Volume 196 — New York Reports

(Motion for re-argument submitted June 18, 1909; decided October 19, 1909.) ■ • Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 27,1907, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. The tax of 1875 was lawfully assessed on the premises.

The plaintiff is the owner of certain premises situated in that part of the city of New York formerly known as Long Island City. These premises had been leased to the latter city by one of the plaintiff’s predecessors in title for a term of five years from January 1st, 1891. The lease was in writing and the rent reserved was $5,000 a year, payable monthly in advance.

The nature of the action and the facts, so far as material, are stated in the opinion. As it was not expressly stipulated in the contract that time was of its essence; as the subject of the sale did not fluctuate in value, and there had been no change of circumstances, and the delay, if any, did not involve the vendor in any loss, and every act of the vendee was in affirmance of the contract, specific performance should have been decreed. (Hun v. Bourdon, 57 App.

This is a certiorari proceeding under the Tax Law to review the action of the state board of tax commissioners in fixing the sum of $800,000. as the taxable value of the special franchise of the Jamaica Water Supply Company in the borough and county of Queens on the second Monday of January, 1907.

<p>Appeal from a judgment of the Supreme Court, rendered October 31, 1908, at a Trial Term for the County of Jefferson, upon a verdict convicting the defendant of the crime of murder-in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

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

The nature of the action and the facts, so far as material, are stated in the opinion. A minor son is not emancipated by marriage from the care, custody and control of his father when the marriage is without the consent and contrary to the expressed wishes of the father, nor is the father thereby deprived of the right to the earnings of the son. (Matter of Whittaker, 4 Johns.

The facts, so far as material, are stated in the opinion. The appellant should be allowed the counsel fees in Middleworth v. Ordway. (Matter of Blair, 28 Misc. Rep. 611; Matter of Hutchinson, 84 Hun, 563; Matter of Ritch, 76 Hun, 36; Rothschild v. Goldenberg, 103 App. Div. 235; Geissler v. Werner, 3 Dem. 200; Downing v. Marshall, 37 N. Y. 380; Matter of Van Buren, 19 Misc. Rep. 373; Gross v. Moore, 14 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants, as directors of the old company, had a right to transfer its property to the new corporation, at the request of H. B. Hollins & Co., who owned substantially all the stock in the old company.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1909, which affirmed a judgment rendered at a Trial Term upon a verdict convicting the defendant of the crime of assault in the third degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The findings of fact present a case which comes exactly under the operation of the statute providing for discontinuing and closing streets, avenues, roads, highways, alleys, lanes and thoroughfares in cities of more than 1,250,000 inhabitants. (L. 1895, ch. 1006.) The meaning of “ opened ” in the statute must be taken in its technical sense.

The facts, so far as material, are stated in the opinion, The finding by the police surgeons as to the fact of the physical condition of the relator is subject to review. (People ex rel. Schau v. Mc Williams, 185 N. Y. 92.) The order of the Special Term was properly reversed as there were no issuable facts to be ascertained by means of the alternative writ of mandamus. (People ex rel. Eastmond v. Oakley, 93 App. Div. 545; 179 N. Y. 513; People ex rel.

Crandall, deceased. The facts, so far as material, are stated in the opinion. The “interlocutory judgment,” so called, entered May 28, 1906, did not divorce Ira L. Crandall, deceased, from the appellant Nettie Crandall, nor in any way affect the status of the parties. (Code Civ. Pro. § 1774; Petit v. Petit, 45 Misc. Rep. 155; 105 App.

On the 26th day of September, 1902, a written memorandum of agreement, dated August 28, 1902, was signed in the name of the defendant by one of its vice-presidents. It was sealed with the corporate seal and attested by an assistant secretary of the defendant, and it was also signed and sealed by the plaintiff. Duplicates were retained by the plaintiff and said vice-president.

The New York and Long Island Railroad Company was incorporated on July 30, 1887, under the General Railroad Act of 1850, for the construction, maintenance and operation of a railroad from Long Island City through a tunnel under the East river and under streets and lands in the city of New York to a connection with the New York Central'and.

Appeal, by permission, from, an order of the Appellate Division, of the Supreme Court in the first judicial department, entered May 11,1909, which reversed an order of Special Term denying a motion to set aside an execution against wages, earnings or salary issued under section 1391 of the Code of Civil Procedure. The following questions were certified: “First.

