Volume 198 — New York Reports

The relator, a reputable dancing teacher in New York city, -was on October 2, 1909, arrested by the defendant for willfully and unlawfully violating the provisions of -chapter 400 of the-Laws of 1909, in that he did, at the place therein stated, conduct a school for dancing without having obtained a license as required by law.

The facts, so far as material, are stated in the opinion. The relator has mistaken his remedy, the court having no jurisdiction to grant a mandamus herein. The relator should have resorted to his legal remedy, an action at law. (People ex rel. Harris. v. Comrs., 149 N. Y. 30; People ex rel. Lentilhon v. Coler, 61 App. Div. 223; Freeman v. Society, 42 Hun, 252; Hankinson v. Page, 12 Civ. Pro.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial court erred in not submitting to the jury the question whether or not the defendant held possession of the premises in question as mortgagee with the consent, either express or implied, of one or both of the owners of the equity.

Cboss-appeals, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1909, which modified, and affirmed as modified, an order of Special Term directing that a certain fund, being rents of mortgaged premises collected during the pendency of an action of foreclosure, be paid to the defendant. The facts, so far as material, and the questions certified are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The testator’s intention must be ascertained from the will itself.

The facts so far as material are stated in the opinion. The court below was without jurisdiction to increase the land valuation of the tax commissioners, and was bound by it in fixing the total valuation of the property. (People ex rel. B. B. P. Assn. v. Stillwell, 190 N. Y. 284; People ex rel. Keim v. Desmond, 186 N. Y. 232; People ex rel. Village of Brockport v. Sutphin, 166 N. Y. 163; People ex rel. Bhumgara v. Wells, 93 App. Div. 212; 179 N. Y. 529; People ex rel.

The facts, so far as material, are stated in the opinion. The capital stock of the relator was employed within the state during the year in question. (People ex rel. Steinway & Sons v. Kelsey, 108 App. Div. 138; People ex rel. H. A. Assn. v. Kelsey, 110 App. Div. 617; 184 N. Y. 573; People ex rel. F. S. R. Co. v. Kelsey, 110 App. Div. 797; People ex rel. W. & H. S. R. Co. v. Miller, 181 N. Y. 328; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. A nonsuit should have been granted because no negligence on defendant’s part was established. (Toppi v. McDonald, 128 App. Div. 443; Carney v. M. D. Co., 191 N. Y. 301; McGinness v. T. A. R. R. Co., 104 App. Div. 342; Dobbins v. Brown, 119 N. Y. 188; Kern v. B. I. Co., 40 App. Div. 547; 17 App.

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

<p>Employers’ Liability Act — validity of notice of injury.</p> <p>Where, in an action brought under the Employers’ Liability Act (L. 1902, ch. 600) for the death of an employee, the only objection taken by the defendant, upon the trial, to the notice of injury served by plaintiff in xmrsuance of the statute, was “ to the sufficiency of said notice on tire ground that it fails to state, as a cause of injury, the negligence of a superintendent or persqn acting as such,” the defendant cannot, upon an appeal to the Court of Appeals, urge, in support of the decision of the Appellate Division, the objection that the notice is insufficient because it states different, inconsistent and inapplicable causes of injury and, also, that it does not state, with sufficient definiteness, the place of the accident.</p> <p>The notice of injury describes with substantial accuracy and completeness the exact physical cause of the injuries to plaintiff’s intestate, the falling of a mass of rock and earth upon him while working in the construction of a tunnel. The specifications of the claim, that the defendant is responsible for the accident, are somewhat general, because the notice does not state the name,' grade or duties of the particular person representing defendant and through whom it acted when guilty of the alleged omissions, and because it does not state that such person was an agent acting as, or exercising the duties of, a superintendent in its behalf. The defendant was notified, however, of that which fell upon and inj ured the intestate, and was apprised of tire plaintiff’s claim that it was responsible for the accident because of its failure, in substance, to inspect, safeguard and keep safe the place wherein the intestate was working. Held, that such notice sufficiently indicates the wrongful misconduct of the defendant, claimed to have been the cause of the accident and relied upon as the basis of the action, so that the defendant might, by virtue of such notice, investigate and prepare to defend against the charge thereafter to be prosecuted, and, hence, that the notice as a whole contains enough to comply with the requirement of the statute that it should state the “ cause of the injury.” (Finnigan v. N. Y. Contracting Co., 194 N. Y. 244, distinguished.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in admitting the lease in evidence as a measure of the landlord’s obligation to the plaintiff. (Frank v. Mandel, 76 App. Div. 413; Griffin v. Manice, 166 N. Y. 188.) The trial court erred in the charge to the jury and in the refusal to charge as requested by the defendant Asch. (Griffin v. Manice, 166 N. Y. 188; Stackpole v. Wray, 74 App.

The facts, so far as material, are stated in the opinion. The exclusion by the commissioners of the evidence of structural cost of the improvements upon the premises acquired by the city of Mew York constituted reversible error. (People ex rel. C. G. Co. v. Wells, 54 Misc. Rep. 322; 126 App. Div. 944; 193 N. Y. 614; People ex rel. Powers v. Kalbfleisch, 25 App. Div. 434; 156 N. Y. 678; People ex rel. Clearing House v. Barker, 31 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The owner of a building is under no duty to light it, even where he invites the public to enter. (Gorman v. White, 19 App. Div. 324; Dailey v. Distler, 115 App. Div. 102; Robinson v. Crimmins, 120 App. Div. 250; Lather v. Bammann, 122 App.

