agreement have made their payments to him as herein provided, hand to each and all the parties and firms hereto his check as treasurer for the amount or percentage of all said commissions due and coming to him or them respectively, and so on from month to month: provided, however, that said treasurer may for convenience of business ascertain at the close of any month whether the percentage of sales made by any person or firm that month is greater or less than his or their proportion under this agreement of the total sales for that month at the rate of eleven and three quarter (Ilf) cents per head, and said treasurer may then demand from or pay to such party or firm such sum as will correctly adjust said percentage at the rate of eleven and three quarter (Ilf) cents per head, so that each party or firm shall receive monthly the percentage of the total commissions on all sales as herein provided. •</p> <p>“Fifth. The several parties and firms hereto shall be entitled to and shall receive the following percentage of all commissions earned as herein provided for and during this agreement, viz.:</p> <p>Fourteen Twelve Seven and § Seven. Nine Nine and f Seven and j-Twelve and ^ Two and J Nine Nine and § Dillenbeck & Dewey, .... Fourteen per cent. Hallenbeck & Davis, - - - Hume & Mullen, - Everett & Pidcock, - D. Harrington, - - Newton & Gillett, .... Judd & Buckingham, - J. F. Sadler & Co., - - Philip S. Ease, ... Sherman & Culver, - - - - J. N. Pidcock, ....</p> <p>“Sixth. All moneys which the New York and New Jersey Sheep Brokers’ Association shall receive from the Sheep and Lamb Butchers’ Mutual Benefit Association of the City of New York shall be divided,from time to time, at the close of every month, in the proportion above provided for the distribution of commissions among the parties hereto.</p> <p>“Seventh. In case either of the parties or firms to this agreement shall die, go out of business, or cease to be members of the New York and New Jersey Sheep Brokers’ Association, such fact shall not affect this agreement, but the percentage which such party or firm would have been entitled to receive out of the commissions shall be divided between the remaining parties hereto in the proportion above set forth. But in case any firm shall be dissolved, and any one member only of said firm shall continue the business, then such member shall be entitled to receive the proportion his firm would have been entitled to. And in case any firm should be dissolved, and more than one member of such firm shall continue the business, then all the member's of said firm together so continuing the business shall be entitled to receive the same proportion or percentage of the commissions their firms would have been entitled to had no dissolution been made.</p> <p>“Eighth. It is further agreed that this association shall have power, in case of the death of any member thereof, to admit to membership a suitable person to transact the business of such deceased member; such admission to be by a majority vote.</p> <p>“Ninth. It is mutually covenanted and agreed that the liquidated damages which each party and firm shall be liable to and shall pay to the treasurer of the New York and New Jersey Sheep Brokers’ Association as damages for the violation of this agreement shall be the sum of ten thousand dollars. Any and all money recovered by said treasurer under this clause of this agreement shall, after deducting all costs and expenses and counsel fees paid or incurred by him in any suit to recover the same, be divided between the parties hereto in the same proportion as the commissions are divided, excluding therefrom, however, the party from whom such money may have been recovered.</p> <p>“Tenth. This agreement shall take effect on the first day of January, eighteen hundred and eighty-seven, and shall continue in force for three years , from and after said date.</p> <p>“In witness whereof the parties hereto have hereunto set their hands this eleventh day of April, eighteen hundred and eighty-seven.</p> <p>“Signed and delivered in presence of W. H. H. Ease.</p> <p>“ Dillenbeck & Dewey. “Hallenbeck & Davis. “Hume &'Mullen. “Everett & Pidcock. “Dennis Harrington. “Newton & Gillett.</p> <p>Judd & Buckingham. J. F. Sadler & Co. Philip S. Ease. Sherman & Culver. James N. Pidcock. ”</p> <p>Defendant alleged that at the time of the execution of said agreement there existed a combination known as the “Sheep & Lamb Butchers’ Mutual Benefit Association,” consisting of nearly all the butchers of sheep and lambs in the cities of New York, Jersey City, Brooklyn, Long Island City, and that part of Hudson county, in the state of New Jersey, which is not included in Jersey City. That said association, and the members thereof, substantially do and control the butchering and preparing for market of all the sheep and lambs prepared for consumption in said cities and a considerable portion of the surrounding territory, and also for export from said cities to outlying places. That said last-mentioned association was formed under an arrangement between it and the members thereof and the New York & New Jersey Sheep Brokers’ Association, or the members thereof, which latter association was also formed under such arrangement or scheme. That the object and purpose of such scheme and of the formation of said two associations was to control and enhance the price of all the sheep and lambs, and of the meat obtained therefrom, in the aforementioned cities and territory. 'That the agreement upon which the action was brought was entered into as a part of such scheme or arrangement; and that in furtherance of such scheme or arrangement the said two associations so formed entered into an agreement between themselves, of which the following is a copy:</p> <p>“Articles of agreement made and entered into this 20th day of December, eighteen hundred and eighty-six, by and between [naming parties,] together comprising the unincorporated association known as ‘ The New York and New Jersey Sheep Brokers’ Association,’ and herein styled the parties of the first part, and [naming parties,] together comprising the unincorporated association known as ‘The Sheep and Lamb Butchers’ Mutual Benefit Association,’ of the city of New York, and herein styled the parties of the second part: Witnesseth, whereas, the parties of the first part are engaged in business in or about New York market as wholesale brokers in sheep and lambs, and the parties of the second part are engaged or interested in the business of buying sheep and lambs for slaughter and sale in or about New York market; and whereas, it has been and is deemed beneficial and for the interest of all parties hereto that they should be more closely connected in business, and should render such mutual aid, protection, and assistance as is hereinafter set forth: How this agreement witnesseth, that in consideration of one dollar, each to the other paid, and the mutual covenants and agreements herein set forth, the said parties of the first part hereby jointly, severally, and separately, and each for himself, individually and jointly, covenant and agree to and with the said parties of the second part as follows:</p> <p>“First. That on and after this date they will each keep true and correct books of account, showing all the sheep and lambs by them or their firms respectively sold in or about or for New York market.</p> <p>“Second. The parties of the first part jointly and severally agree each for himself to render to the secretary of said parties of the second part, at the close of each month while this agreement is in force, a just, true, and correct copy of the account in his or his firm’s books, showing the full number of sheep and lambs sold by him or his firm in or about or for New York market for said month.</p> <p>“Third. Said parties of the first part further, jointly, severally, and each for himself separately, covenants and agrees that at the time of rendering said account to said parties of the second part, that he or his firm will pay to the said parties of the second part three and one quarter (3J) cents per head for each and all the sheep and lambs sold by him or his firm, respectively, in or about or for New York market, composed of the city of New York, Hudson county, H. J., and Long Island City and Brooklyn, H. Y., for or during said month; said payments to be made on or before the fifth day of each and every month.</p> <p>“Fourth. Said parties of the first part further covenant and agree not to slaughter, or to have any one for it or them or either of them slaughter, any sheep or Iambs, or directly or indirectly be interested in slaughtering any sheep or lambs, except for purposes of export only. If at any time during the continuance of this agreement the parties of the first part, or any or either of them, shall slaughter, cause, or procure to be slaughtered, or be interested in the slaughtering of, any sheep or lambs for New York market, composed of New York city, Hudson county, H. J., and Long Island City and Brooklyn, H. Y., except for exportation, then, in that case, the agreement shall thereupon terminate as to the person or firm parties of the first part so slaughtering, causing, or procuring to be slaughtered any sheep or lambs.</p> <p>“Fifth. Said parties of the first part further covenant and agree, jointly, severally, and each for himself separately, that he or his firm will not directly or indirectly sell any sheep or lambs to any persons or person, firm or firms, except to the parties of the second part, excepting T. C. Eastman and Joseph Eastman, for their personal trade in and for New York market, composed of the city of New York, Hudson county, H. J., and Long Island City and Brooklyn, H. Y., and for all sheep and lambs sold by any of the parties of the first part to any other persons except to the parties of the second part for New York market, composed of New York city, Hudson county. H. J., and Long Island City and Brooklyn, H. Y., and excepting T. C. Eastman and Joseph Eastman, as aforesaid, the said parties of the first part agree to pay to the treasurer of the said parties of the second part fifteen cents per head for each and every sheep and lamb so sold.</p> <p>“Sixth. Said parties of the first part further agree to report to the president of the parties of the second part at the close of each and every week any and all sales made by any of its members to any person or firm other than the parties of the second part, and at the close of each month pay over to the treasurer of the parties of the second part the sum of fifteen cents per head for each and every sheep and lamb so sold. And in case any of the parties of the second part should learn of any such cases not reported by the parties of the first part, as aforesaid, then said parties of the second part shall give notice of the same to the president of said parties of the first part, and, if the facts shall be as claimed on examination, then said parties of the first part shall thereupon at the close of that week report and return said sale, and at the close of that month pay over to the parties of the second part the fifteen cents per head as above provided.</p> <p>“Said parties of the second part covenant and agree with the several parties of the first part, severally and jointly, as follows:</p> <p>“First. That they will at all times during this agreement keep the parties of the first part informed of the names of all parties who are members of their association, and will, as often as any changes occur, notify the parties of the first part of any changes in the members of their association. The said parties of the second part shall have the right to add at any and all times during the terms of this agreement one or more members to their said association, and the members so added shall thereupon be entitled as fully to all the rights and privileges and" subject to all the liabilities as if they had been named in and subscribed this agreement. Said parties of the second part hereby further agree that said new members, while members of the association, shall abide and be governed by the covenants and agreements and perform the covenants and agreements herein.</p> <p>“Second. Said parties of the second part further agree that each and every person or firm that now are or shall at any time hereafter become members of their association shall, so far as practicable, make all their purchases of sheep and lambs in or about or for New York market of and from one or the other of the parties of the first part or their firms,, and shall purchase all sheep and lambs consigned to any of the parties of the first part'; and in case any one of the members of the association of the parties of the second part shall fail to make his or their purchases of or from some one of the parties of the first part or their firms, or of any of the parties of the first part, then, and in that case, said parties of the second part agree to pay to the treasurer of the association of the parties of the first part, for the benefit of all the parties of the first part, the sum of fifteen cents per head for each and every sheep or lamb purchased by any one or all of their members from any person, firm, or corporation whomsoever, other than the parties of the first part.</p> <p>“Third. Said parties of the second part further agree to report to the president of the parties of the first part, at the close of each and every week, any and all purchases made by any of its members of or from any person or firm other than the parties of the first part, and at the close of each month pay over to the treasurer of the parties of the first part the sum of fifteen cents per head for each and every sheep and lamb so purchased. And in case any of the parties of the first part should learn of any such cases not reported by the parties of the second part, as aforesaid, then said parties of the first part shall give notice of the same to the president of the parties of the second part, and, if the facts shall be claimed on examination, then said parties of the second part shall thereupon at the close of that week report and return said purchase, and at the close of that month pay over to the said parties of the second part as above provided.</p> <p>“Fourth. It is hereby mutually covenanted and agreed by the parties to these presents that the death, resignation, or.expulsion of any of the parties herein shall not affect this agreement, but the surviving and remaining parties, without further agreement, action, or covenant, shall continue, and this agreement shall remain in full force as to the remainder.</p> <p>“Fifth. This agreement shall commence and take effect on the first day of January, 1887, and continue until the first day of January, 1890.</p> <p>“In witness whereof the parties to these presents have hereunto set their hands and seals this 20th day of December, 1886.” (Signatures.)</p> <p>From a judgment for defendant, and order denying a new trial, plaintiff appeals.</p>

, Action by Samuel E. Hendricks, as assignee of Carl R'andrup, against George S. Daniels, to recover $100 as commission for procuring a purchaser for certain property belonging to defendant. From a judgment entered on a verdict for defendant, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Accident at Railroad Crossing—Smoke Obstructing View.</p> <p>Where one drives on a railroad crossing when the smoke, which has suddenly descended from a neighboring factory, obscures the view which he would otherwise have of an approaching train, he cannot recover for injuries from a collision with the train.</p>

Action by the St. Lawrence Wholesale Grocery Company against Howard H. Hobson. After an appeal had been taken by plaintiff from a judgment in favor of defendant, an order was made by Mr. Justice Bussell, at chambers, directing a stay of the argument of the appeal, and postponing the same until the next general term. Defendant (respondent) moves to vacate the order.