The facts, so far as material, are stated in the opinion. The city is not liable for interest on the sum of $46,721.96 from January 18, 1904, to date of payment. (Carpenter v. Mayor, etc., 51 App. Div. 586; O'Keefe v. City of New York, 176 N. Y. 297; Barnes v. Mayor, etc., 27 Hun, 236; Matter of Montgomery Street, 91 App.

Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 22, 1909, which affirmed an order of Special Term denying a motion from an injunction pendente lite.

<p>Public service commission — right to appeal from order of Appellate Division reversing its determination — erroneous determination by commission.</p> <p>The public service commission is entitled to prosecute an appeal from an order of the Appellate Division which annulled its'determination denying an application by a railroad company for permission to construct and operate an extension of its road.</p> <p>The public service commission determined that the public interest required the construction and operation of a railroad upon the route over which the relator had acquired a franchise, but recommended that the permission and approval of the commission be withheld because of the limitations imposed by the municipal authorities of the city of New York upon the franchise contract. Held, that so far as the consent of the municipal authorities to the construction of the proposed line may be limited by conditions which are in conflict with the provisions of the Public Service Commissions Law, the statute must prevail and the public service commission was without authority to refuse to the relator the certificate provided for in section 53 of the Public Service Commissions Law.</p>

217 Sumpter street, in the borough of Brooklyn, presented to the acting special deputy commissioner of excise for that borough an application for a liquor tax certificate to carry on business at his residence aforesaid, for one year from October 1, 1908, to September 30, 1909.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 13, 1909, which reversed a judgment of Special Term sustaining a demurrer to the complaint and overruled such demurrer.

The facts, so far as material, are stated in the opinion. During the pendency of a condemnation proceeding and up to the time that the city actually acquires the title to a piece of property proposed to be taken, the owner thereof may, even with the knowledge that the city intends to acquire the lot in the near future, lawfully erect thereon a new building, or re-erect an old one, and having so lawfully used his property, he is entitled to compensation for its value in the…

<p>(1). Bookmaking—Must be by Written Lists, etc.</p> <p>The vice of bookmaking chiefly consists in soliciting and in the inducing the public to take chances in the carefully figured and planned scheme of the bookmaker, and this, in order to be profitable to him, requires the writing out of the list of the odds laid on some paper or material so that they could be seen by those who were solicited to invest.</p> <p>¡(2). Same—Information Bailing to Allege Acts Constituting Bookmaking.</p> <p>An information charged the person arrested thereon with laying odds and publishing the same, but was not intended to, and did not, charge that such laying odds and publishing was by any writing or printed instrument, but that it was oral. Held, that such information did not allege acts which constitute the crime of bookmaking within the meaning of section 351 of the Penal Code (section 986, Penal Law, Consolidated Statutes), which provides that any person who engages in bookmaking is guilty of a misdemeanor and prescribes the penalty therefor.</p>

an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1909, which affirmed an order of Special Term dismissing a writ of certiorari to review certain assessments for taxation upon the capital stock of the relator owned by its respective shareholders. The facts, so far as material, are stated in the opinion. The act does not deprive the court of power in the premises. (Cooley on Const.

<p>Streets — condemnation of fee of street — erroneous award.</p> <p>The city of New York instituted proceedings to acquire the fee to lands upon which a street had been laid out and used. The owner had conveyed various parcels on both sides of the street but retained title to the fee of the street. Commissioners awarded a substantial sum to unknown owners. The entire award is claimed by both the purchaser of the fee of the street and by the abutting owners. Held, that no party is entitled to more than a nominal award and that so far as now appears none of the claimants are justly or equitably entitled to any part of the fund so awarded. Hence the proceeding is remitted to the Special Term. Matter of City of New York (Decatur St.), 133 App. Div. 331, reversed.</p>

<p>(1) . Murder—Evidence Examined and Held Sufficient.</p> <p>Upon consideration of the evidence given on the trial of an indictment for murder in the first degree, held, that it sufficiently justified the jurors in finding the defendant guilty, and that nothing occurring upon the trial in the slightest degree warrants interference with the judgment of conviction.</p> <p>(2) . Same—Evidence of Another Crime Committed at Same Time.</p> <p>Testimony of the wife of deceased, who was in his company at the time of the murder, that the defendant committed a rape upon her _ person immediately after the murder, was properly admitted as part of a more or less continuous transaction, and as bearing upon his motive.</p>