<p>Negligence — when railroad company not liable for death of employee of sub-contractor killed by train—- erroneous charge as to duty owed by defendant to plaintiff’s intestate.</p> <p>Defendant made a contract with a construction company to do work on one of its stations. This company made a sub-contract with a paving company to do part of the work and the latter company employed as one of its workmen plaintiff’s intestate, who was injured, while engaged in driving a horse for the purpose of hoisting materials, between two of defendant’s tracks which were something over twenty feet apart. There was evidence that while the horse was shying toward one of the tracks deceased was trying to crowd him back and while so doing rvas struck by a train. The original contract provided that the contractor might not make any sub-contract for the work without the written consent of defendant. No written consent was ever given to a sub-contract with intestate’s employer, neither was there any evidence that before the accident defendant either waived the provision in question or in any form consented to a sub-contract or to the presence of the intestate on its premises or even knew that he was there. Held, that the court erroneously refused to charge in substance these facts in reference to the contract between the defendant and the contractor when requested so to do, and erroneously charged that “In determining what duties rested upon the defendant it will be necessary for you to first find whether this plaintiff’s intestate was upon the property of the defendant with its knowledge or consent, that is, whether he was doing work for the benefit of the defendant. If so, it was the duty of the defendant to use such care as an ordinarily prudent person would use under the circumstances.”</p> <p>The engineer saw the man and horse about 1,300 feet away, but did not attempt to reduce the speed of the train, materially, until within about 75 feet of the man. One of the disputed questions of fact was whether there was anything in the appearance or action of the horse to indicate necessity for earlier stopping of the train.</p> <p>The court erroneously charged that if plaintiff’s intestate “ was working in this place without the knowledge or consent of the defendant, then the defendant owed no further duty to this young man than the duty of not being wanton and reckless or running him down in a wanton or reckless manner,” since, under such conditions, the engineer having seen intestate 1,300 feet away, became obligated to use reasonable efforts and care to avoid injuring the deceased, even though primarily and originally he may have been a technical trespasser; and, if the jury chose to believe it, there was evidence justifying the conclusion that the actions of the horse were such that reasonable prudence required the train to be stopped or slowed before it was, there was sufficient evidence to make the question of intestate’s contributory negligence one of fact.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1909, which affirmed an order of Special Term dismissing a writ of habeas corpus.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from a judgment entered October 21, 1908, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed a judgment of the Monroe County Court reversing a judgment of the Municipal Court of the city of Rochester in favor of plaintiff and affirmed said Municipal Court judgment.

The city of New York brought this action to restrain the defendant Bice from maintaining, and to compel him to remove, a masonry wall about his property, at the southeast corner of 89th street and Biverside drive; which had been constructed beyond the house, or building, line and upon the public streets aforesaid.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 22, 1909, affirming a judgment in favor of plaintiff entered upon a verdict and an order deny, ing a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The exception of defendants to the court’s charge in respect to service of notice presents reversible error.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1909, which reversed an order of Special Term granting a motion for leave to file and serve a supplemental complaint and denied said motion. The nature of the action, the facts, so far as material, and the question certified, are stated in the opinion.

<p>Evidence — books of account — action to recover upon a fire insurance policy — erroneous refusal to allow plaintiff to refresh his recollection of items from stock book.</p> <p>In an action to recover upon a five insurance policy plaintiff, who testified that most of his books of account were destroyed by fire, and that he could not remember the details of his stock, was not allowed to refresh his recollection from his stock book, memorandum of sales previous to the trial or from an inventory taken before the fire, nor to state approximately quantities of the various items on hand at the time of the loss, the object of the excluded evidence being to establish approximately the stock on hand at the date of the fire, which occurred in April, by working from the inventory of the stock on hand in the previous January as a basis, adding thereto purchases up to the time of the fire and deducting therefrom the amount of the sales. Held, error.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 18,1909, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint. The question certified to us is the one whether plain- tiff’s complaint states facts sufficient to constitute a cause of action.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 27, 1909, affirming a judgment in_favor of defendant entered upon a verdict directed by the court and an order denying a motion for 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 facts, so far as material, are stated in the opinion.</p>

<p>Evidence — proof of mailing of letters — when insufficient.</p> <p>Where the question is whether a letter was sent by mail it a certain time in the absence of any evidence as to its being deposited with the post office authorities, the rule requires that the proof she 11 establish the existence of a course of business, or of office practice, according to which it naturally would have been so deposited.</p> <p>Where the testimony was that the original letters, of which copies were offered in evidence, were addressed to the plaintiff, sealed, stamped, and put in a box, or tray, “on my desk to be mailed in the post office, the same as I always do with every letter going from my office. * * * They were put there for the'purpose of being mailed by somebody in ■ my employ. I am head of a big insurance company down there. The letters are taken from that tray periodically through the day * * * by the clerk, whose duty it was to gather up the mail and post it. That was the way that all the mail that emanated from my office always went through the post. That was the regular course of business in my office every day ; ” held, that this fell short of proof warranting the presumption that the letters had been mailed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The case was properly tried at an Equity Term ; and if it were an action at law the defendant waived a jury trial by proceeding to trial at equity. (Code Civ. Pro. § 1009; T. N. Bank v. Shields, 55 Hun, 274; Rogers v. Straub, 75 Hun, 264; Side v. Brennan, 7 App. Div. 273; Tracy v. Falvey, 102 App.

Motion to dismiss an appeal from an interlocutory judgment of Special Term, entered June 18,1907, brought up for review iñ connection with an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 31,1909, affirming a final judgment in favor of plaintiff entered upon the report of a referee.

The nature of the action and the facts, so far as material, are stated in the opinion. In any proceeding for the assessment or taxation of real property, the procedure upon which the assessment is founded must be a strict compliance with the statutory provisions in relation thereto. (Merritt v. Vil. of Port Chester, 71 N. Y. 309; Gilbert v. C. T. Co., 3 Johns.

Motion by the plaintiff and respondent to substitute the administrator of Jeanette Earrand, a deceased defendant and appellant, as a party to the appeal in this court.