Controversy between Jennie E. Wood, as administratrix with the will annexed of Samuel Wood, deceased, against Robert M. Nesbitt.

Action by John W. Cochrane, Edward H. Schell, and Sarah Ann Kip, executors and trustees under the will of Adam W. Spies, deceased, against Cornelia Elizabeth Schell, impleaded with Sarah Ann Kip and others, to obtain the construction of the will of the said deceased. From a judgment construing the will, defendant Cornelia Elizabeth Schell appeals.

Action by John W. Cochrane, Edward H. Schell, and Sarah Ann Kip, executors and trustees under the will of Adam W. Spies, deceased, against Sarah Ann French and others, impleaded with Sarah Ann Kip and others, to obtain the construction of the will of the said deceased. From a judgment construing the will, Sarah Ann French and the other defendants appeal.

Action by Marie T. Upington against Louis J. Pooler. From a judgment for plaintiff, defendant appeals.

Action by Mary B. Smith against People’s Mutual Benefit Society to recover a sum due upon its certificate or policy. From a judgment for plaintiff, entered on a decision made at the circuit, a jury having been waived, defendant appeals.

Case submitted on agreed statement. Controversy between Sophia Regina Goetz and Edward H. Ballou, submitted on an agreed statement of facts under section 1279 of the Code of Civil Procedure. Judgment for plaintiff.

Exceptions from circuit court, Allegany county. Action by Oliver M. Kemp, executor of Samuel 0. Kemp, deceased, against the Good Templars’ Mutual Benefit Association for life insurance. Verdict was directed for defendant, and plaintiff moves for a new trial on exceptions •ordered to be heard in the first instance at the general term.

Action by Frances E. Grissen against Ruth L. Southworth, executrix of the last will of Mortimer M. Southworth, deceased. From an order suppressing the deposition of Mary Lyon, a witness for defendant, taken under a •commission issued at defendant’s instance, defendant appeals.

Action by May Ensign, administratrix, against Thomas Dickinson and others, to recover money paid upon a claim for which it was alleged the estate was not liable. From an interlocutory judgment, together with an order directing such judgment, overruling a demurrer interposed to the complaint, defendant Dickinson appeals.

Action by llomine 0. Bush against Humphrey Folks. From a judgment of the county court, affirming a judgment of a justice of the peace in favor of plaintiff for two dollars and costs, defendant appeals.

<p>Appeal from Niagara county court.</p> <p>Action by James Tobin against William J. Kage. Judgment for defendant, and plaintiff appeals.</p>

Action by Josiah C. Miller against William H. Cobb and another to reach property claimed to be fraudulently conveyed. Prom two orders,—one entered May 23, 1891, but bearing date the last Monday of March, 1891, denying plaintiff’s motion to set aside an order entered December 29, 1890, the other entered May 22, 1891, bearing date January 29, 1891, settling issues to be tried by a jury at the circuit,—plaintiff appeals.

Exceptions from circuit court, Genesee county. Action by David A. McDonald and another against Albertus B. Johnson, impleaded with others. There was a verdict for plaintiffs, and defendants moved for a new trial on exceptions which were ordered to be heard at the general term in the first instance.

Action by Catherine Mehegan, administratrix of Cornelius Mehegan, deceased, against the New York Central & Hudson River Railroad Company. Prom a judgment entered on a verdict, in favor of plaintiff in the superior court of Buffalo, and from an order denying defendant’s motion for a new trial, made on a case and exceptions, defendant appeals. The case was removed from the superior court of Buffalo to the supreme court under Code Civil Proc. § 273.

Action by Benjamin B. Conable against Edgar K. Smith, surviving defendant, impleaded with Charles K. Brown, now deceased, on a note. There was judgment for plaintiff. From an order denying defendant’s motion for a new trial, made on case and exceptions, and also on the ground of newly-discovered evidence, defendant Smith appeals.

Action by Benjamin B. Conable against Matison Keeney. From an order denying his motion for new trial upon a case, exceptions, and affidavits, defendant appeals.

Action by Thomas Kozer against August Sommer. From a judgment reversing the judgment of a justice’s court, entered on the verdict in plaintiff’s favor, plaintiff appeals.

Action by John Rorbaqli against Lloyd W. Crossett for rent. From a judgment for defendant, and from an order denying a motion for a new trial, made on the judge’s minutes, plaintiff appeals.

Action by William II. Ketchum against Eugene E. Lewis. From an order directing the complaint to be made more definite and certain, and each cause of action as set forth therein to be separately stated and numbered,, plaintiff appeals.

Action by Lewis D. Browning against the New York, Lake Brie & Western Bailroad Company. Br.om an order denying defendant’s motion for costs, under Code Civil Proc. § 3234, providing that “where the complaint sets forth two or more causes of action upon which issues óf fact are joined, if the plaintiff recovers upon one or more óf these issues, and defendant upon the other or others, each party is entitled to costs against the adverse party,” defendant appeals.

Action by Charles F. Mellisli, executor of Titus S. Butler, deceased, against Thomas McMahon on a promissory note. From a judgment of the supreme court on report of a referee, defendant appeals.

<p>L Compulsory Reference—Examination of a Lono Account.</p> <p>A compulsory reference will not be ordered on plaintiff’s motion, as in a case requiring the examination of a long account, (Code Civil Proc. § 1013,) where a bill of particulars served by plaintiff gives the items of a long account, and shows that the amount in suit is the balance of such account, but the account is not put in issue by the answer, though the moving affidavit alleges that “the answer sets up facts requiring the examination of the account stated” in the bill of particulars.</p> <p>2. Same—Affidavit.</p> <p>Where the affidavit accompanying a motion for a reference is made, not by the moving.party, but by his attorney, and no reason therefor is assigned, the motion should be denied.</p>

Action by John J. P. Read and Elizabeth A. S. Read against August Simon. From an order made upon the death of Elizabeth A. S. Read, directing that the action be severed, and that it proceed as between the plaintiff John J. P. Read and defendant, with leave to amend the complaint, John J. P. Read appeals.

Suit by Florence A. Smith against the city of Rochester to recover for personal injuries. There was a judgment of nonsuit, and plaintiff then moved for a new trial upon exceptions ordered to be heard in the first instance at the general term.

Action by John Hyatt against the New York, Lake Erie & Western Railroad Company to recover the value of a colt found dead on defendant’s railroad. From a judgment for plaintiff, and an order denying its motion for a new trial on a case and exceptions, together with the judgment entered on such order, defendant appeals.

Action in tort by Gertrude Dean, by her guardian ad litem, against Miners Raplee. From a judgment for plaintiff, entered on a verdict of a jury at the Wyoming circuit, and from an order of the special term denying a motion for a new trial on a case and exceptions, defendant appeals.

<p>Action on Attachment Bond—Liability of Sureties—Costs Paid by Principal.</p> <p>An attachment bond provided that if defendant should recover judgment in the action, or if the attachment should be vacated, the obligors would pay all costs that might be awarded defendant, and all damages which he might sustain by reason of the attachment. The attachment was not vacated on motion, but the complaint was dismissed, and the dismissal affirmed on appeal, and judgment rendered for defendant for costs, which plaintiff, principal in the bond, paid. Held, that the undertaking covered not only such costs as accrued by reason of the attachment, but the costs of the action and of the appeal, and that, these having been paid by the principal to an amount exceeding the penalty of the undertaking, the sureties were discharged.</p>

<p>1. Agency—Ratification.</p> <p>Plaintiffs purchased a car load of eggs through defendants’ brokers, to be delivered in New York city at a certain time. Held, in an action for loss occasioned by-nondelivery at the time agreed, that defendants, having forwarded the bill of lading" to plaintiffs, and drawn on them for the purchase price, ratified the sale of the brokers, and were bound by their acts and conversations in the premises.</p> <p>3. Depositions—Impeachment oe Deponent—Laying Foundation.</p> <p>The deposition of a witness cannot be impeached at the trial by evidence of contradictory statements made by him elsewhere, to which his attention was not called-at the time the deposition was taken.</p>

<p>Writs—Service of Summons—Privilege of Witness.</p> <p>Where a nonresident, who comes into the state to testify in an action, is too late for the trial, and unnecessarily delays the taking of his deposition de bene esse, and attends to business matters, he loses his exemption from service of process.</p>

Action by the Hungerford Company against Clara Rosenstein to recover purchase money. From a judgment for plaintiff, and order denying a motion for a new trial, defendant appeals.

Action by Meyer Bickart against Michael E. Hoffmann. From a judgment entered on an order of the general term affirming a judgment entered on a verdict in favor of plaintiff, and affirming an order denying a motion for a new trial, defendant appeals.

Petition By the Church of St. Francis Xavier, asking that an adjudication of lunacy against Ann Eliza Owens be set aside. From an order denying a motion to confirm the report of the referee appointed in the case, the college appeals.

Action in equity by Warren S. Sillcooks against the New York Elevated Railroad Company, the Metropolitan Elevated Railway Company, and the Manhattan Railway Company, for an injunction against the maintenance and operation of defendants’ railway, and for past damages for such operation. From a judgment for plaintiff, awarding an injunction and damages, defendants appeal.

Action by William Wharton, Jr., & Co. against Charles E. Winch for breach of contract. Verdict directed for defendant, and plaintiff’s motion fora new trial on exceptions directed to be heard at general term in the first instance.

<p>Appeal from city court, general term.</p> <p>Action by Bridget Larkin against the New York & Northern Railroad Company. From a judgment entered on a verdict for plaintiff, defendant appeals.</p>

Exceptions from circuit court, Steuben county. Action by Jane A. McDougall and another, administrators of the estate of John McDougall, deceased, against the Provident Savings Life Assurance Society of New York, to recover on a life insurance policy. Defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance.

<p>Misconduct of Jurors.</p> <p>On a criminal trial, a juror, during an adjournment of the court, and before the submission of the case to the jury, was taken sick, at the hotel where the jury was kept, with symptoms of alcoholism, and a physician was called, who prescribed champagne and spirits, which were administered. There was no evidence that such juror took any stimulant after the case was submitted, while it was shown that during the jury’s deliberation his mind was clear, and that he exhibited none of the eSects of intoxicating liquors. Held no ground for setting aside the verdict.</p>

<p>Conversion—What Constitutes—Sufficiency of Evidence.</p> <p>A judgment for plaintiff, in an action before a justice for conversion of a cow, will not be disturbed, although plaintiff merely proved her ownership of the cow, and that defendant took it from her possession, where the evidence in defendant’s behalf showed that he sold it under a chattel mortgage given by plaintiff’s husband, which she did not sign, and in which, as she testified, she forbade defendant to include the cow.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Walter A. Wood Mowing & Reaping Machine Company against Robert H. Pearson. From a judgment in favor of defendant, entered on the report of a referee, plaintiff appeals.</p>

Thomas McKeon was convicted of rape, and appeals from an order denying a motion in arrest of judgment and for a new trial.

<p>Misjoinder of Actions—Waiver of Objections—Consent to Refer.</p> <p>The legatees of a remainder of personal property, which is to be divided equally between them, cannot maintain a joint action therefor against the administrator of the owner of the life interest, and such misjoinder is not waived by defendant’s consent to refer the claim, where the fact that the claim is several, and not joint, did not appear on the face of the claim as presented.</p>

Certiorari by Willard Pulman to review the decision of Charles R. Henion and others, water commissioners, denying the application of relator and others for the repair of certain ditches in the towns of Waterloo, Junius, Seneca Palls, and Tyre, in the county of Seneca.