<p>(1) . Murder—Evidence Held Sufficient.</p> <p>Upon examination of the facts set forth in the record, on conviction of defendant of murder in the first degree, held, that the crime was conclusively established, and the attendant circumstances indicate beyond a reasonable doubt that it was not justifiable homicide; neither was it an accident nor an act of sudden impulse, but a deed of premeditation and deliberation.</p> <p>(2) . Same—Intent, Deliberation and Premeditation.</p> <p>Since the crime of murder in the first degree involves the elements of felonious intent, deliberation and premeditation, any evidence bearing upon either or all of these elements is admissible, and evidence for the purpose of showing ill-will on the part of the defendant toward the person killed is competent.</p>

<p>Corporations — statutory right of stockholders to inspect books of corporations and make transcripts thereof.</p> <p>Section 53 of the Stock Corporation Law (Cons. Laws, ch. 59, § 33) recognizes an absolute right in a stockholder to inspect the books of a corporation and imposes an absolute duty upon the corporation and the custodian of the stock book to permit such inspection. 'The stockholder lias a right to take memoranda therefrom in the course of his examination in order to assist his recollection.</p>

<p>Appeal from a judgment of the Kings County Court, rendered December 20, 1907, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Anne Morris Stout died July 2, 1900, leaving a will dated February 13, 1896, by which she gave four general legacies to the persons and for the amounts as follows : Caroline Barnard Sutliff, $12,000 ; J. Herbert Carpenter, $10,000; Caroline Barnard Sutliff, $5,000 ; Isabella Hutherfnrd, $25,000.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 4, 1908, affirming a judgment in favor of defendant entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There is no proof that the defendant failed in any respect in its duty or care, either at common law or under the Employers’ Liability Act. (G. F. P C. Go. v. T. Ins. Co., 162 N. Y. 403; Egan v. N. J. S. Co., 86 Hun, 542; 154 N. Y. 777; Russell v. N. J. S. Co., 10 Misc. Rep. 593; Bristor v. Smith, 158 N. Y. 157; Bauer v. E. S. D. Co., 115 App. Div. 71; 191 N. Y. 547; Nolan v. M. S. Ry.

Corlies, Sr., deceased. Also motion to dismiss said appeal upon the ground that the order appealed from was not a final order. The facts, so far as material, are stated in the opinion. It was not necessary to make the contingent remaindermen parties to the proceeding for an appointment of a trustee in this case. (2 Story’s Eq. Juris. [11th ed.] § 1214a; Griffin v. Baust, 26 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1908, reversing a judgment in favor of defendant entered upon a verdict directed by the court and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The rule that where an insurance com pany frames a policy in language which is ambiguous, or which requires interpretation, or which is reasonably susceptible of different meanings, the uncertainty should be resolved contra proferentem, is most inapplicable where the policy defines a specific risk in plain and popular language clearly indicating and disclosing a distinct and definite.understanding as to the risk assumed and paid for and employing appropriate language not capable of misleading the simplest mind. (Preston v. Æ. Ins. Co., 193 N. Y. 142; Nelson v. T. Ins. Co., 181 N. Y. 472; Peabody v. Satterlee, 166 N. Y. 174; Allen v. G. A. Ins. Co., 123 N. Y. 6; Foot v. Æ. Ins. Co., 61 N. Y. 571.) The language of the clause in question — “if caused hy the burning of a building”'—is quite plain and unambiguous, and there should be no reasonable doubt as to the intention of the parties. (The Glenlivet, L. R. [C. P. 1894] 48.)</p> <p>This is a policy of accident insurance and must be construed liberally in favor of the insured. (Vance on Ins. 565; Rickerson v. H. F. Ins. Co., 149 N. Y. 307; Herman v. M. Ins. Co., 81 N. Y. 184; Hoffman v Æ. F. Ins. Co., 32 N. Y. 405; Martin v. E. A. Assn., 61 Hun, 467; Matthews v. A. C. Ins. Co., 154 N. Y. 449; Marshall v. C. T. Assn., 170 N. Y. 434; Northrup v. R. P. Assur. Co., 43 N. Y. 516.) Even upon the defendant’s construction of the policy there was a question of fact for the jury, and plaintiff’s exception to the direction of a verdict for defendant was well taken and amply justified the Appellate Division in reversing. (McDonald v. M. R. N. Co., 167 N. Y. 66; Richards on Ins. § 45; Kenyon v. K. T., etc., Assn., 122 N. Y. 247.)</p>