<p>• Bills, notes and checks — the mere attachment of a seal to a promissory note does not make it a sealed instrument — when the six years’ Statute of Limitations applies thereto.</p> <p>The mere attaching of a seal after the signature upon a promissory note does not raise a presumption that the note is a sealed instrument unless there be a recognition of the seal in the body of the instrument by some such phrase as “ witness my hand and seal” or “signed and sealed.”</p> <p>Semble, a mortgage given to secure two notes of equal amount, one payable in six months and the other in eighteen months, executed and acknowledged as required by law and duly recorded, is entitled to be received in evidence without further proof and, being acknowledged, is an admission of the making of notes corresponding in date,-names and amounts with those named in the mortgage and, hence, is prima facie evidence, to that extent, of the notes secured thereby. This is not sufficient, however, to permit one of these notes, claimed to be unpaid, to be received in evidence without other proof of its identity. The burden of proof rests upon the party offering it and he must supply further evidence showing that it is the genuine paper described in the mortgage.</p> <p>In a proceeding for a decree directing the sale of decedent’s real estate for the payment of her debts, the claim was based upon a promissory note secured by a second mortgage upon other real estate of decedent upon which it had ceased to be a lien by reason of the foreclosure of a first mortgage without bringing sufficient to pay the amount secured thereby. The note, which became due and payable in 1893, is in the ordinary form of a promissory note for value received, bearing the signature of the decedent and after the signature a seal, with nothing in the body of the note or signature to indicate that it was intended to be a sealed instrument. The petition for sale of the real estate, which was made in 1907, alleges that the claim was for the principal of the note with interest from 1896. There is uncontradicted evidence that no principal or interest has been paid upon the note since its maturity, field, that the seal attached to the note should be treated as surplusage, that the six years’ Statute of Limitations applies, and that the proceedings should be dismissed.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 19, 1909, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint, The nature of the action, the facts, so far as material, and the question certified are stated in the opinion. The complaint does not state a cause of action in equity. The plaintiff’s right, if any, is in an action at law upon a debt.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant was not negligent in maintaining an uncovered crossing at the locality in question. (Lafflin v. V. & S. R. R. Co., 106 N. Y. 136; Harley v. B. C. Mfg. Co., 142 N. Y. 31; Healy v. B., R. & P. Ry. Co., 111 App. Div. 618; McKenna v. G. W. C. Co., 83 N. E. Rep. 113; Burns v. O. S. I. & M. Co., 188 N. Y. 175; Quigley v. Levering, 167 N. Y. 58; Hart v. Village of Clinton, 115 App.

Walbridge, deceased. The facts, so far as material, are stated in the opinion. The words “ current market price ” are synonymous with and simply meant “ present market value.” (3109 Cases of Champagne, 23 Fed. Cas. 1168; Sharpe v. United States, 112 Fed.

The facts, so far as material, are stated in the opinion. The relator was subject to the tax as its capital stock was employed in business during the preceding year. (People ex rel. Steinway & Sons v. Kelsey, 108 App. Div. 138; People ex rel. W. & H. S. R. Co. v. Miller, 181 N. Y. 328; People ex rel. H. A. Assn. v. Kelsey, 110 App. Div. 617; 184 N. Y. 573; People ex rel. V. R. Co. v. Glynn, 194 N. Y. 387; People ex rel. F. S. R. Co. v. Kelsey, 110 App.

The facts, so far as material, are stated in the opinion. Tho policy of New York state in taxing corporations for state purposes has always been to base the tax on the actual value and condition of the company. (N. Y. & E. R. F. Co. v. Roberts, 168 N. Y. 14.) R. Floyd Clarke for Uvalde Asphalt Paving Company, intervening.

The nature of the action and the facts, so far as material, are stated in the opinion. The decision of the Appellate Division holding that the six years’ Statute of Limitations was a bar to a recovery by the plaintiff in this action was error. (Anderson v. Nicholas, 28 N. Y. 600.) The six years’ Statute of Limitations is a bar to a recovery by the plaintiff in this action. (Code Civ. Pro. §§ 380, 382; Allen v. Miller, 17 Wend. 202; Burt v. Meyers, 37 Hun, 277)

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 4, 1910, which reversed an order of Special Term denying a motion- for a peremptory writ of mandamus to compel defendant to reinstate the relator in the office of captain in the police force of the city of,New York and granted said motion.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The defendant’s action in retiring the relator ivas clearly within the discretionary powers conferred upon him by law. (People ex rel. Metcalf v. McAdoo, 48 Misc. Rep. 420; 109 App. Div. 892; 184 N. Y. 268; People ex rel. Apfel v. Casey, 11 App. Div. 211; People ex rel. Price v. Bingham, 125 App. Div. 722; 193 N. Y. 610; People v. Pinckney, 67 Hun, 428; Matter of Stuyvesant R. E. Co., 40 Misc. Rep. 205; People ex rel. Washburn v. French, 47 Hun, 635; Matter of Hodgins v. Bingham, 196 N. Y. 123; 128 App. Div. 151.)</p> <p>The police commissioner was without power to remove the relator. (People ex rel. Mason v. McClave, 99 App. Div. 89; People ex rel. Maloney v. Douglass, 195 N. Y. 149; People ex rel. Wood v. Lacombe, 99 N. Y. 49; Polhemus v. F. R. R. Co., 123 N. Y. 502.)</p>

Appeal, by permission, from an order of the Appellate' Division of the Supreme Court in the fourth judicial department, entered July 10, 1909, which reversed an order of Special Term whereby the clerk was directed to strike from a judgment formerly entered in this action the words “ on the merits ” wherever the same appeared therein. The general history of this protracted litigation may be learned by reading the reports of its passage through the courts. (88 App.

This action was brought to restrain the defendant from digging or dredging upon certain land under the waters of Great South Bay, in the county of Suffolk, in such a way as to disturb the oysters planted by the plaintiff.

The nature of the action and the facts, so far as material, are stated in the opinion. The trust created by the second paragraph of the will of Thomas Driscoll is invalid, because it suspends the power of alienation beyond the statutory period of two lives in being.