<p>Factors—Unauthorized Expenditures—Tipping Purchaser’s Servant.</p> <p>Where a contract by which plaintiff employed defendant to sell a pair of horses-contained stipulations as to plaintiff’s liability for their keep, medical attendance, and shoeing, and an agreement that defendant should receive one half of the amount received for the team in excess of a certain sum, a provision that defendant should “handle the team” as he should “see fit” did not render plaintiff liable for a present made by defendant to the purchaser’s coachman to effect the sale.</p>

<p>1. Stipulations—Enforcement.</p> <p>A stipulation volunteered bv defendant, that, if the cause be continued, the issues, except the question of damages, should abide the result of another case pending, having been made without fraud, deceit, or mistake, and the continuance granted, should be enforced.</p> <p>2. Same—Effect—Damages.</p> <p>The action being for the death of plaintiff’s husband, though all the issues except that of damages were decided in her favor by the result of the pending case, still, as bearing on the earning capacity of deceased at the time of his death, and the then probable duration of his life, evidence of an injury that he received a short time before, and the extent thereof should have been admitted.</p>

Action by James H. Lake against John B. McElfatrick and another. From a judgment for plaintiff, entered on the verdict of a jury, and an order denying a motion for a new trial, on a case and exceptions, defendants appeal.

Action by John J. Snell against the Rochester Railway Company to recover for injuries to a.horsefroma fall on defendant’s track. From a judgment affirming a judgment for plaintiff in the municipal court of Rochester, defendant appeals.

Action by Michael McNamara, administrator of Margaret McNamara, against the New York Central & Hudson River Railroad Company, for the death of intestate. From a judgment for plaintiff entered on verdict, and from an order denying defendant’s motion for new trial, made on the minutes of the court, defendant appeals.

<p>Appeal from special term, Monroe county.</p> <p>Action by Franklin B. Freeman against John S. Rich and others, administrators of Weldon C. Freeman, deceased. From so much of an order as demies confirmation to a portion of the report of a referee, in a reference, under «the statute, of a disputed claim against the estate of the deceased, plaintiff appeals.</p>

Action by Isaac Altman and others, administrators of Jacob Altman, against Gabriel Wile, Schanette Wile, Eli Hofeller, and others, to set aside the settlement of one of the defendants as administrator of Samuel Hofeller. From a judgment entered on report of a referee, defendants appeal.

Action by M. E. Bower and another against Edwin B. Thompson for money had and received. From a judgment affirming a judgment for plaintiffs in justice court, defendant appeals.

Exceptions from circuit court, Monroe county. Action by the Empire State Insurance Company against the American Central Insurance Company. A verdict was directed in favor of defendant, and plaintiff moves for a new trial on a case and exceptions ordered to ba heard in the first instance.at general term.

Action by Jacob Lutz against August Keiser ancl another. From a judg ment entered on a verdict for plaintiff, and an order denying a new trials defendants appeal.

Ejectment by Mary S. Huber against John Bletzer. From a judgment dismissing the complaint after a nonsuit, and from an order denying a motion for a new trial, plaintiff appeals. The answer alleged: “First.

<p>1. Criminal Law—Sentence—Right to Suspend During Good Behavior. ' " Where a person pleads guilty to an indictment, it is the imperative duty of the court to impose the sentence prescribed by law, and it cannot, on petition of citizens showing that defendant has made restitution to those injured by his crime, suspend sentence during good behavior, since that would be an exercise of the pardoning power, which the constitution (article 4, § 5) vests in the governor.</p> <p>3. Same—Refusal to Impose Sentence—Mandamus. '•></p> <p>Where the court improperly refuses to impose sentence in a criminal case, mandamus will lie on the relation of the district attorney to compel it.</p>

Action by Mary Mahoney, administratrix of Baniel H. Mahoney, deceased, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by John F. Gates, assignee under an assignment by Helen A. and: L. Sophia Williams for the benefit of their creditors, against the Citizens’ Bank of Perry, H. Y. From a judgment entered on the report of a referee-dismissing the complaint, and an order granting defendant an extra allowance of costs, plaintiff appeals.

Exceptions from circuit court, Cayuga county. Action by Kate Davis, administratrix of Grant L. Davis, deceased, against the Lehigh Valley Railroad Company. On motion of defendant a nonsuit was directed. Plaintiff moved for a new trial, which was ordered to be heard in the first instance at general term on a case and exceptions.

<p>Appeal from judgment on report of referee.</p> <p>Action by Enos G-. Laney individually and as administrator of James Laney, deceased, against Mary IC. Laney. From a judgment for plaintiff, defendant appeals.'</p>

Action by Thomas Pitts and others against Philip W. Scribner. From an order setting aside an attachment therein, on motion of the Detroit Lumber Company, a subsequent lienor under an attachment issued in an action by the lumber company against defendant, Scribner, plaintiffs appeal.

Action by Catherine S. Seiffert against Bichard Gaverly. From an order denying plaintiff’s motion to open a default judgment dismissing the complaint, plaintiff appeals.

Action by Phineas Y. Hawley, executor, etc., against Bridget Whalen and others to foreclose a mortgage. From an order of the county court entering judgment against defendants for a deficiency therein defendants appeal.

Action by Mary E. Biley against Ashbel W. Biley and Anna Bently, executors of Ashbel W. Biley, deceased, to recover on a claim against the deceased. From a judgment dismissing the complaint, plaintiff appeals. On the 31st day of March, 1882, there was paid to the plaintiff’s husband, Gen-. Ashbel W. Biley, now deceased, for the plaintiff, the sum of $2,500. The general died on the 3d of April, 1888, never having paid, the money, or any part thereof, to the plaintiff.

Action by John Dennis against Robert 0. Harris and others. . From a judgment entered on a verdict for defendants, plaintiff appeals. The notice of appeal, after reciting that the plaintiff appeals to the general term from the judgment, states that the appellant intends to bring up for review upon such appeal the order dated the 15th day of January, 1890, denying a motion for a new trial. j

• Application by Hugh H. Woodworth and others for an order under Laws 1890, c. 262, § 13, directing the county clerk to print certain names on the official ballots. From the making of such an order, Duncan McArthur, as substitute for the county clerk, appeals.

<p>Appeal from special term, Livingston county.</p> <p>Certiorari on the relation of the Delaware, Lackawanna & Western Railroad Company against Alexander Reed. From a judgment dissmissing the writ, and from certain interlocutory orders, relator appeals.</p>

Certiorari by the Delaware, Lackawanna & AVestern Railroad Company to review an assessment made by AViiliam H. Clapp and others, assessors, and Charles H. Miller, town clerk, of the town of York. From a final order of special term adjudging the assessment void for irregularities, defendants appeal.

Action by the Delaware, Lackawanna & Western Railroad Company against Thomas Gordon, collector of the town of York, and the board of supervisors of Livingston county, for injunction. From an order entered in Livingston county, denying plaintiff’s motion for injunction pending the action, plaintiff appeals.

<p>Appeal from Erie county.</p> <p>Action by the Commercial Rational Bank of Peoria, III., against Edmund K. Taylor. From an order granting a nonsuit, and judgment thereon, plaintiff appeals.</p>

<p>Case submitted on agreed statement.</p> <p>Proceeding in the name of the people against Frank H. Hull, Christian Smith, and Thomas H. Munsell.</p> <p>Case submitted under section 1279 of the Code of Civil Procedure to determine who are supervisors of the Third and Fourth wards of the city of Buffalo. Prior to the adoption of the new charter for the city of Buffalo, March 27, 1891, (chapter 105, Laws 1891,) the city was divided into 13 wards. 1 to 12 inclusive had two supervisors each; ward 18 had one. They held office for two years. By the new charter the city was divided into 25 wards. By the new division the old Second and two elective districts of the old Third made the new Third ward; the remaining districts of the old Third and one district of the old First comprised the new Fourth ward. The defendant Thomas H. Munsell was a resident of and duly elected a supervisor of the old Second ward at the annual election in 1890, for the term of two years. He had always resided in the same place in said ward at which he resided when elected. He duly qualified, and has since been an acting supervisor. The defendant Christian Smith was a resident of and duly elected a supervisor of the old Third ward at the annual election for 1890, for the term of 2 years. He has always resided, and still resides, in the same place at which he resided when so elected, his place-of residence being in one of the election districts of the old Third ward, added as aforesaid, to form the new Third ward. Mun-sell and Smith qualified as supervisors, and performed the duties of their office for the year 1891, and are still acting supervisors. On the 1st day of October, 1891, there was no supervisor residing within the boundaries of the new Fourth ward. Ascertaining that fact, ithe city clerk, in giving the required notice of offices to be filled at the annual election in 1891, included the supervisor for said new Fourth ward. The defendant Frank H. Hull and one William Weyand were respectively putin nomination by the two principal political parties as opposing candidates for the office of supervisor for said ward. Hull received 959 votes and Weyand 854. The returns of said election were duly filed and canvassed. A certificate of his election was delivered to Hull. He qualified as supervisor. Hull was a resident and elector of the Fourth ward, and still resides therein. If the office was required to be filled at said election, it is conceded that Hull was duly elected and entitled thereto. That since January 1, 1892, and prior to the 17th day of May, 1892, there were no official duties for either of the defendants to perform as supervisor. After the annual election of 1891, the clerk of the board prepared a roll of the members thereof for the year 1892, enrolling Munsell and Smith as supervisors for the new Third ward and Hull as supervisor for the Fourth ward. A special session of the board was called on the 17th day of May, 1892. Notice thereof was given to all the supervisors, including the defendants. The clerk, before the board convened, struck Hull’s name from the roll of membership, and inserted in place thereof the name of Smith, and struck Smith’s name from the roll of membership as the supervisor from the Third ward, and thereupon the session of the board of supervisors was called to order, and the question of the right of the respective defendants to represent, as supervisors, the new Third and Fourth wards was considered by the board, and by a majority vote thereof it was decided that the defendant Thomas H. Munsell was entitled to the seat as supervisor for the new Third ward, and that Christian Smith was entitled to the seat as supervisor for the new Fourth ward.</p>

Action by Alexander Rich against the Manhattan Railway Company and another to restrain the operation and maintenance of defendants’ railroad in front of seven parcels of property belonging to the plaintiff. From an interlocutory judgment denying the relief, plaintiff appeals. As facts the trial court found: “Thirty-Ninth.

Action by Ann McManus against William H. Woolve'rton, president of the New York Transfer Company, to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals.

<p>Certiorari—Sufficiency of Return.</p> <p>The return to a writ of certiorari commanding a board of police commissioners to certify all their acts in the removal of a police officer must contain a statement, in effect, that all such acts are therein returned, failing which a further return must be directed.</p>

<p>Appeal from special term, Monroe county.</p> <p>Action by Eleanor D. Gaylord, administratrix of Ann 0. Bradburn, against Nelson Beardsley. From an order allowing defendant to “amend his answer as he may be advised” plaintiff appeals.</p>

<p>1. Extortion—Threats—Injury to Business.</p> <p>An injury to one’s “business” is an injury to his property, within Pen. Code, §jj 552, 553, defining “extortion” as procuring the property of another by means of fear, induced by threats to injure his “property. ” People v. Barondess, (N. Y. App.) 31N. E. Rep. 240, followed.</p> <p>2. Jury—Challenges—Allowance after Juror is Sworn.</p> <p>Under Code Crim. Proc. jj 371, providing that “the court may, in its discretion, for good cause set aside a juror at any time before evidence is given in the action," the court may grant leave to interpose a peremptory challenge to a juror already. accepted and sworn, if it do not prejudice defendant’s rights, upon the oral statement of counsel for the prosecution that matters had come to his knowledge, after the juror was sworn, leading him to believe that he was unsatisfactory.</p>

<p>Appeal from circuit court, Ontario county.</p> <p>Action by Charles Jones against Orin S. Bacon, as surviving executor of James McKechnie, deceased, to recover on an alleged obligation of indemnity. From a judgment for plaintiff for damages and costs, and an order of special term denying his motion for a new trial on a case and exceptions, defendant appeals.</p>

Action by Frank Barrett against the town of Walworth. There was a judgment of nonsuit, and plaintiff’s motion for a new trial, on case and exceptions, was directed to be heard in the first instance at the general term.

Action by John O’Day against Byron Chaffee. From a judgment in defendant’s favor, and from an order denying a motion for a new trial, plaintiff appeals.

In the matter of the application of the board of rapid transit railroad commissioners. Motion to confirm the report of commissioners appointed to determine whether a rapid transit railway should be established.