On the 7th day of December, 1894, John Beattie, the plaintiffs’ testator, and Lynde Harrison of New Haven, Connecticut, were the owners of granite quarries situate at Leetes Island upon Long Island Sound in the state of Connecticut. On that day they entered into a contract with the defendant, partly evidenced by a letter which reads as follows : “ New Haven, Conn., “ December 7,1894. “ Me.

<p>(1) . Murder—Evidence Held Sufficient to Sustain Judgment of Conviction.</p> <p>Defendant was convicted of murder in the first degree. On a review of the evidence, held, that it was sufficient to warrant the finding that the homicide was committed with premeditation and deliberation and that the verdict of the jury was amply justified.</p> <p>(2) . Same—When Court Will Reverse Judgment, Although no Exception Taken.</p> <p>While this court may, in a capital case, reverse the judgment even if no exception be taken, and if the error is so substantial as to have jeopardized the rights of the defendant and induced a verdict against him which otherwise would not have been rendered, it would be the duty of the court to reverse without an exception, it is settled law that the defendant cannot claim as a matter of right review of errors to which no objection and exception has been taken.</p> <p>(3) . Same—Time as an Element op Premeditation and Deliberation.</p> <p>While, under the statute, to constitute murder in the first degree premeditation and deliberation must precede the act of killing, no particular or prescribed lapse of time must occur between the two. It is enough that sufficient time elapses for the jury to find as a matter of fact that premeditation and deliberation did exist.</p>

<p>(1) . Indictment—Amendment of, by Trial Court, to Conform with Proof—Code Grim. Pro., Sec. 293.</p> <p>Under section 293 of the Code of Criminal Procedure the court may amend an indictment to conform with the proof in respect to time, or the name or description of any place, person or thing, if the defendant cannot he thereby prejudiced in his defense on the merits; but it was not the purpose of the legislature to authorize the court by amendment to change the substantial elements and nature of the crime charged and thus in effect substitute a new indictment in the place of the one found by the grand jury.</p> <p>(2) . Same—Changing Crime, Reversible Error.</p> <p>Where an indictment charged the defendant with the larceny of a check for five hundred dollars on a given date, and the evidence established that the check was sent to him in a fiduciary capacity and that he indorsed and deposited it to his credit, as he rightfully might, and that his wrongdoing consisted in thereafter withdrawing and misappropriating the proceeds of the check thus deposited, it was reversible error to amend the indictment so that it charged the defendant with the larceny of “ five hundred dollars, good and lawful money of the United States and of the value of five hundred dollars.”</p> <p>(3) . Same—Trial—Erroneous Admission of Evidence.</p> <p>It is error, upon the trial of a defendant charged with larceny, to receive evidence of admissions made by him and tending to show that he had wasted or misapplied money belonging to an estate of which he had been the executor and trustee, where such acts had no relation whatever to the .offense charged in the indictment.</p>

The indictment under which the defendant has been tried and convicted charges her with the crime of attempted subornation of perjury which is alleged to have been committed in an effort to obtain false testimony to be used in an action for absolute divorce brought by one Helen K. Gould against her husband, Frank J. Gould.

The defendant is “a mutual, fraternal benefit insurance association,” organized under the laws of the state of Michigan, with its principal office in the city of Port Huron in that state and with branches or subordinate bodies, known as tents, in various places in many states, one of which, located in the city of Watertown, New York, is known as Tent Ho. 418. The plaintiff, a resident of Watertown, became a member of the defendant and of said tent in the month of June, 1897.