Action to annul a marriage upon the ground that at the time the defendant was married to the plaintiff she had a husband by a former marriage who was still living and that such marriage was in full force. The judgment of the trial court dismissing the complaint on the merits was affirmed by the Appellate Division, one of the justices dissenting. The facts, so far as material, are stated in the opinion.

It is alleged in the complaint that in May, 1907, at the premises known as No. 252 West 93rd street, in the borough of Manhattan, the defendant wrongfully converted certain household furniture and other personal property belonging to the plaintiff of the value of $2,000.

The nature of the action and the facts, so 'far as material, are stated in the opinion. The court erred in permitting the plaintiff 'to testify to conversations with her mother and transactions with Judge Walts, because they.involved personal transactions with her deceased grantor, John M. Cowan.

A-ppeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 9, 1908, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The notice served under the Employers’ Liability Act was sufficient compliance with the statute.

Supreme Court in the fourth judicial department, entered July 17, 1909, which affirmed a judgment of the Oswego County Court rendered upon a verdict convicting the defendant of the crime of criminally receiving stolen property. There were two counts in the indictment against the defendant.

<p>Contract — construction of building contract — when contractor not responsible to sub-contractor for losses caused by delays of architects in furnishing plans and drawings.</p> <p>The relative obligations of parties to a contract are to be determined by the terms of their contract and not by surmise or inference. Their determination is not to be influenced by any considerations save those justified by their agreement; for when parties have made their contract it is the duty of courts to enforce it as they have elected to make it without regard to the fact that, in the light of subsequent events, a hardship may be worked.</p> <p>Plaintiff made an agreement with defendant, a contractor about to erect a building, to furnish and set the granite required under the direction of designated architects, acting “as agents of the owner,” and according to drawings to be furnished him by such architects. Plaintiff was to complete his work on or before a day mentioned, or, upon his failure so to do, a certain sum was fixed as liquidated damages for each day’s delay. The contract further provided that, in case plaintiff should be delayed through the act, neglect or default of the defendant, or the architects, or any other contractor employed by defendant, the term fixed for the completion of the work should “be extended for a period equivalent to the time lost by reason of any or all of the causes aforesaid.” Held, that plaintiff cannot recover from the defendant for losses arising from the delays of the architects in furnishing necessary-drawings. The express and peculiar provisions of the contract between plaintiff and defendant refer the former to the owner’s agents, the architects, and offset their delays in furnishing plans by equivalent extensions óf time for completion. These provisions negative the assumption that it was within the contemplation of the parties that any obligation rested upon the defendant to respond for such defaults and compel the construction that the contrary was intended and provided for.</p>

28, 1909, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The court in its charge and its refusals to charge and its conduct of the trial erred in failing to instruct the jury that defendants discharged their duty if they left a safe place to alight and notified the railroad thereof. (Wolff v. T. A. R. R. Co., 67 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in refusing to allow defendant to offer evidence of fraud. (Williamson v. Wager, 90 App. Div. 186; Babcock v. Anson, 122 App. Div. 73; Town of Hadley v. Garner, 116 App. Div. 68; Baylies’ Code Pl. & Pr. 231; Homire v. Rodgers, 74 Iowa, 395; Farnham v. Le Bolt & Co., 133 App.

The plaintiffs, husband and wife, are actors by profession, and the defendant is a domestic corporation engaged in the business of managing theatres, organizing theatrical companies and producing theatrical and musical performances. In July, 1905, the plaintiffs and the defendant entered into an agreement in writing, by the terms of which the latter employed the former to act in musical comedy or farce at salaries which were specified for the seasons of 1905 and 1906.

<p>Master and servant — injury to employee by falling" of crane while used for lifting heavy casting — master, who furnished appliances for securing crane, not liable because foreman failed to use them.</p> <p>Plaintiff was injured while engaged in operating a locomotive crane which was in use in lifting a weight of from four to six tons. The crane was furnished with outriggers to counterbalance the weight of heavy castings that were being moved by it and also by a clamp that could be- secured to the rail, thereby holding the car in an upright position in order to. prevent it from capsizing when lifting a heavy weight. The person in charge failed to attach the clamp to the rail and the crane capsized while swinging around and plaintiff was caught under the wreckage. The complaint was at common law and was dismissed on the ground that the operation of the crane was a detail-of the work. Held, that the master, having furnished the crew with appliances that would prevent the capsizing of the car, if prudently and seasonably used, discharged his full duty in the premises. (Cullen v. Norton, 126 N. Y. 1, followed.)</p>

This action was brought to recover a judgment against the defendant for a line because it permitted or required an employee in charge of one of its block signal toiyers to be on duty more than eight hours in twenty-four in violation of the provisions of section 7a of the Labor Law (now section 8 of the Labor Law in the Consolidated Laws) which reads as follows : “ It shall be unlawful for any corporation or receiver, operating a line of railroad, either surface, subway or…

The nature of the action and the facts, so far as material, are stated in the opinion. The principle is established that when land is taken for the construction of a railroad without the consent of the owner, said owner is entitled also to recover for any depreciation caused by the use to which it is appropriated. (Palmer v. L. E. Co., 158 N. Y. 231; Story v. N. Y. El.