Application by the people on the relation of the Oak Hill Cemetery Association for a writ of certiorari to review an assessment of its property made by Luther A. Pratt and others. Upon final' appeal to the court of appeals the assessment was ordered to be vacated. Relator now moves for a retaxation of costs, the county clerk having allowed it motion costs only in the general term and court of appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by the First national Bank of Springfield, Mass., against Peter Haulenbeek. From a judgment for plaintiff, defendant appeals.</p>

Action by Charles Donohue and another against William L. Pomeroy. From an order denying his motion for a further bill of particulars, defendant appeals.

<p>1. Ejectment—Title to Support—Evidence.</p> <p>A. subdivided land which he had mortgaged, and conveyed lot 4 in accordance with a map whereon it was designated as bounded on the south by lot 20, which was 90 feet wide, and fronted on the east. Afterwards another map was made, on which was indicated an alley 15 feet wide across the northern edge of lot 20, and a deed was executed making such alley appurtenant to lot 20 and certain other lots, but not to lot 4. On foreclosure of the mortgages, lot 20 was sold, the deed describing it as 75 feet wide, in accordance with the second map; and plaintiff acquired the title of the purchaser by mesne conveyances. Plaintiff also acquired the title, if any, of A. to the strip of land dedicated as an alley, which was abandoned as such, by mesne conveyances from A.’s son, to whom it was conveyed by A.’s assignee for the benefit of his creditors. Held, that plaintiff was entitled to recover such strip.</p> <p>2. Adverse Possession—What Constitutes.</p> <p>No title to the same was acquired by the possession, for less than 20 years, of one to whom the title to lot 4 had passed by successive conveyances.</p> <p>3. Witness—Competency—Title to Land op Deceased Grantor.</p> <p>The testimony of A.’s son as to conversations with his father, who was dead, in regard to the preparation of the maps, was not inadmissible because of the provision of Code Civil Proc. § 829, that a person through whom a party derives “his interest or title ” shall be incompetent as a witness “ in his own behalf or interest, or in behalf of the party succeeding to his title or interest, ” against “a person deriving title” through “a deceased person. ”</p>

Petition of John Newton, commissioner of public works, under Laws 1883, c. 490, and on behalf of the mayor, aldermen, and commonalty of the city of New York, for the appointment of commissioners of appraisal. From an order confirming the report of the commissioners, condemning certain lands for aqueduct purposes, Isaac Armstrong appeals.

Action by Rudolph A. Loewenthal against the Philadelphia Rubber Works on an agreement between plaintiff’s assignor, the L. & M. Rubber Company, and defendant, by which the aggregate profits of the two concerns were to be divided in a fixed, proportion. From an order denying plaintiff’s motion for a bill of particulars as to certain allegations in defendant’s answer, plaintiff appeals.

Application of Arthur L. Sardy for an order to compel John Todhunter, an attorney, to pay over money received by him in a professional capacity. From an order continuing motion to compel payment of the said money, Sardy appeals.

<p>a. Foreign Judgments—Actions Thereon. ,</p> <p>St. Colo. § 2900, limits actions of debt to six years from accrual of cause of action. Section 2529 makes a judgment a lien on real estate for seven years, but provides that thereafter it shall cease to be a lien as against bona fide purchasers, etc. Other laws of that state provide for revival of a judgment by filing a petition, and •declare that, if the petition be filed before the liens created by the original judgment have expired, all rights under the judgment shall continue. Held, that a Colorado judgment does not, at the expiration of the six years within which action could be brought thereon in that state, become a nullity incapable of forming the basis of an action in another state.</p> <p>33. Limitation of Actions—Nonresidents—Statutes of Other State.</p> <p>In an action on a foreign judgment, the statute of limitations of the forum governs, and not that of the place where the judgment was rendered.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by John H. Ming and another against Austin Corbin. From a judgment dismissing the complaint, and an order denying a motion for a new trial, plaintiffs appeal.</p>

Action by Gotthelf Pach and others against Nicholas Geoffroy, impleaded! with Arthur S. Geoffroy, to enjoin the carrying on of a business on certain premises with machinery causing vibration. Judgment for plaintiffs.

Action by Bichard D. Alliger against the Mail Printing Association for libel. Judgment for plaintiff. From an order denying motion for a new trial, on the ground of newly-discovered evidence, defendant appeals.

Action by Frank Donohue, administrator of Elizabeth Donohue, deceased, against Richard Meares and another. From an order denying his motion for a bill of particulars, Meares appeals.

Action by James H. Lusbie, administrator of Oakley B. Lusbie, deceased, against Bichard Meares and another. From an order denying his motion l'or a bill of particulars under Code Civil Proc. Í5 531, Meares appeals.

Action by John S. D. Manville against J. AVarren Lawton and others to recover damages for a fraud alleged to have been practiced by defendants in the purchase of shares of the capital stock of two corporations, which shares were paid for by plaintiff to defendant Lawton. From a judgment entered ón a nonsuit directed upon the close of plaintiff’s case, plaintiff appeals. Argued before Van Brunt, P. J., and O’Brien and Patterson, JJ.

Action by the Hecla Consolidated Gold Mining Company against William L. O’Neill to compel conveyance of property according to the terms of the trust deed. Broman interlocutory judgment sustaining a demurrer to the answer, and counterclaim therein, defendant appeals.

Exceptions from circuit court, New York county. Action by Mary A.'Potter against Thomas L. Ogden and others, executors, etc., of Samuel E. Lyon, deceased, on the bond of John W. Mills, as administrator. Complaint was dismissed, and plaintiff moved for a new trial, which was ordered to be heard on exceptions at general term in the first instance.

Action by T. Thomas Fortune against James Trainor for assault and battery and false imprisonment. Plaintiff had judgment, and defendant appeals.

Action by William H. Thomas and others against Henry A. Dickinson and others. From a judgment entered on a verdict for plaintiffs, and from an order denying motion fora new trial, defendants appeal.

' Action by the Hygeia Water Ice Company against the New York Hygeia Ice Company, Limited, to restrain defendant from the use of the word “Hygeia” in the corporate name. From a judgment dismissing the complaint the plaintiff appeals.

Action by Levi P. Morton against the mayor, alderman, and commonalty of the city of New York to recover for damage to property adjacent to defendant’s pumping station, resulting from the continuing jar and noise. From a judgment dismissing the complaint, plaintiff appeals.

Action by Augustus P. Dudley against the Congregation of the Third Order of St. Francis. From a decree of the special term dismissing the complaint and granting affirmative relief to defendant, plaintiff appeals.

<p>Set-Off—Claim not Dub—Insolvency.</p> <p>A debt from an insolvent, not due at the time of Ms making an assignment for the benefit of creditors, may be set off by the creditor against a debt due from him to the insolvent at the time of the assignment. Rothschild v. Mack, 42 Hun, 73, and Fera v. Wickham, (Sup.) 15 N. Y. Supp. 892, followed.</p>

Proceedings were instituted by the department of public works, for and on behalf of the mayor, etc., of the city of New York, for the opening of 160th street between 11th avenue and Kingsbridge road. From an order confirming the report of commissioners of estimate and assessment, Charles .Banks and others appeal.

• ' • Action by Mary Ann Hawver against Edmund B. Bell and Walter L. Bell, executors of Calvin H. Bell, deceased, for conversion of certain chattels. From a judgment entered- on the verdict of a jury, and from an order denying a motion for a new trial on the minutes of the trial judge, defendants appeal.

Action by Henry H. Williams against Isaac R. Clements, executor of Henry Williams, deceased, on a disputed claim against the estate of deceased. Prora a judgment for plaintiff, entered on an order confirming the report of a referee, defendant appeals.

' Appeal from circuit court, Clinton county. Action of replevin by William B. Weaver against Jehiel B. White, sheriff, etc. From a judgment for defendant, plaintiff appeals.

Action by Julia A. Shaw against Agnes C., Amanda I., and Carolan O’B. Bryant, for board and lodging and money advanced. From a judgment for plaintiff, entered on report of a referee, defendants appeal.

<p>Appeal from circuit court, Ulster county.</p> <p>Action by Mary Van Ostrand against the Wallkill Valley Bailroad Company. From a judgment for plaintiff, defendant appeals.</p>

Action by William H. Finley by Christopher Finley, his guardian, against the Hudson Electric Bailway Company. Plaintiff was a boy eight years old, and was injured in getting on defendant’s car, where he was invited by thp motor man as a compensation for service in pushing back a switch tongue-on the road. From a judgment for plaintiff, defendant appeals.

Application by Michael Lane for a writ of mandamus to Benjamin Case and others, town auditors. From a judgment awarding a peremptory mandamus, defendants appeal.

Action by Ferdinand C. Bamman against Theresia Binzen to compel the specific performance of a covenant in a lease. From a judgment dismissing the complaint, the plaintiff appeals.

Action by George M. Beebe against the board of supervisors of Sullivan county and another to restrain payment of an illegal claim out of county funds. From a judgment for defendants, plaintiff appeals.

Action by Mary S. Douglas against Fred H. Smith, as assignee, and another for an accounting. From an order directing defendant assignee to pay referee’s fees he appeals.

Action by James Thompson, Jr., against Isaac M. Harwood and Frederick Harwood for damages for assault and battery and false imprisonment. From an order changing the place of trial from Rensselaer county to Kings county the plaintiff appeals.

Action by Loretta H. Randall against the National Ice Company of New York. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>1. Bridges—Liability for Defects—Presentation of Claim.</p> <p>Plaintiff was injured by a defect in a bridge August 14,1890. An act was passed in June, 1890, requiring all claims for such injuries to be presented to the town supervisor within six months after the accident, the act to take effect March 1, 1891. Held, that the act was to be construed as if passed March 1,1891, and that it had no application to plaintiff’s case.</p> <p>2. Same—Notice to Commissioner—Evidence.</p> <p>The accident in question was caused by the want of side railings on the bridge, and it had been in this condition for four years. Held, sufficient to charge the commissioner of highways with notice of its condition, and to dispense with proof of actual notice to him, whether he was or was not the particular commissioner in office at the time of the accident.</p> <p>8. Same—Amount of Funds—Burden of Proof.</p> <p>Plaintiff could not be required to show a sufficiency of funds in the hands of the commissioner to repair the bridge, or power to obtain them. It was incumbent on defendant to establish a want of such funds.</p> <p>4. Same—Evidence.</p> <p>The commissioner stated that he had received certain sums for the repair of bridges, and had expended them for that purpose, but it did not appear that he had no power to obtain more money, and he made no effort to procure more. He received $100 shortly after the accident from the supervisor. Held insufficient to justify the excuse of want of funds.</p>

Action by John De Witt Feltz and Harriet Wagner, administrators de bonis non of Isaac H. Watson, deceased, against John A. Schultes and another, executors of Mary Watson, deceased, late surviving executrix of Isaac H„ Watson, deceased. From a judgment for plaintiffs, defendants appeal.

Action by Sidney E. Maders, receiver, against William I. Whallon and others to set aside a fraudulent conveyance. From a judgment for plaintiff, defendants appeal.

Certiorari on the relation of Jehiel B. White, sheriff of Clinton county, against the board of supervisors of Clinton county, to review the action of -defendants in rejecting relator’s account.

Application by the people of the state of New York, on the relation of Grove Webster, for a writ of habeas corpus against William Van Tassell, sliériff of Ulster county. From a judgment for relator, defendant appeals.