<p>Insurance (life) — mutual benefit associations — association cannot change constitutional provision that beneficiary shall be assessed according to age when admitted, without his consent..</p> <p>The defendant, a mutual benefit life insurance association, issued to plaintiff a certificate of membership therein, upon the condition that he should “in every particular while a member of said association comply with all the laws, rules and requirements thereof.” Plaintiff also received a printed book containing the constitution and by-laws of defendant. One of the articles of the constitution provided in substance that all members should be assessed according to their age when admitted. The question presented is whether, by subsequent amendment of the constitution or any of the rules or regulations made after the issue of the certificate, defendant may increase the rate of a single assessment against plaintiff. Held, that the covenant on the part of plaintiff that he would comply with all the laws, rules and requirements of the association refers only to such as existed at the time he entered into his contract, and that any changes or alterations thereafter made therein, or additions thereto, seeking to modify or alter said contract do not bind him.</p>

The facts, so far as material, are stated in the opinion. It was error to refuse the appellants as trustees commissions upon capital in addition to those awarded to them as executors. (Olcott v. Baldwin, 190 N. Y. 99; Hurlburt v. Durant, 88 N. Y. 121; Matter of Mason, 98 N. Y. 527; Matter of Babcock, 52 Hun, 510; Matter of Beard, 77 Hun, 111; Laytin v. Davidson, 95 N. Y. 263; Johnson v. Lawrence, 95 N. Y. 154; Matter of Curtiss, 9 App.

Appeal in each of the first three above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 28, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

<p>Carriers — definition of the terms “ act of God ” and “ inevitable accident,” which will relieve common carrier from liability for delay in transportation of passengers — neglect of railroad company to mitigate conditions caused by snow storm — question of fact.</p> <p>Definitions of the terms “act of God” and “inevitable accident ” collated and discussed, with relation to the liability of common carriers of goods and passengers.</p> <p>A common carrier is not an insurer as to the time when passengers will reach their destination, in the absence of an express contract on the subject. If a railroad company negligently fails to keep the time it promises it will be liable in damages for injury thereby accruing to a passenger. But to entitle the plaintiff to recover there must be proof of negligence. Neither time table nor advertisement is a warranty of punctuality.</p> <p>A snow storm of such severity as that it delays a train, although the railroad company made strenuous efforts to clear the track, must be classed as an act of Gqd, and proof of its occurrence and effect constitute a complete defense to the claim of a passenger for damages by reason of being delayed thereby.</p> <p>Where, however, a passenger was delayed by a snow storm and complained of the dark, cold and uncomfortable condition of the car in which he claims to have been compelled to spend the night, and the failure of the railroad company to mitigate such condition, as to the truth of which allegations there is a conflict of evidence, he is entitled to go to the jury on that issue.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1909, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint. The following questions were certified : “ 1. Does the plaintiff’s complaint, upon the face thereof, state facts sufficient to constitute a cause of action 3 “ 2.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 14, 1909, which reversed a judgment of Special Term overruling a demurrer to the answer and dismissing the complaint and sustained said demurrer.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 2, 1908, affirming a judgment in favor of defendants entered upon a'dismissal of the complaint by the court at a Trial Term, a jury having been waived.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The action brought, wherein the undertaking was given, was properly brought, and the preliminary injunction properly issued, and there were no damages and costs within the purview of the undertaking recovered in any action by the Brace Company; hence there is no liability by the sureties on such undertaking. (Gillet v. Bank of America, 160 N. Y. 549; Robertson v. O. E. Co., 146 N. Y. 20; Coyne v. Weaver, 84 N. Y. 390.)</p>

<p>Supplementary proceedings — corporations — improper service of order in supplementary proceedings upon foreign corporation.</p> <p>It is not sufficient service of an order in supplementary proceedings, by which a foreign corporation is, required to make discovery on oath concerning its property, to deliver such order to a person designated by the corporation as one upon whom a summons might be served in accordance with the General Corporation Law and section 432 of the Code of Civil Procedure, but such service must be made in accordance with section 2452 of the Code upon an officer of the corporation.</p>