The nature of the action and the facts, so far as material are stated in the opinion. The case was improperly submitted to the jury as one under the Employers’ Liability Act. The notice which the trial court held sufficient was inadequate, iusufficient, defective and improper, and did not comply with the-requirements of the act. (Finnigan v. N. Y. C. Co., 194 N. Y. 244; Barry v. D. D. Co., 121 App. Div. 810; Kennedy v. N. Y. T. Co., 125 App. Div. 846; Bori v. Hess, 123 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 12, 1910, which affirmed a judgment of the Monroe County Court rendered upon a verdict convicting the defendants of the crime of robbery in the second degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The defendant’s charter provides: “ Whenever any expenditures to be made or incurred by the common council or city board or any city officer in behalf of the city for work to be done, or materials or supplies tobe furnished, * * * shall exceed two hundred dollars, the city clerk shall advertise for and receive proposals therefor, in such manner as the common council, or as the board or officer charged with making such contract shall prescribe, and the contract therefor shall…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 6, 1909, which reversed an order of the Lewis County Court vacating an order for the examination of the officers of the Beauty Spring Water Company in a proceeding under section 259 of the Tax Law to enforce the collection of a tax. The following questions were certified : “ 1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 4, 1909, modifying an interlocutory judgment of Special Term in favor of plaintiff and reversing a final judgment entered thereon. The nature of the action and the facts, so far as material, are stated in the opinion. The following questions were certified : “ First.

<p>Banking—checks on funds of corporation drawn by treasurer to his own order and deposited to his own account in another bank —when latter bank not liable to corporation for proceeds of such checks drawn out and used by said treasurer.</p> <p>When a corporation opens an account with a banking institution it confers upon that institution the power to determine whether any check drawn upon the account conforms to the contract between the depositor and the depositary. ■ When it makes a mistake in the determination of such a question the depositary may be liable to the depositor; but the depositor cannot recover back the money paid on such check to a third person who has received it in good faith relying on the representation of the deposit bank that the check was all right and has subsequently parted with the money.</p> <p>Where the treasurer of a corporation, authorized to sign checks for it as treasurer, drew checks to his own order and deposited them in.a bank to his own account, the bank on which the checks were drawn paid them, and the bank in which they were deposited, and which collected them, credited the proceeds thereof to the individual account of the treasurer, -who thereafter drew out such proceeds, the latter bank is not liable to the corporation. The deposit bank of the corporation upon which the checks were drawn was its agent to determine whether the checks were properly payable or not. When it decided that they were and paid them to another bank, in which they had been deposited by the treasurer for his individual account, which latter bank received the proceeds in good faith, this was an acknowledgment that its treasurer in fact possessed authority to draw such checks, and the corporation has no right to recover the proceeds from the bank in which they were deposited.</p>

<p>Appeal from an order of the Appellate Division of the npreme Court in the first judicial department, entered Decemer 24, 1909, which reversed an order of Special Term denyng a motion to compel the defendants to correct their return o a writ of certiorari by striking certain parts therefrom and. ranted said motion.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The order of Special Term denying the motion to strike • out portions of the return was in accordance with the practice of our courts. (People ex rel. Higgins v. Grant, 58 Hun, 158; People ex rel. Toohey v. Webb, 50 N. Y. S. R. 46; People ex rel. Lovell v. Melville, 7 Misc. Rep. 214.)</p> <p>The writ of certiorari is issued to review a judicial or quasi-judicial determination and requires that the record of the proceedings, and of the proceedings only, in which the determination was made should be returned by the commission to which it is directed. Such right of review makes it necessary that the commission grant a hearing before determining the issues, and protects a litigant from the determination of his rights upon ex parte investigations of which he is not apprised and concerning which he is given no opportunity to present evidence or be represented by counsel. (Vil. of Saratoga Springs v. S. G., E. L. & Power Co., 191 N. Y. 123; People ex rel. Smith v. Hoffman, 166 N. Y. 462; People ex rel. Burnham v. Jones, 112 N. Y. 597; People ex rel. Heiser v. Gilon, 121 N. Y. 551; People ex rel. Clarke v. Roosevelt, 168 N. Y. 488; People ex rel. Shuster v. Humphrey, 156 N. Y. 231; People ex rel. Shiels v. Greene, 179 N. Y. 195.) Full power is conferred upon the court to correct a return to a writ of certiorari by directing a further return omitting schedules improperly included, and the facts disclose that the portion of the return objected to should be struck out. (Code Civ. Pro. § 2134; People ex rel. Church v. Bd. of Supervisors, 15 Wend. 198; People ex rel. Waterman v. Schellenger, 32 N. Y. S. R. 353; People ex rel. Agnew v. Mayor, etc., 2 Hill, 9; People ex rel. Meehan v. Greene, 103 App. Div. 393; People ex rel. Fitzgerald v. Feitner, 37 App. Div. 362.)</p>

• Appeal from an order of the A ppellate Division of the Supreme Court in the third judicial department, entered September 15, 1909, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 11, 1909, which reversed an order of Special Term holding, in effect, that a reply served by plaintiff was frivolous, and directing judgment for defendant on the pleadings and vacated the judgment subsequently entered on said Special Term order. The following questions were certified : “ 1.