<p>1. Bicycles—Collision with Vehicles—Law oe Boad.</p> <p>Plaintiff, while riding on a bicycle at the rate of three miles an hour, and keeping on the right of the road, collided with defendant, driving a buggy at a rate exceeding six miles an hour, and was injured. Held, that plaintiff was not guilty of contributory negligence in failing to avoid the collision by turning to the left, he having a right to assume that defendant would obey the law, and turn to the right, (plaintiff's left.)</p> <p>% Same—Want of Judgment.</p> <p>Even if plaintiff was mistaken in not turning to the left, and if by so doing he could have avoided .in jury, having been called on to act suddenly in a dangerous position, his mistake could not be deemed negligence.</p> <p>8. Action fob Personal Injuries—Damages—Evidence.</p> <p>The court erred in allowing plaintiff to show what he paid out for doctor’s bills, medicine, and for repairs to his bicycle, without showing the value of such items.</p>

<p>.Appeal from surrogate’s court, Saratoga county.</p> <p>Application by Clarence G. Carr, executor of John T. Carr, deceased, to reopen a decree finally settling the accounts of said John T. Carr as executor of the estate of Susan B. Tompkins, who died in 1885, leaving a will, by the-last clause of which she appointed John T. Carr her executor, and directed! that “he be paid reasonable and liberal compensation for his services, as welB as his fees allowed by law.” Carr, the executor, qualified and executed tli® will, and applied for a judicial settlement of his accounts; and on the 2d day of July, 1889, a decree was duly made and entered by said surrogate, which finally and judicially settled his accounts as such executor, and allowed him for his commissions the sum of $138.32, and for his costs and disbursement® the sum of $50, and further, “for his additional compensation and other expenses under the will, the sum of $250.” Thereafter, John T. Carr dieds and on the 28th day of November, 1891, more than two years after said final decree was signed and entered, Clarence G. Carr, as his executor, presented! to said surrogate a petition signed by W. B. French, which stated, in substance, that said John T. Carr had rendered services for the estate of said? Susan B. Tompkins, for which he had not been paid, to the amount of over $3,000; that said $250 allowed in said decree as additional compensation was-not intended as a final adjustment and allowance of the claim of said Joint. T. Carr; and that, if the language used be so construed, it was a mistake-on the part of the attorney who drew the decree,—and the petition prayed! that said decree be opened to permit said claim to be proved. The application was granted on petition and answer, without proof, and the administrator c. t. a. and heirs at law of Susan B. Tompkins appeal.</p>

Action by Catharine Cook against the Long Island Railroad Company. From a judgment rendered on a verdict for plaintiff, and an order denying a motion for a new trial, defendant appeals.

Exceptions from circuit court, New York county. Action by George W. Curtis against the Wheeler & Wilson Manufacturing Company for money due under an alleged contract. Complaint was dismissed, and plaintiff moved for a néw-'trial, which was ordered to be heard on exceptions in the first instance at- general term.

•Action by John W. Van Dyke against George D. Clark to recover a. colt claimed by plaintiff under a contract by which plaintiff was to be allowed to select a colt from such as should be foaled by defendant’s breeding mares and sired by plaintiff’s stallion, as compensation for the services of such stallion, such stallion to be made four months after the foaling of the colts. From a judgment for defendant, plaintiff appeals.

<p>1. Taxation—Erroneous Assessment—Certiorari.</p> <p>Laws 1889, c. 463, § 19, which provides that “the comptroller may at any time revise and readjust any account theretofore settled against any corporation hy himself, ” does not authorize him to revise his decision refusing to resettle an account theretofore settled by him; and a corporation, having failed to obtain a certiorari to review this settlement within 30 days after notice thereof, as required by Laws 1885, c. 501, cannot entitle itself to such writ by applying to the comptroller to review his decision.</p> <p>2. Same—Discretion of Comptroller.</p> <p>Even if the comptroller had the power, under section 19, to entertain and consider on its merits a second application to revise the tax, he was not bound to do so; and certiorari will not lie to review his determination in that regard.</p>

<p>Pleading—Amendment—Stipulations—Reduction op Judgment.</p> <p>Defendant set up a note by way of counterclaim, which the jury rejected as being not genuine, and the court awarded defendant a new trial, unless plaintiff should stipulate to allow such note as a payment, and serve an amended reply, setting up failure of consideration of the note, which plaintiff did, whereupon the court entered judgment in his favor, less the note. Held error, the jury having had no opportunity to pass on the issue formed by the amended reply.</p>

<p>TL Conversion op Goods—Mistaken Delivery—Evidence.</p> <p>Goods sold to C. & 8., plaintiff’s assignors, were by mistake delivered to defendants, who refused to give them up on notice and demand. Meld a conversion by defendants, notwithstanding delivery to them of a memorandum of the goods.</p> <p>2. Same—Bights op Assignor—Counterclaim.</p> <p>Plaintiff being the assignee of a claim merely, there could be no judgment against him for a claim against the assignors; and, no counterclaim having been set up in the answer, there could he no recovery against him for that reason also.</p>

Action by Alfred W. Young against Parke Godwin to enforce the liability of defendant for signing a false statement of the condition of a stock company. From a judgment for plaintiff, defendant appeals.

Action by Jessie Woods against Parke Godwin. From a judgment for plaintiff, defendant appeals. The question involved in this case is the same as that ■decided in the case of Young v. Godwin, 19 N. Y. Supp. 656, which see.

<p>Appeal from first district court.</p> <p>Action by SamuelP. Ferree against Edward Ellsworth and another to recover on a contract for advertising. From a judgmentfor defendants, plaintiff appeals.</p>

Action by Elmira Fulton against the Metropolitan Life Insurance Company to recover premiums paid on a void insurance policy. From a judgment for plaintiff, defendant appeals.

<p>Appeal from municipal court.</p> <p>Action by Henry Knauss against Andrew Taylor. From a judgment for plaintiff, defendant appeals.</p>

<p>Citt Ordinance—Posting Flagmen—Service of Notice.</p> <p>Under a city ordinance requiring railroad companies to station a flagman at crossings within 10 days after notice from the council so to do, but providing no method of service, a personal notice must be given, and therefore proof of deposit of a notice in the mails is not sufficient.</p>

<p>Appeal from trial term.</p> <p>Action by S. Fleet Speir against the city of Brooklyn. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Clinton Stephens against Frederick C. Hockemeyer. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Matthias Lehn against the city of Brooklyn. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by George McCann against the Kings County Elevated Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Solomon May against the city of Brooklyn. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by Harrie Bulkley against Edmund Kimball and others. From a judgment for plaintiff, defendant Kimball appeals.</p>

<p>Appeal from special term.</p> <p>Action by Michael Moran against Catherine Moran. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Mary Louise Race against the Union Ferry Company of New York. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Municipal Corporations—Ordinances—Crossing Sidewalks with Team.</p> <p>An ordinance of the city of Brooklyn that “no person shall drive, hack, or lead any horse or cart or wheel carriage on the footpath or sidewalk of any street or avenue,” does notprohibit the carting of dirt from excavations across the sidewalk. 3. Same—Validity op Ordinance—Want op Penalty—Amendment.</p> <p>The ordinance in question, having provided no penalty for its violation, as required by the city charter, could not be enforced, and, being nonenforceable, a subsequent amendment thereto, allowing persons making excavations to obtain a permit to cross the walks with teams on depositing $50, was void, and a mandamus to compel the issuing of such permit was properly denied.</p>

<p>Appeal from special term.</p> <p>Action by James M. Johnson and another against Samuel F. Cowdrey and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from trial term. .</p> <p>Action by Moses May against Henry Traphagen. From a judgment foie plaintiff, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Thomas Thompson against George E. Libbey and Frederick E. Keese to recover damages for personal injuries. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Frank E. Blackwell against John G. Bainbridge and others. From judgment for plaintiff, defendants appeal.</p>

.Action by George N. Manchester and another against Thomas C. Van Brunt and another to recover on a negotiable note. The defense of Van Brunt, indorser, was, among other things, that plaintiff had extended the time of payment of the note in consideration of part payment by the maker.

<p>Conversion oe Check—Evidence.</p> <p>In an action for the conversion of a check drawn by the owner of a building to defendant, and by him indorsed payable to the order of plaintiff, it appeared that the check was intended for plaintiff, contractor for the framework of the building. Defendant refused to deliver the check, on the ground that he was kept out of money due him by plaintiff’s failure to put in a tier of beams. There was evidence that the beams were not put in because defendant had not carried up the walls high enough. Held, that a verdict for plaintiff should not be disturbed.</p>

<p>Appeal from trial term.</p> <p>Action by Sarah Aaronson against James McCauley and one Sigel. From a judgment for plaintiff, defendant Sigel appeals.</p>

<p>1. Action against Assignee—Personal Liabilttt—Evidence.</p> <p>Plaintiff sold and delivered a cargo of coal to a corporation, which, on the next day, executed a general assignment to defendant for the benefit of creditors. Plaintiff told defendant he intended to bring replevin for the coal, on which defendant verbally agreed to take the coal himself at 84.35 per ton. Held, the assignment being void, that an action for the price of the coal was properly brought against the assignee in his personal capacity.</p> <p>■2. Same—Statute of Frauds.</p> <p>The transaction by the assignee was an original undertaking, and therefore not within the statute of frauds.</p>

<p>1. Jurisdiction of Citt Court of New York—“Contracts” — Foreign Judgment.</p> <p>The decree of a court of another state directing payment of alimony is a “contract, " within Code Civil Proc. § 316, fixing the maximum limit of the jurisdiction of the city court of New York at $2,000, where the action is brought on a “bond or other contract.</p> <p>.2. Action on Foreign Judgment—Sufficiency of Complaint.</p> <p>In an action on a foreign judgment, the complaint alleged the recovery of the judgment, that it was rendered by a court of general jurisdiction, and that process was personally served on the defendant. Held sufficient, under Code Civil Proc. 481, which provides that the complaint shall set forth a plain and concise statement of the facts, without unnecessary repetition.</p>

Action by Carrie W. Bell against James W. Good. From an order resettling an order denying defendant’s motion to vacate a judgment by default, defendant appeals.

<p>1. Incoming Partners—Assumption op Liabilities—Newspaper Notice.</p> <p>In an action against C., as a partner of the firm of H. & C., successors to the firm of H. & Co., to recover a debt due from the old firm, the court erred in excluding a newspaper advertisement signed by H. & C., stating that they had assumed all the liabilities of H. & Co.</p> <p>2. Same—Consideration.</p> <p>The transfer of the interest of the retiring partner to the new partner, C., and the receipt of the assets of the old firm, was a sufficient consideration for the assumption of the debts of the old firm.</p> <p>3. Same—Statute op Frauds.</p> <p>The agreement in question was not within the statute of frauds; the same being not to pay on the default of H. & Co., but to pay at all events.</p>

<p>Gifts inter Vivos—Delivery of Pass Book—Evidence.</p> <p>H. opened an account with a savings bank, as follows: “H„ for her daughter Kate. ” Afterwards she changed it to “H. or sister J., ” so that J. might draw the money. H. died January 22d. J. died a week after, and the bank book was found among the effects of E., another sister of H., who died about a week after J., and with whom J. resided at the time of her death. Held sufficient to justify a finding of a delivery of the bank book by H. to J., and that J.’s administratrix was entitled to the deposit.</p>

<p>Appeal from jury term.</p> <p>Action by Jonathan D. Condict against Jane H. Cowdrey. From a judgment for plaintiff, defendant appeals.</p>

<p>Pleadings—Variance—Slander.</p> <p>Where a complaint for slander alleged that defendant had said plaintiff robbed him of $400, and the evidence at the close of plaintiff’s case warranted an in ference only that defendant had said plaintiff robbed him of $1,300, plaintiff could amend so as to conform his pleadings to the proof; Code Civil Proc. § 539, providing that a variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by George T. FTewhall against William H. Appleton and others to recover commissions on sales of books. From a judgment for plaintiff, defendants appeal.</p>

Action by Mary McKay Greenwood and others, executors, etc., against the Manhattan Bail way Company and another, defendants. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from special term.</p> <p>Action by Catherine S. Hunter against the Manhattan Bailway Company</p> <p>and another. From a judgment for plaintiff, defendants appeal.</p>

' Appeal from jury term. Action by Kate Flynn, administratrix, against George Harlow, to recover damages for the death of plaintiff’s intestate. From a nonsuit, plaintiff appeals.

<p>Appeal from jury term.</p> <p>Action by George H. Studwell and another against the Mutual Benefit Life Association of America. From a nonsuit, plaintiffs appeal.</p>

Exceptions from jury term. • Action by Frederick Seggerman and others against Napoleon Valentine and others. The court directed a verdict for plaintiffs, and defendants now move for a new trial on exceptions ordered to be heard in the first instance.