<p>(1) . Trial—Evidence—Documentary,</p> <p>Where part of a document is received because it is relevant, other parts may become admissible only because they qualify, limit or explain the relevant matter first introduced.</p> <p>(2) . Same—Code Crim. Pro., Sec. 542.</p> <p>Where the injurious character of evidence received against a defendant on the trial of an indictment is clear, this court cannot ignore the error under the power conferred upon it by section 542 of the Code of Criminal Procedure, to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.</p> <p>(3) . Same—Penal Code, Sec. 587.</p> <p>Defendant was indicted under section 587 of the Penal Code (Penal Law, § 1171) for transferring a check payable to his order to a relative, with intent to defraud creditors. Upon the trial a petition presented to the court in bankruptcy proceedings against defendant, which petition was made several months after the alleged commission of the crime, and stated facts prejudicial to him, but not relating specifically to the crime for which he was on trial, was received in evidence upon the ground that defendant’s counsel had upon cross-examination “ opened the d'oor ” by inquiry with reference to the petition from one of the People’s witnesses, who avowed his ignorance of its contents. Held, that the petition was not competent evidence, and that although the trial judge instructed the jury on receiving it that it was not competent to establish the statements contained therein, his language to the jury on their request for instructions permitted the jurors to consider it for a purpose for which it could not properly be considered, and rendered its erroneous admission prejudicial to defendant; further, that it does not appear that the petition was admissible for any purpose.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The alleged negligence of the defendants in placing the muck pile in the highway was not the proximate cause of the accident, and defendants’ motion to dismiss the complaint upon that ground should have been granted. (Hoffman v. King, 160 1ST. Y. 628; Watson on Dam. for Personal Injuries, § 35 ; Trapp v. McLéllan, 68 App.

Appeal in each of the ahove-en titled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered respectively June 19 and 18, 1908, affirming a judgment in favor of defendants entered upon the report of a referee. The nature of the actions and the facts, so far as material, are stated in the opinions. The rights of the parties are not governed by the law of negoliable paper. (Daniel on Keg.

<p>Appeal from an order of the A ppellate Division of the Supreme Court in the first judicial department, entered April 10, 1908, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial in an action to set aside a deed on the ground of fraud.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 23, 1908, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at Special Term and granting a new trial in an action to restrain the operation and maintenance of an elevated railway in front of certain premises and for damages.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 2, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover upon a policy of fire insurance.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 18, 1907, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover moneys alleged to have been wrongfully withdrawn from the assets of the Elmira Steel Company by defendant, a director thereof.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the Erst judicial department, entered January 10, 1908, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained through defendant’s negligence in permitting an accumulation of ice to remain upon the sidewalk of one of its streets.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 16, 1908, modifying and affirming as modified a judgment in favor of plaintiffs entered upon the report of a referee in an action of partition.</p>

Motion to restore to the calendar an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 23, 1909, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 28,1907, which affirmed a judgment of the Court of General Sessions of the Peace in the city of New York rendered upon a verdict convicting defendant of the crime of murder in the second degree and an order denying a motion for a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 14, 1909, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel defendants to permit relators to examine the books of the defendant corporation.</p>

<p>Appeal — order of Appellate Division should show reversal to be on the law.</p> <p>To render a review by the Court of Appeals effective, an order of the Appellate Division reversing an order adjudging one guilty of criminal contempt should show on its face that the reversal was solely on the law Reported below, 134 App. Div. 32.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 11, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover upon a surety bond.</p>

<p>Appeal from an order of tlie Appellate Division of the Supreme Court in the second judicial department, entered June 29, 1908, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial in an action to procure the cancellation of a bond and mortgage.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1909, which affirmed an order of Special Term dismissing a writ of certiorari to review certain assessments for taxation upon the capital stock of the relator owned by its respective shareholders.</p>

Appeal in each of the above-entitled actions from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 7, 1909, which affirmed an order of Special Term sustaining a writ of habeas corpus and directing the discharge of the relator from custody.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 23, 1908, affirming a judgment in favor of plaintiffs entered upon the report of a referee in an action to recover for an alleged in jury to easements and for depreciation of value of plaintiffs’ real property by reason of the operation of defendant’s railroad opposite thereto.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March' 6, 1908, reversing a judgment in favor of plaintiff entered upon the report of a referee and granting a new trial in an action to recover for an alleged breach of contract for services.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 6, 1907, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for the death of plaintiffs intestate alleged to have been occasioned by defendant’s negligence.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 14, 1909, which' reversed a judgment of Special Term overruling a demurrer to the answer and dismissing the complaint in an action to recover upon a surety bond. The following question was certified: “ Does the plaintiff's complaint set forth facts sufficient to constitute a cause of action ? ”

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 1, 1908, reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term and granting a new trial in an action to restrain the use of a trade name.</p>