Appeal, by permission, from an order of the Appellate locntory judgment of Special Term overruling a demurrer to the answer and sustained'such demurrer. The following questions were certified: “ 1. Is the alleged defense contained in article 5 of the amended answer herein insufficient in law upon the face thereof? 2. Is the alleged-partial defense contained in article 6 of the answer herein insufficient in law upon tiie face thereof ? 8.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered, March 2, 1909, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion. (See Frank v. Village of Warsaw, 116 App. Div. 618.)</p> <p>The liability of the municipality for failing to remove an obstruction from the street after notice, which is not authorized by it, is based solely on the duty of the municipal authorities to keep the streets in such repair that they may be safely traveled and because the obstruction is treated as a defect in the street itself. It is not liable for everything that happens in the street. Its liability depends in all cases upon negligence. (Hunt v. Mayor, etc., 109 N. Y. 140; Hume v. Mayor, etc., 74 N. Y. 270; Danaher v. City of Brooklyn, 119 N. Y. 241.) The placing of the vending machine where it was located was not an unlawful act and did not make it a nuisance per se, and in such case when the danger to the traveler is not in the obstruction itself, but results from the acts or negligence of a third party in the use of a street, the municipality is not liable. (Fox v. Village of Manchester, 183 N. Y. 148; Howard v. Robbins, 1 Lans. 63; Griffin v. McCullen, 46 Barb. 561; Tinker v. N. Y., O. & W. R. R. Co., 157 N. Y. 321; Flynn v. Taylor, 127 N. Y. 596; Callanan v. Gillman, 107 N. Y. 360; Sweet v. Perkins, 115 App. Div. 784.) The hurt to the plaintiff, not being caused by an unlawful obstruction, but by the acts or negligence of the owner of the peanut roaster in using the street for its operation, the village is not-liable. (Fox v. Village of Manchester, 183 N. Y. 141.) A village is liable for failing to remove an obstruction from the street after notice only on the ground of negligence in permitting the obstruction to remain after it should have caused its removal, and then only for such consequences as might reasonably be apprehended on account of the defective condition of the street caused by the obstruction itself. (Hunt v. Mayor, etc., 109 N. Y. 140; Frankel v. Mayor, etc., 18 N. Y. S. R. 241; Studeor v. Gouverneur, 15 App. Div. 230; Beltz v. City of Yonkers, 148 N. Y. 70; Sutphen v. Town of North Hempstead, 80 Hun, 409; Lane v. Town of Hancock, 142 N. Y. 521; Hubbell v. City of Yonkers, 104 N. Y. 439; Cohen v. Mayor, etc., 113 N. Y. 532; Speir v. City of Brooklyn, 139 N. Y. 6; Landau v. City of New York, 180 N. Y. 48; Rogers v. City of Binghamton, 101 App. Div. 352; Howard v. City of Brooklyn, 30 App. Div. 224.) The plaintiff failed to prove facts from which the jury could find that danger might reasonably be apprehended from the presence of the roaster on the street or that an explosion was likely to occur. The village, therefore, was not liable. (Hunt v. Mayor, etc., 109 N. Y. 140.) Ho actionable negligence was proven, because the omission of duty complained of was nothing more than the failure of the village authorities to perform a police duty or governmental function, for which tlio village is not liable. (Rogers v. City of Binghamton, 101 App. Div. 352; Howard v. City of Brooklyn, 30 App. Div. 217; Toomey v. City of Albany, 38 N. Y. S. R. 91; Whittaker’s Smith on Negl. 248; Levy v. City of New York, 1 Sandf. 465; Leonard v. City of Hornellsville, 41 App. Div. 107; Barber v. City of Roxbury, 11 Allen [93 Mass.] 318; O'Rourke v. Sioux Falls, 5 So. Dak. 447; Borough of Norristown v. Fitz Patrick, 94 Penn. St. 121; Robinson v. Greenville, 42 Ohio St. 625; Arms v. City of Knoxville, 51 Ill. 604; Campbell v. City Council of Montgomery, 52 Ala. 527; Borland v. City of New York, 1 Sandf. 27.) The placing or maintaining of this machine and stand upon the street was not the proximate cause of the injury. (Beltz v. City of Yonkers, 148 N. Y. 79; Beetz v. City of Brooklyn, 10 App. Div. 382; Murphy v. Leggett, 29 App. Div. 315; Laidlaw v. Sage, 158 N. Y. 101; Studeor v. Gouverneur, 15 App. Div. 230; Sutphen v. Town of Hempstead, 80 Hun, 409; Lane v. Town of Hancock, 142 N. Y. 521; Hubbell v. City of Yonkers, 104 N. Y. 439; Burns v. Town of Farmington, 31 App. Div. 364; Frank v. Village of Warsaw, 116 App. Div. 623.) Errors were committed by the court in the charge to the jury. (Hoffart v. Town of West Turin, 90 App. Div. 348; Kirby v. D. & H. Co., 20 App. Div. 473.)</p> <p>A permanent obstruction in a street or highway interfering with the convenience of the public or imperiling the safety of the traveler is an unlawful obstruction and within the definition of a public nuisance. (Davis v. Mayor, etc., 14 N. Y. 506; Hume v. Mayor, etc., 74 N. Y. 264; Landau v. City of New York, 180 N. Y. 48; Frank v. Village of Warsaw, 116 App. Div. 625; Cohen v. Mayor, etc., 113 N. Y. 532; Callahan v. Gilman, 107 N. Y. 365; Ring v. City of Cohoes, 77 N. Y. 83; Rehberg v. Mayor, etc., 91 N. Y. 137; Wells v. City of Brooklyn, 9 App. Div. 61.) Not only was the peanut roaster an obstruction in the street, but its maintenance therein exposed the passers-by to the danger of an explosion or contact with its machinery while in operation, and was thus a public nuisance by statute as well as common law. .(Penal Code, § 385, subd. 3; Johnson v. City of New York, 186 N. Y. 146; Speir v. City of Brooklyn, 139 N. Y. 6; Landau v. City of New York, 180 N. Y. 48.) The contention of defendant’s counsel that a municipality is not liable for the omission of its officers to cause the abatement of a nuisance in the public street, and that it is only liable when it becomes a joint tort feasor in the creation of a nuisance cannot be sustained. (Conrad v. City of Ithaca, 16 N. Y. 158; West v. Vil. of Brockport, 16 N. Y. 161; Saulsbury v. City of Ithaca, 94 N. Y. 27; Nelson v. Vil. of Canisteo, 100 N. Y. 89; Sewall v. City of Cohoes, 75 N. Y. 45; Jorgensen v. Squires, 144 N. Y. 280; Vil. of Canandaigua v. Foster, 81 Hun, 147; Kuchenmeister v. Brown, 13 Misc. Rep. 139.) The fact that the nuisance was maintained during business hours only, and when there was greater danger to persons using the street does not relieve the defendant from the duty of suppressing it. (Murphy v. Leggett, 29 App. Div. 310; Kunz v. City of Troy, 101 N. Y. 344; Davis v. City of New York, 14 N. Y. 406.) The fact that the machine or nuisance was in apparent good order did not relieve the defendant from the duty of abating it. (Ring v. City of Cohoes, 77 N. Y. 83; Rehberg v. City of New York, 91 N. Y. 144; Hunt v. Mayor, etc., 109 N. Y. 134; Frank v. Vil. of Warsaw, 116 App. Div. 628.) The suppression and abatement of the nuisance was a ministerial act and not the exercise of governmental functions or police powers. (Weet v. Vil. of Brookport, 16 N. Y. 163; Rogers v. City of Binghamton, 101 App. Div. 352; Howard v. City of Brooklyn, 30 App. Div. 224; Toomey v. City of Albany, 38 N. Y. S. R. 91.) The maintenance of the peanut roaster in the street was the proximate cause of the injury to plaintiff. (Ehrgott v. Mayor, etc., 96 N. Y. 281; Ivory v. Town of Deer Park, 116 N. Y. 476; Phillips v. N. Y. C. & H. R. R. R. Co., 127 N. Y. 657.)</p>