Action by Samuel I. Knight, as president, etc., against Sackett & Wilhelms Lithographing Company. From a judgment dismissing the complaint, after trial of the issues by a judge without a jury, and from an order denying plaintiff’s motion for a new trial, plaintiff appeals.

Certiorari by Bichard Burns to review the decision of Henry D. Purroy and others, constituting the board of fire commissioners, convicting relator of misconduct as a fireman and dismissing from the force.

Action by Frederick Michel and Walton Townsend against James B. Cole-grove. From a judgment of the special term dismissing the complaint, plaintiffs appeal.

Action, by Frederick Michel and Walton Townsend against James B. Cole-grove. From an order of the special term of March 24, 1892, denying plaintiffs’ motion to set aside a judgment of the special term and to suppress the deposition of a witness, plaintiffs appeal.

<p>Leases—Vebbal Conditions—Pabol Evidence.</p> <p>Plaintiff took a written lease of the upper floors of a building, the only access to which was by means of a hall and stairs, on the verbal condition that defendant would not rent the lower floor for a saloon, and would not permit a door to be cut in the wall between the hall and lower floor. Held, in an action to abate a door cut in violation of such conditions, that the court erred in excluding evidence of the paroi condition, since the same formed part of the consideration of the lease.</p>

Action by John Et. Caswell against Rowland N. and John C. Hazard for an accounting. From a judgment for plaintiff on the report of a referee, defendants appeal.

Certiorari in the name of the. people, on the relation of the Consolidated Gas Company of New York, against Theodore W. Myers, William H. Clark, and Frederick Smyth, composing the board of revision and correction of assessments of the city of New York, to review proceedings in an assessment, for paving Sixteenth street.

Action by Eugene O.’Con nor, carrying on business under the name and style of George A. Leavitt & Co., against William C. Jones, to recover damages for the wrongful conversion of three promissory notes made by plaintiff. Plaintiff, on affidavit, obtained an order for defendant’s arrest. From an order denying defendant’s motion to vacate the order of arrest, defendant appeals.

In the matter of proving the last will and testament of Rose Ann Curry, deceased, as a will of personal property. From an order directing the executor, Arthur J. Delaney, to pay certain costs, Delaney appeals.

Action by Charles H. Bunn against Margaret M. Lett to recover damages on a contract. From a judgment in favor of plaintiff by direction of the court the defendant appealed.

Action by William J. Best, as receiver of the National Trust Company of New York, against the Davis Sewing Machine Company and others, to recover on certain bonds of defendant company. Judgment on verdict directed for defendant, and plaintiff appeals.

Action by Joaquin Sanchez against Andrew G. Dickinson to recover a balance due on an account. Prom an order precluding the defendant from giving evidence on the trial of a certain account set up in his answer, copies of which, after due demand, he had refused to serve upon the plaintiff, the defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by John 0. Bundy against Henry J. Newton upon a bond. Judgment for plaintiff. Defendant appeals.</p>

Action by John Flanagan against John O’Brien and Heman Clark for the conversion of certain personal property alleged to belong to plaintiff. From a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendants appeal.

Action by Amelia Bernstein against James Healis to recover a payment made on a contract of sale of a house and lot. From a judgment entered on .a verdict directed in favor of plaintiff, defendant appeals.

Action by Abraham S. Friedland against Lewis Myers for breach of a covenant of quiet enjoyment in a lease. From a judgment entered on a verdict fo'r plaintiff, and an order denying a motion for a new trial, defendant appeals.

Action by Charles Smith and others against the Seattle, Lake Shore & Eastern Bailway Company. From an order granting a motion for a discovery and inspection of its books, defendant appeals.

Application of David B. Hyde to be appointed trustee of the estate of Ab- bie W. Russell, deceased. Appeal from decree of surrogate appointing said Hyde trustee.

Action by John J. McHugh against the New York Elevated Railroad Company and the Manhattan Railway Company to recover damages sustained by reason of the construction and operation by the defendants of lines of railway over and upon a public street in front of plaintiff’s premises. From a judgment in favor of plaintiff on the report of a referee, both parties appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Albert J. Beckley against Winfield S. Chamberlin. From an order denying a motion to compel plaintiff to receive an unverified answer, defendant appeals.</p>

Action by James Saxton against the New Tork Elevated Railway Company and the Manhattan Railway Company to enjoin defendants from operating their lines of road over and upon the public street in front of plaintiff’s premises, and for damages. From a judgment entered upon the report of a referee, plaintiff and defendants appeal.

Action by Safety Electric Construction Company against Henry Creamer for an accounting, in which an injunction is asked against enforcing a forfeiture pendente lite. From an order continuing the injunction the defendant appeals.

Action by Daniel E. Sickles, sheriff, against David A. Sullivan, as receiver of Bosenberg & Baker, to determine priority of claim to certain funds. J udgment for plaintiff. Defendant appeals.

Action by Eugene H. Levy against the Beekman Publishing Company to recover damages for the breach of a contract of employment. Prom a judgment entered on a verdict in favor of plaintiff, the defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Orviia Turenne against Wilbur F. Washburn. Fromajudgment dismissing the complaint, plaintiff appeals.</p>

Action by Charles A. Dunn against George H. Lewis to recover damages for libel and slander. From an order changing the place of trial from the county 'of New York to the county of Erie, plaintiff appeals.

<p>Contract of Agenot—Interpretation—Termination.</p> <p>Where a contract of agency provides that defendants shall pay a certain royalty per annum “for the first three years of this license, ” but that they may terminate the agreement at the end of the first year by giving three months’ notice, and further provides for its termination by plaintiff at the end of three years, defendants cannot terminate the contract before the expiration of the third year, if they fail to terminate it at the end of the first.</p>

Action by Lorenzo Guli against Joseph I. West to recover damages for an alleged breach of contract for the purchase of real estate. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals.

<p>L Mandamus to Mayor—Neglect to Enforce Resolution of Council.</p> <p>Laws 1883, c. 398, tit. 4, §§ 9,17, provide that the mayor of Albany shall enforce the ordinances of the city and perform the duties thereby prescribed. Section 14 of title 3 gives the common council power as commissioners of highways to remove encroachments on the public streets. Held, that a resolution of the common council requesting the mayor to direct the city engineer to cause the removal of a building encroaching on a street made it a positive legal duty for the mayor so to do, and his compliance with the resolution could be enforced by mandamus.</p> <p>2. Same—Soccessob in Office.</p> <p>Under Laws 1883, e. 298, tit. 5, §§ 6,8, providing for the succession of the executive functions in case of a change in the incumbent of the office of mayor of Albany, an action for a mandamus to compel the performance by the mayor of an official duty without regard to the name of the mayor does not terminate by reason of a change of mayor, but continues to act on the office, and attaches to the new incumbent thereof.</p>

<p>Appeal from court of sessions, Montgomery county.</p> <p>Indictment against James ICehoe for grand larceny. Defendant was convicted, and appeals.</p>

Action by George C# Preston against Samuel R. Hawley to recover rent for a factory which plaintiff had purchased of defendant, but which defendant, by permission of plaintiff, used for the storage of certain goods, without any agreement as to time or compensation.

Lawrence county. Action by Alvin M. Aldrich and others against Frank L. Davis. Defendant appeals from an order made by a special surrogate in supplementary proceedings, adjudging him guilty of contempt in disposing of certain goods in violation of the surrogate’s order.

Action by G. Weld Thomas, who sues as well in behalf of other bondholders, against the New York & Greenwood Lake Railway Company, Abram S. Hewitt, John King, and others, to require the defendants to account for all income and earnings of the defendant railway company, and pay the amount into the hands of a special receiver to be appointed by the court, to be disposed of under direction of the court for the benefit of the plaintiff and all other bona fide holders of income…

<p>Appeal from special term, Franklin county.</p> <p>Action of trespass by Orrando P. Dexter against Warren Joseph Alfred. From judgment on an order overruling a demurrer to the answer, plaintiff appeals.</p>

Action by Elizabeth C. Kinmouth against William McDougall for injuries-caused by a vicious ram belonging,to defendant. From a judgment for plaintiff, entered upon a referee’s report, defendant appeals.

■ Certiorari on t he relation of Daniel E. Sutliff against the board of supervisors of Fulton county. ' From an order requiring defendant to make return to the writ without previous payment of its fees, defendant appeals.

' Appeal from circuit court, Rensselaer county. Action by Eliza Babcock, as administratrix of the estate of Frederick Bennett, deceased, against the Fitchburg Railroad Company, for damages for the-death of plaintiff’s intestate, caused by defendant’s alleged negligence. From a judgment for defendant, entered upon an order dismissing her complaint, plaintiff appeals.

Action by William Bookheim against Thomas Alexander and others. From a judgment for plaintiff entered on a verdict directed by the court, Alexander appeals.

<p>Appeal from surrogate’s court, Rensselaer county.</p> <p>Norman Carpenter, as executor, offered for probate the will of Roxalana Williams, which was objected to by Emery Hall. From a decree admitting it to probate, contestant appeals.</p>

Joseph Davis was indicted for grand larceny in the second degree and convicted. He appeals. The following is a portion of the charge excepted to: “Circumstantial evidence cannot very well lie. It is quite as safe for a jury to convict on circumstantial evidence, when a proper case is given, as it is on direct, positive-proof. The direct, positive proof may be false; the circumstances cannot be false.

<p>Foreclosure op Mortgages—Confirmation op Sale—Objection Waived.</p> <p>No motion ever having been made by defendant to set aside a final judgment directing foreclosure of a mortgage and judgment for deficiency, if any, against him, he could not object on appeal that no order confirming a report of sale nor any further judgment in the cause was ever entered.</p>

<p>Appeal from special term, New York county.</p> <p>Action by John Meredith Jones and others against Henry J. Newton, as assignee, etc. From an order correcting judgments by striking out certain recitals therein defendant appeals.</p>

<p>Appeal from circuit court, Montgomery county.</p> <p>Action by Eli Van Brocklen against George B. Smeallie. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action by Jens Kaare against the Troy Steel & Iron Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Louise F. Mars, administratrix of John H. Mars, deceased, against the Albany Savings Bank, to recover a deposit. From an order denying a motion for the substitution of parties defendant, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by John B. Owen against Owen Matthews and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from trial term.</p> <p>Action by Allen B. Pharo against Beadleston & Woerz to recover damages for failure to accept goods sold. From a judgment for plaintiff, defendants appeal.</p>

Action by Oscar Y. Babcock against Fay Smith. The action was commenced by the personal service of the summons and a copy of the complaint upon the defendant.

<p>Appeal from district court.</p> <p>Action by Horton A. Chapin against Louis M. Allen. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Central national Bank of the City of New York against Leonard D. White and Charles O. Morris. From a judgment dismissing the</p> <p>complaint, plaintiff appeals.</p>

Action by the Societa Italiana di Beneficenza, assignee of the United Italian Societies of the city of New York, against Catiiarine Sulzer, to recover the sum of $400, which defendant agreed to pay said united societies if they would use her “park” for picnic purposes, she to have the privilege of furnishing them with wines and refreshments, they agreeing not to bring their own refreshments and wines with them to the grounds.

Suit by Frank Foley against the Western New York & Pennsylvania Railroad Company to recover upon a quantum meruit for services as a brakeman. Judgment for plaintiff. Defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Mary Beyers against Dwight A. Hodge and Brick A. Hodge on a contract for services rendered. J udgment for plaintiff. Defendants appeal.</p>

<p>Appeal from municipal court.</p> <p>Action by Samuel J. Kirchman against Eva P. Lapp for conversion. Judgment for plaintiff, and defendant appeals.</p>

Action by Louisa M. Rauenstein against the New York, Lackawanna & Western Railway Company for damages caused by the construction of an embankment so as to obstruct the way to plaintiff’s property. From a judgment entered on a verdict directed for defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Valda M. Canfield against the New York Central & Hudson Biver Baiiroad Company to recover for injuries received by plaintiff while crossing defendant’s track. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, defendant appeals.

<p>Public Statutes—Notice—Narrowing Streets—Covenant of Quiet Possession.</p> <p>Laws 1850, c. 116, extending the lot lines of all lots on certain streets 16% feet towards the center of the streets, so that the streets should be contracted from 99 feet in width to 66 feet, and empowering the city council to authorize the use of the 16% feet strips for courtyards, but forbidding the erection of buildings thereon, is a public statute; and one who takes a deed of a lot on one of said streets referred to in the deed as four rods wide is presumed to know of the limitation on his rights, and is therefore estopped from maintaining an action for breach of covenant of quiet and peaceable possession on account of such limitation.</p>

<p>Appeal—Bond—Liability op Surety.</p> <p>Code Civil Proc. § 3050, providing that an undertaking given to stay execution pending appeal shall be conditioned that “if the appeal is dismissed, or if judgment is rendered against the appellant, in the appellate court, and an execution issued thereupon is returned wholly or partially unsatisfied, the sureties will pay the amount of the judgment or the portion * * * unsatisfied, ” though a reenactment of section 356 of the old Code, differs therefrom in limiting the liability of the surety to a judgment recovered in the appellate court; and hence the surety, in an undertaking drawn in substantially the words of the statute, is not liable for the amount of a judgment recovered against his principal on a new trial in the court below ordered by the appellate court.</p>

Action by the city of Buffalo against Ernest W. Clement to recover penalty for violation of an ordinance prohibiting the placing of any material in the streets. Judgment for defendant. Plaintiff appeals.

Action by Charles M. Preston, as assignee of William B. Fitch, against Reed Fitch, as sole surviving executor of the last will of Simeon Fitch, deceased, and others, to recover such amount as shall be found due him as surviving partner of the firm of Simeon & William B. Fitch, for expenses incurred and moneys advanced by his assignor and himself in protecting the interest of the late firm of S. & William B. Fitch in a claim or demand described in an agreement made by Simeon…

<p>Appeal from special term, New York county.</p> <p>Action by Wilfred F. Mills against Edmund ,T. Smith, executor, and others, for the amount of a legacy alleged to have been unlawfully appropriated by and with the consent of defendants. From a judgment dismissing complaint, plaintiff appeals.</p>

<p>1. Ejectment—Evidence of Title—Common Grantor.</p> <p>By recorded deed, May 18,1863, H. B. and wife conveyed land in dispute to defendant, from whom, by mesne conveyances, defendant’s husband became owner. He devised to defendant a life interest. By recorded deed, July 8, 1853. J. S. and wife conveyed to W. A. C., from whom, by mesne conveyances, title vested June, 1869, in H. B., who took possession and occupied it, but conveyed to plaintiff before suit. Held, in an action of ejectment, that, as both parties derived title from a common grantor, plaintiff was not compelled to trace his record title to the state, and a verdict in his favor was authorized.</p> <p>3. Same—Possession under Adverse Claim.</p> <p>The jury was authorized to find that H. B. had actual possession of the land when he conveyed, and his grant was not repugnant to 4 Rev. St. (6th Ed.) p. 3453, § 147, providing that “ any grant of land shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of any person claiming under title adverse to that of the grantors. ”</p>

John M. ¡D. Fanshawe was indicted for arson in the first degree, and convicted. From judgment of conviction, and from orders denying his motions for arrest of judgment and a new trial, he appeals.

Application by James M. Patterson against Edward Reed for writ of habeas corpus. Held: and the relator was returned thereto as delinquent in not attending certain specified drills and parades; that it appeared to the satisfaction of such court that the relator was a duly-enlisted member of one of such companies, and that no sufficient excuse was presented for the delinquency charged against him; and that the court…

Action by Cunigunda Listman against John Hickey to recover the amount paid on an agreement to convey real and personal property, and counsel fees- and disbursements expended by plaintiff in examining title thereto. From a judgment entered on a verdict directed for plaintiff, and from an order denying his motion for a new trial, defendant appeals.

<p>Ras Judicata—Parties.</p> <p>Where a judgment creditor of one who has made an assignment for the benefit of creditors obtains a decree setting aside the assignment, appointing a receiver, and ordering an accounting, such decree and proceedings thereunder do not bind creditors other than the one at whose instance the decree was granted.</p>

Action by John J. Hannahs, in behalf of himself and other stockholders of the Hammond Typewriter Company, against. James B. Hammond and the-Hammond Typewriter Company. Defendants demur to the complaint formisjoinder of causes of action, defect of parties, and insufficient statement of facts.

Action by Carrie Adler against the Order of American Fraternal Circle of Baltimore City on a contract of insurance. Defendant moves to vacate an attachment allowed therein. The affidavit avers that defendant is a foreign corporation, and that it insured plaintiff against sickness..

Action by Augusta Bogardus against Edwin Young, executor of Thomas Cornell, deceased. From a judgment.for plaintiff, entered on the report of a jeferee, defendant appeals.

Action by Emily 0. Butler and others against Andrew H. Green and others, as executors and trustees of and under the last will and testament of William B. Ogden, deceased, and Marianna B. Ogden and others, claiming that plaintiffs are entitled to the proceeds of certain real estate situated in, states other than New York, of which said Ogden died seised, and which were sold under provisions of said will, and asking that said trustees and executors be required to account for…

Action by Robert Dansinger and James H. Vandenburgh against Edward C. White to recover damages for conversion of ice, and to enjoin the defendant from further converting and removing ice claimed by plaintiffs. From a judgment entered on the report of a referee, dismissing the complaint, the plaintiffs appeal.

Action by Dodge against Lawson and others to recover the sum of $4,545.55. Defendants move that Charles W. Gould, assignee of Field, Lindley, Weichers & Co., be substituted in their place as defendant, under Code Civil Proc. § 820. According to the complaint, plaintiff gave to Field, Lindley, Weichers & Co. certain negotiable bonds as collateral security. Field, Lindley, Weichers & Co., without plaintiff’s knowledge or consent, delivered them to defendants as security.

<p>Action by Mary G. Sigel against Budolph E. Sigel for divorce. Plaintiff moves for settlement of issues for jury.</p>

Action by George W. McLean, receiver of taxes, against the Julien Electric Company. Plaintiff contends that the answer is frivolous, and moves for judgment on the pleadings on that ground. The answer admitted the allegation of the complaint that defendant was a domestic corporation, but denied the allegation thereof that defendant derived income from its capital.

Certiorari on the relation of one Connor to review the action of Henry D. Purroy and others, as fire commissioners of the city of New York. ■ Respondents move to quash on the ground that it was not granted and served within the time prescribed by Code Civil Proc. § 2125.

<p>Appeal from trial term.</p> <p>Action by Benjamin Croner against Samuel F- Cowdrey and others, defendants. From a judgment for defendant Cowdrey, plaintiff appeals.</p>

<p>Action by David Conover against W. F. Lennon.</p>

<p>Action by Robert W. Drummond against Frank L. Fisher.</p>

<p>Action by Humber 121 Madison Avenue (a corporation) against John C. Osgood.</p>

<p>Action by Alexander McSorley against James A. Faulkner.</p>

<p>Appeal from city court, general term.</p> <p>Action by John J. Lew against Stanley Cohen. For opinion of city court, see 18 N. Y. Supp. 155.</p>

Action by Margaret Ball, an infant, against Jeremiah Horrigan, for false imprisonment. Plaintiff was a girl of humble condition, 16 years old, and. recovered a verdict for $450. Defendant appeals.

<p>Vendor and Vendee—Marketable Title—Foreclosure by Advertisement—Want oe Notice.</p> <p>A purchaser at a foreclosure sale by advertisement, made without notice to the personal representative of the deceased mortgagor, as required by Laws 1844, c, 346, acquired a good title, such as a purchaser from his successor in title will be required to take, where there was no personal representative to whom such notice could have been given, if the proceedings in all other respects conformed to the statute.</p>

Action by the Equity Gaslight Company against Ferdinand McKeige to compel defendant to surrender for cancellation certain shares of stock deposited with him, to be delivered on condition to third parties. From a judgment for plaintiff, defendant appeals. Affirmed.

Petition by James J. Whalen for writs'of habeas corpus and certiorari, .and application for discharge from custody of A. A. Brush, warden of Sing Sing prison. From an order dismissing the writ of habeas corpus the petitioner appeals.

Action by Edward S. Stokes against John W. Mackay and another. From a judgment for plaintiff, directed by the court, and from an order denying defendants’ motion for a new trial, they appeal.

At chambers. Charlotte Ewer, having been arrested for permitting.her seven-year-old daughter, Mildred Ewer, known as “La Eegaloncita,” to appear as a dancer on the stage, obtained writs of habeas corpus and certiorari. The people moved to dismiss the writs.

<p>Action by Andrew C. Bonnet and George Landt against Simon Babbage to-compel specific performance of a contract to convey land. Judgment for defendant.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Henry W. Sage and others against Andrew E. Culver and others. Prom an order vacating an order for the examination of defendants before trial, plaintiffs appeal.</p>

Dwight Webster Stoddard was convicted under an indictment for forgery in the second degree, and appeals. The indictment alleged that defendant forged the name of Mary E. Mack to a note dated October 19, 1888, for $400. A number of witnesses testified that, in their opinion, the signature on the note was the genuine one of complainant, which she denied.

<p>Libel—Sufficiency oe Complaint.</p> <p>Defendants published in their newspaper a charge that plaintiff, when she was ■the wife of H., was detected by her husband in a room at an hotel with one G.; that they had registered under an assumed name as husband and wife; and that H. confronted them when they came out of the room in the morning. Held, if false, sufficient to constitute a libel, and that a demurrer to the complaint was properly overruled.</p>

Action by Andrew Cosgriff and another against Wilson P. Foss, Anna De Baun Foss, Jacob B. Conklin, and William Dewey. From a judgment for defendant Dewey, plaintiffs and the other defendants appeal.

Action by the Northport Real Estate & Improvement Company against Jeremiah Hendrickson to recover real property. From a judgment for defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Case submitted on agreed statement. Controversy between the city of Poughkeepsie and William J. Quintard, submitted on an agreed ease without action. Judgment for plaintiff.

Action by Edwin Bailey and another against Barbara Gluth. Prom a judgment of the county court affirming a judgment of a justice of the peace, defendant appeals.

Action by David Patton and others against Maurice E. Townsend and others to foreclose a mortgage. From a j udgment overruling a demurrer to the complaint, defendants appeal.

Certiorari on the relation of Patrick H. Duffy against John Ennis, commissioner of the fire department of the city of Brooklyn, to review a decision removing relator from his place as fireman.

Proceeding by Anna Chadil and others for the probate of the will of Christian Ziegler, deceased. Probate was resisted by Francis C. Ziegler, and from an order admitting the will to probate he appeals.

Exceptions from circuit court, Kings county. Action by Susan Wrench against Bicka Samenfeld. There was a judgment for defendant, and defendant moved for a new trial on exceptions. Ordered’ to be heard in the first instance.

Application by Alicia Smiddy and others (eight cases) for the appointment of commissioners to assess damages sustained by applicants from a change of grade of a highway in the village of New Bocheile. From an order appointing such commissioners the village of New Bocheile appeals.

<p>L Partnership—Breach oe Agreement—Recovery oe Moneys Advanced.</p> <p>Plaintiff advanced money to defendant to be used in a business into which plaintiff was to be received as a partner. The partnership was to be for 10 years; no writing was executed between the parties, and the agreement was therefore void. Meld, that that fact did not give plaintiff the right to reclaim his advances, if defendant was still willing to comply with the agreement.</p> <p>2. Same—Election—Accounting.</p> <p>In such case, on defendant’s default, plaintiff could elect to rescind the agreement and recover his advances as money paid, and was not compelled to treat defendant as a partner, and sue for a dissolution and an accounting.</p>

Action by James M. Stevens against John K. Van Hess to recover back purchase money paid for a lot bought of defendant. From a judgment for plaintiff, defendant appeals.

Action by John W. Cleary against the Municipal Electric Light Company. Prom a judgment on a verdict in plaintiff’s favor, and from an order denying defendant’s motion for a dismissal of the complaint, and for judgment notwithstanding the verdict, and for a new trial, defendant appeals.

Proceeding by the trustees of the New York & Brooklyn Bridge to acquire title to lands held by William Irving Clark and others, trustees under the will of B. S. Clark, deceased, and others. From an order vacating an award of the commissioners, the defendants appeal.