■ Appeal from a judgment of the Appellate Division of thd Supreme Court in the fourth judicial department, entered July 14, 1909, affirming a judgment in favor of plaintif entered upon a verdict directed by the court. The nature of the action and the facts, so far as materia]| are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1909, vacating a certificate of approval previously granted by it under chapter 483 of the Laws of 1909. The facts, so far as material, are stated in the opinion.</p> <p>The business in which the petitioner is engaged is a lawful one. (H. & G. M. Co. v. H. & W. M. Co., 127 N. Y. 252; Le Grand v. M. M. Assn., 80 N. Y. 638; Snow, Church & Co. v. Hall, 19 Misc. Rep. 656; Matter of Associated Lawyers Co., 134 App. Div. 350.) Tiie court below had full power to make the order of June 18, 1909. (L. 1909, ch. 483.)</p> <p>Chapter 483 of the Laws of 1909 did not provide for the approval by this court of the existence, organization or incorporation of business corporations. (Matter of Associated Lawyers Co., 134 App. Div. 350.) The appellant corporation was not a corporation lawfully engaged in a business authorized by the provisions of any existing statute. (People ex rel. Fairchild v. Preston, 140 N. Y. 552; Matter of White, 118 App. Div. 869; Hannon v. Siegel-Cooper Co., 167 N. Y. 246.) It is the policy of the state and of its laws to restrict the practice of the law to duly qualified individuals. (People v. Woodbury Derm. Inst., 192 N. Y. 454; Han-non v. Siegel-Cooper Co., 167 N. Y. 246; Matter of Clark, 184 N. Y. 222; Hershbach v. Ketchum, 5 App. Div. 324; Matter of Shay, 133 App. Div. 547; Stedwell v. Hartman, 74 App. Div. 126; Hess v. Allen, 24 Misc. Rep. 393.)</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1909, which reversed an order of Special Term quashing a writ of certiorari and denying a motion to strike from the assessment roll of the village .of Haverstraw a special franchise assessment.</p> <p>The relator sued out a writ of certiorari, in order that the action of the defendants, the assessors of the village of Haverstraw, might be reviewed in placing upon the assessment roll of the village a special franchise assessment of $16,800 against the West Shore Bail road Co., the lessor of the relator. When the matter came on for a hearing, at the Special Term, on the return of the writ, that court dismissed the proceeding. Upon appeal from the order of the Special Term, the Appellate Division, in the second department, reversed the same and remitted the proceeding to the Special Term; but, further, granted leave to the defendants to appeal to this court and certified the following questions :</p> <p>“First. Was the assessment made by the State Board of Tax Commissioners of the relator’s special franchise in the town of Ilaverstraw such a valid and legal assessment of such franchise as enabled the assessors of the village of Haverstraw to make the assessment in question ?</p> <p>“ Second. Does each separate crossing or highway occupation by the relator herein constitute a separate special franchise ?</p> <p>“ Third. Should that part of the special franchise of the relator situated in the village of Haverstraw have been assessed by the State Board of Tax Commissioners separately from the entire special franchise of said relator in the town of Haverstraw? ”</p> <p>The action of the defendants in ascertaining and determining the portion of the valuation to be placed upon the village tax roll was legal and did not amount to an assessment of a special franchise. (L. 1896, ch. 908, § 2; L. 1899, ch. 712, § 43.) Each separate crossing or highway occupation does not constitute a separate special franchise or require a separate valuation. (People ex rel. M. S. Ry. Co. v. Tax Comrs., 174 N. Y. 417; 199 U. S. 1.) The highway crossings of the relator in the town of Haverstraw constitute a special franchise within the meaning of the Tax Law. (L. 1896, ch. 908, §2; N. Y., L. & W. R. Co. v. Roll, 32 Misc. Rep. 321; People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 169 N. Y. 432; People ex rel. N. Y. C. & H. R. R. R. Co. v. Keno, 61 Misc. Rep. 345; People ex rel. M. S. Ry. Co. v. Tax Comrs., 174 N. Y. 417; 199 U. S. 1; People v. Dayton, 55 N. Y. 367; Hassan v. City of Rochester, 67 N. Y. 528; People ex rel. Joyce v. Brundage, 78 N. Y. 403; Matter of W. S. R. R. Co., 115 N. Y. 442; People v. Adelphi Club, 149 N. Y. 5.)</p> <p>The assessment made by the state board of tax commissioners of the relator’s special franchise in the town of Haverstraw was not such a valid or legal assessment of such franchise as enabled the assessors of the village of Haverstraw to make the assessment in question. (Cons. Laws, ch. 60, § 43; People ex rel. M. S. R. Co. v. Tax Comrs., 174 N. Y. 417; People ex rel. J. W. S. Co. v. Tax Comrs., 196 N. Y. 39; People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 169 N. Y. 432; People ex rel. R. T. Co. v. Priest, 181 N. Y. 300.) Each separate crossing or highway occupation by the relator constitutes a separate special franchise. (People ex rel. S. R. Co. v. Tax Comrs., 174 N. Y. 417; People v. Fitzgerald, 180 N. Y. 275; People ex rel. R. M. Co. v. Priest, 75 App. Div. 131.) That part of tlie special franchise of the relator situated in the village of Haverstraw should have been assessed by the state board of tax commissioners separately from the entire special franchise of said relator in the town of Haverstraw. (People ex rel. v. M. S. Ry. Co. v. Tax Comrs., 174 N. Y. 417; People ex rel. H. R. & R. R. R. Co. v. Tax Comrs., N. Y. L. J. April 24, 1909.)</p>