Proceedings by the New Rochelle Water Company against Edward F. Brush and others to acquire defendants’ lands for the purpose of a reservoir. From a judgment for plaintiff, defendants appeal.

Action by Sumner A. Mason against Emma J. Mason. From an order denying a motion to open a default taken by the defendant at circuit, plaintiff appeals.

Action by Charles W. N. Akberg against the John Kress Brewing Company to recover the consideration paid for a worthless mortgage. From a judgment for plaintiff, defendant appeals.

Action by Anna M. Arnold against the Norfolk & New Brunswick Hosiery Company on a license agreement whereby defendant bound itself, upon certain representations made by plaintiff’s husband, agent and inventor, to pay royalties for the use of certain patents.

<p>Appeal from special term, Kings county.</p> <p>Action by Patrick F. Fitzgerald against William J. Moran and Eben J. Knowlton. From a judgment for defendants', plaintiff appeals.</p>

Action by William Smerling against Wilson P. Foss. From an order at special term at White Plains, changing the place of trial from Kings county to Rockland county, plaintiff appeals.

<p>Action by Clarence M. Kemp against the Union Gas & Oil Stove Company. Motions by both parties for an extra allowance of costs.</p>

Action by Margaret Donohue, as administratrix, against the Lake Shore & Michigan Southern Bail way Company for the death of plaintiff’s husband. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Charles F. Hoyt and others against LoieFuller to enjoin defendant from violating a contract. Plaintiffs moved for an injunction pendente lite.

<p>Appeal from special term.</p> <p>Action by John Grafton ■ against the Union Ferry Company of Brooklyn. Defendant company was dissolved pending the action; and from an order denying a motion to continue the action against its directors as trustees, plaintiff appeals.</p>

Action by William McShane against Charles H. Pinkham. Plaintiff, having recovered a judgment, and execution thereon having been returned unsatisfied, moved for an order directing the city chamberlain of New York to pay a sufficient amount to satisfy the execution out of money which was deposited for defendant in lieu of bail in a criminal action.

Petition of Charles E. O’Connor, as receiver of the property of Herbert Foote Beecher, a judgment debtor, to compel the executors of the estate of Henry Ward Beecher to account. From an order of the surrogate granting the petition the executors appeal.

- Petition by Sophia Durscheidt, widow of Jacob Durscheidt, deceased, for an order directing Anna Woelling, as executrix of Jacob Durscheidt, to pay over to petitioner the sum of $150 out of the money remaining to the credit of said estate, and deliver to her the articles of furniture mentioned in the inventory. The executrix appeals from so much of an order of the surrogate-granting the petition as directs payment to the petitioner of the money.

Action by Agnes Schleifer against Henry Schleifer. From a judgment granting plaintiff a separation from the bed and board of defendant, and awarding her alimony and costs, defendant appeals.

Action by Edward D. Shipman against Thomas J. Cummins. From a judgment of the special term in favor of plaintiff, decreeing specific performance of a contract for the conveyance of real estate, defendant appeals.

Case submitted on agreed statement. Action by the Brooklyn Trust Company on a submitted case against Henry P. Toler to recover the proceeds of a certain certified check in the hands of the clerk of the court of Kings county. Defendant claims the same moneyas assignee of certain claims against the drawer of the check, in which attachments were duly issued and served on the person in whose custody the avails of the check were before being paid to the clerk of the court.

<p>Appeal from special term, Kings county.</p> <p>Action by Lewis B. Waterman and another against Edward L. Shipman and another. From a judgment for plaintiffs, defendants appeal.</p>

Action by the people of the state of 17ew York, on the relation of Esther Jane Griffin, against Hillyer Ryder, as county treasurer of the county of Putnam.

Application by Charles F. Pond for a writ of mandamus to compel the board of supervisors of Monroe county to divide said county into assembly districts.

<p>Appeal from special term, Kings county.</p> <p>Action by the United States Trust Company of New York, as substituted trustee, against Philip Y. R. Stanton to foreclose a mortgage. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Sale—Action fob Pbice—Pabol Evidence of Waebantt.</p> <p>In an action for the price of nursery stock sold by an agent on a written order therefor signed by defendant, defendant may give paroi evidence of a warranty by plaintiffs, and that the stock did not come up to the warranty.</p> <p>2. Same—Wbitten Contbact—Evidence.</p> <p>In such case, though plaintiffs may have signed the order for the stock, yet in the absence of evidence that the order, which remained in the hands of the agent, was accepted in writing by plaintiffs, and defendant notified thereof, or that the agent executed an acceptance at the time of the order, or notified defendant of a subsequent acceptance, it does not appear that there was any written contract between the parties.</p> <p>8. Same—Expbess Wabbantt—Acceptance—Estoppel.</p> <p>Where there is an express warranty on the sale of goods to be delivered, the buyer is not estopped by accepting the goods; but he can retain the same, stand on his warranty, and recover for the breach.</p>

Action by the Tarrytown & Irvington Union Gaslight Company against James Bird, John J. Vanderbilt, and Warren 0. Brown, as trustees of Solomon’s Lodge Ho. 196, Free and Accepted Masons, of Tarrytown, H. V., to recover $726.15 for gas alleged to have been consumed by defendants as shown by the meter.

Action by the village of New Rochelle against Henry S. Clark. From an order of the county judge reversing a judgment of the police justice’s court of the village of New Rochelle against defendant for violating a village ordinance, plaintiff appeals.

<p>Evidence—Journal Entries.</p> <p>Defendant sold a lot, taking a mortgage for the entire purchase money from the-grantee, who commenced the erection of buildings thereon, and then reconveyed to defendant. Held, in an action by the builder for labor and materials furnished before the reconveyance, that journal entries made by plaintiff’s deceased clerk shortly before the suit was commenced, and some months after the work was done,, were not proper evidence against defendant.</p>

Exceptions from circuit court, Orange county. Action by Mary E. Warren against the Phoenix Insurance Company. From an order and judgment dismissing the complaint, the court directing the exceptions to be heard in the first instance at general term, plaintiff appeals.

Action by Elizabeth McCauley, as administratrix of the goods, chattels, and credits of William McCauley, deceased, against Abram S. Smith and Edmund D. Robinson. From a judgment dismissing the complaint, the exceptions being ordered to be heard in the first instance at general term, plaintiff appeals.

<p>Appeal from special term, Westchester county.</p> <p>Action by John Charles Anderson against Walter S. Carr and Mary Maud Watson. From an order adjudging John J. Leary, attorney for Walter S. Carr, guilty of contempt, said Leary appeals.</p>

Action by William Nelson against Frederick W. Bleckwenn, treasurer of Long Island City, for an injunction. From a judgment for plaintiff, defendant appeals.

Action by Michael Corcoran against the Delaware, Lackawanna & Western Railroad Company for personal injuries received in its employ. From an order granting plaintiff a new trial defendant appeals.

<p>1. Real-Estate Agents—Commissions—Refusal of Principal to Perform.</p> <p>A real-estate agent is entitled to commissions for effecting the execution of a contract to exchange lands, notwithstanding his principal’s refusal to perform the-same on the ground that the land had been conveyed to the proposed grantor in. fraud- of creditors, where such grantor had an absolute title, and no effort had been, made by creditors to impeach the conveyance.</p> <p>3. Partnership—Competency of Partner’s Testimony as to Existence.</p> <p>In an action by a partnership a partner is a competent witness as to the existence of the relation.</p> <p>3. Witness—Cross-Examination—Repetition of Questions.</p> <p>The court may, in its discretion, refuse to permit a witness to be asked on cross-examination questions substantially the same as others previously propounded andt answered.</p> <p>4. Real-Estate Agents—Commissions—Misrepresentations.</p> <p>It is immaterial to a real-estate agent’s right to commissions for effecting the execution of a contract for the exchange of lands that he misrepresented the amount, of taxes in arrear on the land to be received by Ms principal, where the latter had the tax bills before him, and could'have informed himself as to their amount.</p> <p>5. Same—Inability to Perform.</p> <p>In an action for commissions for effecting the execution of a contract to exchange-lands," defendant’s ability to pay the taxes in arrear on the land to be received by him was immaterial to the question whether he had agreed to do so, and evidence-thereof was inadmissible.</p>

<p>Action by Buth Torbett and by Jessie Watson, respectively, against Parke Godwin.</p>

<p>Application for a writ of certiorari on relation of Samuel Rey to review the determination of the court of special sessions affirming an order of a police magistrate in abandonment proceedings.</p>

. Action by Sarah E. Mellen against William 0. Banning, sole surviving executor of the last will and testament of Abner Mellen, deceased, Helen I. Banning, wife of William 0.

<p>Appeal from special term, Kings county.</p> <p>Action by Henry C. Bainbridge and another against Maurice Lilienthal.</p>

<p>Appeal from Dutchess county court.</p> <p>Action by James J. Cool? against the American Express Company.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Joseph M. Johnson and another against Simon Feist.</p>

<p>Appeal from special term, Dutchess county.</p> <p>Action by Almira H. James against Winifred K. Einch.</p>

<p>Appeal from court of sessions, Kings county.</p> <p>Prosecution against Andrew Steckenreider for assault in the third degree.</p>

<p>Appeal from circuit court, Dutchess county.</p> <p>Action by James A. Thompson against Frank J. McGreevy and another.</p>

<p>Action by the Glenside Woolen Mills against Edward Hannan, as superintendent of public works, and others. Plaintiff moves, under section 605 of the Code, for a temporary injunction order restraining the defendants from “closing the gates in the dam at the foot of Skaneateles lake or in any manner whatever to prevent the ordinary and natural flow of water from the said Skaneateles lake through the outlet thereof. ”</p>

<p>Action by James A. Jaycox against Richard W. Ellis, impleaded.</p>

<p>Application of the Rochester Electric Railway Company to acquire the lands of Jennie S. Wilkin and others.</p>

<p>Action by George W. Bennett and another against Austin R. Knapp and others.</p>

Proceeding for the judicial settlement of the accounts of Margaret S. Chamberlain, as executrix of Julius A. Chamberlain, deceased. From portions of the decree settling the accounts, the executrix and Julius W. Chamberlain, a contestant of the account, appeal.

<p>Appeal from trial term.</p> <p>Action by Charles F. Mattlage against the New York Elevated Railway Company and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Action by John W. Young against Sophia Young.</p>

Certiorari on the relation of Alexander Murphy to review the decision of Henry D. Purroy and others, board of police commissioners, dismissing relator from the police force.

<p>Appeal from judgment on report of referee.</p> <p>Action by Clark R. Griggs against Mellville C. Day and another, surviving executors of Cornelius K. Garrison, deceased. From a judgment of a referee both parties appeal.</p>

<p>Action by Annie Barrett, an infant, by Albert T. David, her guardian ad litem, against George Waldo Smith and John S. Sills.</p>

Action by Thomas S. Bassford against Charles H. White. From a judgment entered in favor of the plaintiff on the decision of a judge after trial of the issues without a jury, defendant appeals.

Action by Flora Jacobs against David Morrison, individually, and as trustee, etc. From judgment dismissing complaint, entered on findings and the decision of a judge at special term, plaintiff appeals.

<p>Action by Augusta G. Genet against the president, etc., of the Delaware & Hudson Canal Company.</p>

Action by Thomas S. Clarkson and others against Frederick S. Howard. From judgment entered on a verdict directed by the court in favor of the defendant, plaintiffs appeal.

<p>Action by Louise Lange against the Manhattan Railway Company and the Metropolitan Elevated Railway Company.</p>

<p>Action by Martha G. Seggermann against the Hillis Plantation Coffee Company. From judgment entered on the report of a referee, plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Rudolph Rannow against Edward C. Hazard and another. From an order denying a motion to vacate an order declaring a case on appeal abandoned, plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Charles Doll against Frederick R. Jorgenson.</p>

<p>Appeal from trial term.</p> <p>Action by Cornelius G. Van Reypen and others against Sophia A. Vandermark. From a judgment entered on a verdict directed by the court for plaintiffs, defendant appeals.</p>