Term without a jury and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. It was not error for the court below to entertain the plaintiff’s motion made at the trial to strike out the defense of conspiracy. (Rankin v. Bush-Brown, 108 App. Div. 294; Rankin v. Bush, 108 App. Div. 295; Fox v. Vizethann, 117 App. Div. 127.) It was not error for the trial court to hold that the defense of conspiracy was insufficient in law.

Appeal, by permission, 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 denying a motion for a retaxation of costs.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered Hovember 5,1909, which affirmed an order of Special Term dismissing a writ of certiorari and confirming the proceedings of defendants in assessing for purposes of taxation certain shares of stock of hanks located in the county of New York owned by the relator.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 10, 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 promissory note.</p>

of the Supreme Court in the second judicial department, entered May 14, 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 for an assault alleged to have been committed by defendant’s employees in ejecting plaintiff from a street car.

Application by the counsel assigned to defend an appeal in a capital case for compensation under section 308 of the Code of Criminal Procedure.

27, 1908, 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 personal injuries alleged to have been sustained through defendant’s negligence.

<p>Appeal — when reversal by the Appellate Division upon the law unwarranted.</p> <p>The evidence and exceptions, on the trial of an action to recover on a policy of fire insurance for damage to a vessel, examined and held, not to warrant a reversal by the Appellate Division upon the law.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 10, 1908, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 23, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic’s lien.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 19,' 1909, 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 for personal in juries alleged to have been sustained through defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered April 6, 1909, which reversed an order of the court at a Trial Term granting a motion for a peremptory writ of mandamus to compel the defendants to restore the relator to the position of first assistant engineer in the tire department of the city of Elmira and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 21, 1909, 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 personal injuries alleged to have been sustained through the defendant’s negligence.</p>

<p>Trial.</p> <p>It is reversible error on trial of indictment for grand larceny to require defendant, over objection, to testify that he had commenced a civil action for false arrest.</p>

',judgment of the Niagara County Court, rendered, upon ‘ ¿¿verdict convicting the defendant of the crime of grand larcency in the second degree. . • • •

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered ecember 26,1908, affirming a judgment in favor of plaintiffs ntered upon a decision of the court at a Trial Term, a jury laving been waived, in an action of replevin.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 26, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to restrain the defendant from using the name J. B. McElfatriclc in connection with any business.</p>

<p>Appeal from a judgment rendered March 30,1909, at a Trial Term for the county of Rensselaer, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

<p>Appeal from a judgment rendered March 30, 1909, at a Trial Term for the county of Rensselaer, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1909, which affirmed an order of Special Term denying a motion for an injunction to restrain the defendants from seizing, removing or canceling a liquor tax certificate.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 23, 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 for personal injuries alleged to have been sustained through the negligence of defendant.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 0, 1909, which reversed a judgment of the Erie County Court in favor of defendant entered upon a verdict directed by the court and an order denying a motion for a new trial and granted a new trial in an action to recover for an alleged breach of an agreement of indemnity.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 13, 1909, affirming a judgment in favor of defendant entered upon a verdict directed by the court 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 first judicial department, entered February 18, 1909, reversing a judgment in favor of plaintiff entered upon the report of a referee and granting a new trial in an action to recover on a policy of fire insurance.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 19’, 1909, modifying and affirming as modified a judgment in favor of plaintiff entered upon the report of a referee.</p>

<p>Appeal from an order of the Appellate Division of the npreme Court in the first judicial department, entered une 18, 1909, which affirmed a decree of the New York County Surrogate’s Court judicially settling the accounts of the executor and trustee under the will of Leocadio Farrell, deceased. ■</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 27, 1908, 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 upon a policy of life insurance.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 11,1909, in favor of defendant, upon the submission of a controversy, under section 1279 of the Code of Civil Procedure, as to the marketability of the title to certain real property.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 30, 1908, affirming a judgment in favor of defendants entered upon a verdict directed by the court in an action to recover for an alleged breach of contract.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 25, 1909, 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 pi’omissory note.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 11, 1908, reversing a judgment in favor of plaintiff entered upon a .decision of the court at a Trial Term without a jury in an action to recover upon certain surety bonds.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 5,1909, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover the amount of an alleged deposit with defendant to the credit of the plaintiff.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 10, 1909, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Motion for re-argument. (See 198 N. Y. 160.)</p>

Appeal, bj permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 9, 1909, which reversed an order of Special Term granting a motion for leave to amend the summons and complaint in the above-entitled action and denied said motion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 9,1909, which reversed an order of Special Term granting a motion for leave to amend the summons and complaint in the above-entitled action and denied said motion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 10, 1909, 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 for personal injuries alleged to have been sustained through defendant’s negligence.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 15, 1909, affirming a judgment in favor of plaintiff entered upon a dismissal of the complaint by the court on trial at Special Term in an action to compel distribution of a fund donated for the relief of sufferers from a public disaster.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 15, 1909, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to establish a lien on real property.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 16, 1909, in favor of plaintiff, upon the submission of a controversy, under section 1279 of the Code of Civil Procedure, as to whether the defendants are liable for a penalty in failing to make return to the plaintiff as to insurance premiums received by them as attorneys in fact of the “ United States Lloyds.”</p>